NY Civil Rights Lawyer
Sex Ed 101: Federal Remedies if Teachers Cross the Line
Todd J. Krouner and Cristina A. Velez
11-13-2006
Recently, the media has covered a rash of teacher/student sex scandals. As public school students go into courts to seek redress, for their sexual harassment and abuse, some legal remedies are being precluded.
Circuit Split
Currently, there is a split among the federal circuit courts of appeal regarding whether a plaintiff can maintain claims under both Title IX and §1983 for the same incident. The judicial split is due to varying interpretations of Middlesex County Sewerage Authority v. National Sea Clammers Association, 448 US 1 (1980) ("The Sea Clammers Doctrine").1
In Sea Clammers, the court held that "[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under §1983." Id., 448 US at 20. Because the remedies in Title IX are not sufficiently comprehensive, students who have been sexually harassed or abused by their teachers should have the remedies of both Title IX and §1983.
The remedies available under Title IX are grounded in both statutory and common law. "First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices." Cannon v. University of Chicago, 441 US 677, 704 (1979). Initially, the remedy under Title IX was limited to a statutory procedure for terminating a recipient's federal funding, but in Cannon, the Supreme Court determined that Title IX contained an implied private right of action. In Franklin v. Gwinnett County Public Schools, the Court held that damages were available in a Title IX suit. The individual protections are limited however, because "Title IX does not permit suits against an individual defendant." Cinquanti v. Tompkins Cortland Community College, 2000 U.S. Dist. LEXIS 9433, *22-3 (NDNY 2000).
The Supreme Court has stated that "Congress did not envision a recipient's liability [in cases where a teacher has been sexually harassing a student]." Gebser, supra, 524 US at 287-8. The Court held "that damages may not be recovered in those circumstances unless an official of the school district who at a minimum has authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct." Id., at 277. Students are often left with no remedy for their claims of sexual harassment or abuse because such officials cannot be named as defendants under Title IX.
In contrast, "§1983 authorizes civil suits for equitable relief and money damages against government officials acting under the color of government authority who subject individuals to 'deprivation of any rights privileges, or immunities secured by the Constitution and laws' 42 USC 1983." Johnson v. Newburgh Enlarged Sch. Dist., 239 F2d 246, 250 (2d Cir. 2001). "As a general rule, 'state employment is sufficient to render the defendant a state actor . . . [f]or purposes of a §1983 action, a defendant necessarily 'acts under color of state law when he abuses the position given to him by the State.'" Hayut v. State University of New York, 352 F3d 733, 744 (2d Cir. 2003) (internal citations omitted). "The ability to sue for money damages under §1983 serves both as an incentive for government agents to operate within the confines of their prescribed authority and as a remedy for vindicating federal civil rights." Johnson, supra, at 250 (citing Anderson v. Creighton, 483 US 635 (1987)). Under §1983, a student can make a claim against tortfeasors in their individual capacities. This remedy is not available under Title IX.2 In addition, under Title IX, plaintiff has a higher, if not almost impossible, burden of proving actual notice of the sexual assault.3 By contrast, §1983 requires constructive notice of the propensity to sexually harass or abuse.4
'Bruneau v. S. Kortright Central'
In Bruneau v. South Kortright Central School District, 163 F3d 749 (2d Cir. 1998), the U.S. Court of Appeals for the Second Circuit ruled that Title IX preempts claims under §1983. The plaintiff was sexually harassed by her classmates. "According to [Ms.] Bruneau, the male students regularly called her and her female classmates sexually derisive names [i.e., "dog face bitch"] . . . , the girls experienced, bra snapping, hair pulling, spitting, shoving of paper down their blouses . . . and other physical abuse." Bruneau, supra, 163 F3d at 752. Plaintiff's parents subsequently withdrew their daughter from the school and filed suit under Title IX and §1983. Id., at 753-5.
The Second Circuit held:
Congress intended Title IX to be the appropriate vehicle to protect all of plaintiff's rights arising in this situation as Title IX's enforcement scheme fully addresses her constitutional claims against the School District and School Board. Consequently, we hold that plaintiff may not maintain her §1983 claim and thereby bypass the comprehensive remedial scheme created in Title IX. Id., at 758.
The Second Circuit ultimately dismissed Ms. Bruneau's §1983 claim in its entirety.
Section 1983 has been upheld in cases involving battery of students by their teachers. See, e.g., Johnson, supra. There, the plaintiff "filed suit pursuant to §1983 asserting Fourteenth Amendment substantive due process violations based on an alleged assault on their son by his public school gym teacher." Id.
Section 1983 has not only been used to redress physical abuse of students by teachers, it has also been utilized in cases of student/teacher sexual abuse. In Robert G. v. Newburgh City Sch. Dist., 1990 U.S. Dist. LEXIS 91 (SDNY 1990), the plaintiff was "sexually assaulted, during school hours and on school property, by . . . a substitute teacher." at *1.
[T]he plaintiff has alleged a deprivation of protected liberty interest, i.e., an invasion of her person, at the hands of a public school employee on school property during school hours, which deprivation was the direct result of the alleged deliberate indifference of his governmental employers and supervisors, the School District, the School Board and the individual school officials. Accordingly, this argument fails. Id., at *5-6, citing Stoneking v. Bradford Area Sch. Dist., 882 F2d 727 (3d Cir. 1989).
As Stoneking instructs, "[a] teacher's sexual molestation of a student is an intrusion of the school child's bodily integrity not substantially different for constitutional purposes from corporal punishment by teachers." Stoneking, 882 F3d at 828. Therefore, students who have been sexually abused by their teachers should have the same constitutional remedies under §1983 that are provided to students who have been physically assaulted by their teachers.
Applying 'Sea Clammers'
When courts apply Sea Clammers to Title IX/§1983 situations, they make two mistakes. First, the courts overlook the fact that the individual remedies used to aid in the enforcement of Title IX are judicially created and not statutorily created. "The only enforcement mechanism that Title IX expressly provides is a procedure to terminate federal support to institutions that violate Title IX." Crawford v. Davis, 109 F3d 1281, 1284 (8th Cir. 1997). Second, the courts overlook the fact that plaintiffs are using §1983 to redress the violations of their bodily integrity (which is predicated on the substantive due process rights arising under the Fourteenth Amendment), they are not using §1983 to enforce the violation of a federal statute. Several circuit courts have recognized this difference.5
When teachers use their authority to either sexually harass or abuse a student they are abusing their authority to violate that student's bodily integrity. "[T]he Supreme Court has been careful to distinguish between 1983 claims predicated on statutory rights and those based on constitutional rights; specifically, the Court has applied the Sea Clammers comprehensiveness test in the former cases but never in the latter cases." Michael A. Zwibelman, Comment: "Why Title IX Does Not Preclude Section 1983 Claims," 65 U. Chi. L. Rev. 1465, 1471-2 (1998). Several courts have missed this distinction.
In Bruneau, the Second Circuit cited to the U.S. Courts of Appeal for the Third and Seventh Circuits for authority that a §1983 claim is subsumed by Title IX. Bruneau, supra, 163 F3d at 758. However, none of those cases involved sexual abuse of a student by a teacher.
Since Bruneau was decided, the Seventh Circuit has changed its position. In Delgado v. Stegall, 367 F3d 668 (7th Cir. 2004), Judge Richard Posner explained that the presence of a Title IX claim does not bar all §1983 claims that arise from the same set of facts. In that case, a university professor was sexually harassing one of his students. Judge Posner stated:
The only possible effect of applying the Sea Clammers doctrine to this case would be to immunize [the professor] from liability for his federal constitutional tort . . . [T]here is no reason to suppose that holding that Title IX wiped out a big piece of §1983 would serve any of the purposes that animated Congress in passing Title IX. Delgado, supra, 367 F3d at 674-5.
"The Supreme Court on repeated occasions has made clear that courts must invoke a strong presumption against §1983 preclusion." Zwibelman, supra, at 1474. Accordingly, the Seventh Circuit allowed a §1983 claim against the individual professor for his alleged sexual harrassment. Delgado, supra, at 675.
In Bruneau, the Second Circuit left the door open when it stated that it "need not determine whether Title IX subsumes a §1983 claim against individual state actors in a school setting." Bruneau, supra, at 762. Thus, the Second Circuit should permit individual liability under §1983 against state actors who violate a student's bodily integrity, even if a Title IX claim is also made. The U.S. District Court for the Northern District of New York has allowed such claims. See Cinquanti, supra, at *23 (allowing §1983 claim against the allegedly sexually harassing professor); See also, Hayut v. State University of New York, 127 FSupp2d 333, 340 (NDNY 2000)(allowing individual liability under §1983 against a harassing professor and his supervisors).
Conclusion
When a public school student has been sexually abused by his or her teacher, Title IX and §1983 are most effective when used together to redress both the violation of the student's right to be free of gender discrimination and the violation of the student's right to bodily integrity.
Todd J. Krouner practices in Chappaqua, N.Y. Cristina A. Velez practices in Tallahasee, Fla., where she also serves as an adjunct professor of political science at Florida State University.
Endnotes:
1. The Second and Third circuits hold that a Title IX claim and a §1983 claim cannot be pursued together. The Sixth, Eighth and Tenth circuits allow the two claims to be brought at the same time. The Seventh Circuit allows both claims to be brought at the same time under certain circumstances.
2. In Canty v. Old Rochester Reg'l Sch. Dist., 54 FSupp2d 66 (D. Mass. 1999), the district court provided a chart comparing the two statutes.
3. See, Gebser, supra.
4. See, Baynard v. Malone, 268 F3d 228, 238 (4th Cir. 2001) (finding that while the principal did not have satisfactory notice under Title IX, he did have satisfactory notice under §1983).
5. In Crawford, supra, the U.S. Court of Appeals for the Eight Circuit held, "Sea Clammers in no way restricts a plaintiff's ability to seek redress via §1983 for the violation of independently existing constitutional rights, even if the same set of facts also gives rise to a case of action for a violation of statutory rights." 109 F3d at 1284. In Lillard v. Shelby Cty Board of Ed., 76 F3d 716 (6th Cir. 1996) the Sixth Circuit clarified why Sea Clammers does not bar all §1983 claims when a Title IX claim is present. "First, and most crucial, is the fact that in Sea Clammers, the plaintiff's §1983 action sought to enforce the rights created by federal statutes which did not provide for a private right of action, while here, plaintiffs seek to enforce wholly independent, and totally distinct, substantive due process right." Id. at 722-3. The Lillard line of reasoning was adopted by the Tenth Circuit in Seamons v. Snow, 84 F3d 1226, 1234 (10th Cir. 1996), concluding that plaintiff's "§1983 action is not barred by Title IX."