finding that school officials were not entitled to qualified immunity because “[w]ell prior to 1988 the protection afforded under the Equal Protection Clause was held to proscribe any purposeful discrimination by state actors, be it in the workplace or elsewhere, directed at an individual solely because of the individual’s membership’ in a protected class.”
How later courts described this case
- finding that school officials were not entitled to qualified immunity because “[w]ell prior to 1988 the protection afforded under the Equal Protection Clause was held to proscribe any purposeful discrimination by state actors, be it in the workplace or elsewhere, directed at an individual solely because of the individual’s membership’ in a protected class.”
- concluding it comports with leading Supreme Court precedent to apply Title VII principles to Title IX claims because the Supreme Court has "likened the duties of a school district to remedy sexual harassment under Title IX, to the Title VII duties of an employer.”
- holding that it was clearly established well prior to 1988 that the Equal Protection clause proscribed any purposeful discrimination by state actors on the basis of gender
- affirming the district court’s holding that individual defendants were not entitled to qualified immunity from the plaintiffs peer sexual harassment claim based upon a known hostile environment
Written by the judges who cited it.
The opinion
CYNTHIA HOLCOMB HALL, Circuit Judge,
concurring in part and dissenting in part:
I respectfully dissent from the majority’s holding that the defendants are nót entitled to qualified immunity on the plaintiffs’ Title IX claim based on their failure to stop peer sexual harassment among students.
The only issue on appeal is whether the individual defendants are entitled to qualified immunity. The defendants are entitled to-a dismissal based on qualified immunity “[u]n-less the plaintiffs allegations state a claim of violation of clearly established law.” Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806, 2815-16 , 86 L.Ed.2d 411 (1985). “The standard for determining qualified immunity is objective. ‘If the law at [the time of the. official’s actions] was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.’ ” Doe v. Petaluma City Sch. Dist., 54 F.3d 1447 , 1450 (9th Cir.1995) (citation omitted).
The majority holds that Oona’s rights under the Fourteenth Amendment and Title IX were clearly established on the date of the alleged conduct and affirmed the district court’s denial of qualified immunity. I disagree. The law does not clearly impose a duty under Title IX on school officials to stop peer sexual harassment. Therefore, the defendants are entitled to qualified immunity on this claim to the extent it relates to the Title IX peer harassment allegations.
There are no cases holding that students have a right under Title IX to be free from peer sexual harassment. Instead, the majority’s determination that Title IX clearly protects students from peer harassment depends upon an analogy between Title VII and Title IX: Because peer harassment in the workplace is actionable under Title VII, Ellison v. Brady, 924 F.2d 872 (9th Cir.1991), therefore, peer harassment in schools is clearly actionable under Title IX.
It is correct that courts have applied Title VII principles in Title IX cases. Most significantly, in Franklin v. Gwinnett County Pub. Schs., the Supreme Court relied on a Title VII case to find that Title IX protects students from teacher-student sexual harassment:
Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to discriminate on the basis of sex, and “when a supervisor sexually harasses a • subordinate because of the subordinate’s sex, that supervisor ‘discriminate^]’ on the basis of sex.” We believe the same rule should apply when a teacher sexually harasses and abuses a student.
503 U.S. 60, 75 , 112 S.Ct. 1028, 1037 , 117 L.Ed.2d 208 (1992) (quoting Meritor Sav. *479 Bank, FSB v. Vinson, 477 U.S. 57, 64 , 106 S.Ct. 2399, 2404 , 91 L.Ed.2d 49 (1986)); see also Doe v. Claiborne County, 103 F.3d 495 (6th Cir.1996) (adopting Title VII principles to recognize Title IX hostile-environment claim for teacher-student harassment); Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463 (8th Cir.1996) (borrowing from Title VII to find a Title IX right against same-sex teacher-student harassment).
The majority, relying on Petaluma, concludes that the Supreme Court in Franklin clearly established that Title VII rights are analogous to Title IX rights. Therefore, because peer harassment has been recognized under Title VII, the majority holds that peer harassment is clearly recognized under Title IX. I do not believe that Petaluma mandates this interpretation, nor do I believe that Franklin sweeps so broadly.
The facts and issues in Petaluma, a student peer harassment case, were almost identical to those in this case. The Petaluma court determined that a school counselor was entitled to qualified immunity because he did not have a clearly established duty to prevent peer sexual harassment under Title IX. The conduct in Petaluma arose before the Supreme Court’s decision in Franklin; therefore, the court was unable to apply the ruling in Franklin to its decision. However, the court recognized,
If [the counselor] engaged in the same conduct today, he might not be entitled to qualified immunity. We would then be required to consider the Supreme Court’s recent Franklin decision. It might be that today a Title VII analogy likening [the counselor] to an employer and Doe to an employee might provide an argument to consider in a similar Title IX case. However, those arguments are not properly before us.
Petaluma, 54 F.3d at 1452. Petaluma properly declined to determine the reach of Franklin. Instead, it merely reminded the court that the effect of Franklin must be considered in future Title IX peer harassment cases. This is such a case.
Franklin does not require this court to apply Title VII principles to all Title IX cases. It merely states that teacher-student harassment is sufficiently analogous to employer-employee harassment that “the same rule should apply.” 503 U.S. at 75 , 112 S.Ct. at 1037 . However, the similarity between peer harassment among employees and peer harassment among students is not as clear: While schools do hire and fire their teachers, they do not hire and fire their students. Although an argument can certainly be made for applying Title VII principles to this Title IX case, the analogy is neither clear nor required by Franklin; therefore, qualified immunity should not have been denied with respect to the peer harassment. See Davis v. Monroe County Bd. of Educ., 120 F.3d 1390 , 1399-1400 n. 13 (11th Cir.1997) (en banc) (explicitly rejecting this analogy because “the Supreme Court has never discussed student-student sexual harassment or generally applied Title VII jurisprudence to [all] Title IX cases”).
Based on the foregoing reasons, I respectfully dissent. At the time of the defendants’ actions, the law did not clearly establish the defendants’ duty under Title IX to stop peer sexual harassment among students.