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July 21, 1993

PATRICIA H., individually and as Guardian Ad Litem for JACKIE H., a Minor and REBECCA H., a Minor, Plaintiffs,

The opinion of the court was delivered by: WILLIAM H. ORRICK

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .

 Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681(a).

 The major question raised by the cross-motions for summary judgment now before the Court *fn1" is whether the mandate above quoted proscribes the maintenance of a sexually hostile educational environment in any education program or activity receiving federal financial assistance. For the reasons herein stated, the Court holds that it does.

 Plaintiffs also move for summary adjudication on the question whether of the administrative proceeding involving Charles Hamilton collaterally estops him from litigating in this forum his alleged molestation of Jackie H. For the reasons herein stated, the Court holds that it does.



 The Supreme Court has directed federal courts to interpret Title IX to give it "a sweep as broad as its language." North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 72 L. Ed. 2d 299, 102 S. Ct. 1912 (1982) (quoting United States v. Price, 383 U.S. 787, 801, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966)). The implementing regulations of Title IX forbid any sex-based limitation "in the enjoyment of any rights, privilege, advantage or opportunity" related to federally funded education. 34 C.F.R. § 106.31(b)(7). Clearly, Title IX bans sex discrimination in educational programs and activities receiving federal funds. Thus, courts have found that Title IX bans the failure to accommodate the interests and ability of one sex in college athletic programs, see Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993), and sex discrimination in school admissions, see Cannon v. University of Chicago, 441 U.S. 677, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). The issue of sexual harassment in an educational setting as a form of sex discrimination has been less frequently before the courts, however, and the viability of a sex discrimination claim based on hostile environment sexual harassment under Title IX is a novel question.

 The Court is not without guidance in its endeavors to respond to the question. Logically, it turns to other civil rights law, Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, 2000e-2(a)(1). *fn2" Title IX "was patterned after Title VI of the Civil Rights Act of 1964." Cannon, 441 U.S. at 694. There is a great deal more case law involving sex discrimination claims under Title VII than under Title VI, however, and appellate courts have turned to the "substantial body of case law developed under Title VII" for assistance in interpreting Title IX. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 896 (1st Cir. 1988) (plaintiff was both employee and student); see also Mabry v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d 311 (10th Cir. 1987) ("We find no persuasive reason not to apply Title VII's substantive standard regarding sex discrimination to Title IX suits." Id. at 316. "Because Title VII prohibits the identical conduct prohibited by Title IX; i.e., sex discrimination, we regard it as the most appropriate analogue when defining Title IX's substantive standards . . . ." Id. at n.6) (concerning an employment-related sex discrimination claim against a college); Moire v. Temple Univ. Sch. of Medicine, 613 F. Supp. 1360, 1366-67 n.2 (E.D. Pa. 1985), aff'd mem., 800 F.2d 1136 (3d Cir. 1985). There is a sharp dispute between the parties as to just how much guidance Title VII should provide the Court.

 The entire legal theory of sexual harassment has been developed in the context of Title VII. Courts first recognized "quid pro quo" sexual harassment, the conditioning of continuing employment or advancement on sexual favors. See Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979); Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976) (first published opinion recognizing sexual harassment claim), rev'd on other grounds sub nom., Williams v. Bell, 190 U.S. App. D.C. 343, 587 F.2d 1240 (D.C. Cir. 1978). A short time later, courts began to recognize that the creation of a sexually hostile work environment was also actionable sex discrimination under Title VII. See Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934 (D.C. Cir. 1981). The Supreme Court confirmed this view, and created the current test for a hostile environment sex harassment claim in its opinion in Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Harassing conduct must be "sufficiently severe or pervasive [as] 'to . . . create an abusive working environment'" in order to violate Title VII. 477 U.S. at 67 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).

 This analysis insofar as quid pro quo harassment is concerned had been extended to Title IX in a pre-Meritor decision. See Alexander v. Yale Univ., 459 F. Supp. 1 (D. Conn. 1977), aff'd, 631 F.2d 178 (2d Cir. 1980). The Court in Alexander looked to Title VII, reasoning:

It is perfectly reasonable to maintain that academic advancement conditioned upon submission to sexual demands constitutes sex discrimination in education, just as questions of job retention or promotion tied to sexual demands from supervisors have become increasingly recognized as potential violations of Title VII's ban against sex discrimination in employment [citation omitted].

 459 F. Supp. at 4.

 Plaintiffs ask the Court to recognize that Title IX, like Title VII, bans sex discrimination, that sexual harassment is a form of sex discrimination, and that the creation of a sexually hostile educational environment is sexual harassment. Defendants argue that Title IX, as written, does not encompass hostile environment claims, and the Court should leave it to the legislature to enact such an extension of the law. Other courts have seen no distinction between recognizing quid pro quo sexual harassment under Title IX, which the defendants do not oppose, and hostile environment sexual harassment under Title IX. The First Circuit has explicitly applied the Meritor analysis of hostile environment claims to decide the liability of an educational institution under Title IX:

We therefore hold, following Meritor, that in a Title IX case, an educational institution is liable upon a finding of hostile environment sexual harassment perpetrated by its supervisors upon employees if an official representing that institution knew, or . . . should have known, of the harassment's occurrence, unless that official can show that he or she took appropriate steps to halt it.

 Lipsett, 864 F.2d at 898-901, 901; see also Moire, 613 F. Supp. at 1366-70 (analyzing plaintiff's claim of hostile environment sexual harassment using Title VII definitions).

 The exception is the United States District Court for the Western District of Pennsylvania, which, while finding that Title IX "clearly reaches . . . quid pro quo sexual harassment," concluded flatly that "Title IX simply does not permit a 'hostile environment' claim," based on the lack of administrative regulations in the area. *fn3" Bougher v. University of Pittsburgh, 713 F. Supp. 139, 145. The Third Circuit, however, in reviewing the district court's decision, affirmed its result based on a statute of limitations question only, stating "although we affirm the court's ultimate judgment, we decline to adopt its reasoning in toto and we find it unnecessary to reach the question, important though it may be, whether evidence of a hostile environment is sufficient to sustain a claim of sexual discrimination in education in violation of Title IX." Bougher v. University of Pittsburgh, 882 F.2d 72, 77 (3rd Cir. 1989). In light of the Third Circuit's refusal to adopt the reasoning of the district court, the reliance of the BUSD defendants on that opinion is misplaced. *fn4"

 While the Ninth Circuit has yet to establish binding precedent in the area of sexual harassment claims under Title IX, the Supreme Court has provided some guidance in this area that this Court must follow in its decision. The Supreme Court addressed the issue indirectly in its recent ruling that Title IX will support an action for damages. Franklin v. Gwinnett County Pub. Schs., 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992). Christine Franklin was a student at North Gwinnett High School from September 1985 to August 1989. Id. at 1031. In her complaint, Franklin alleged that she was harassed by Andrew Hill, a coach and a teacher at the high school, beginning in the fall of 1986, her sophomore year. Id. She alleged that Hill initiated conversations of a sexual nature with her, forcibly kissed her on the mouth in the school parking lot, telephoned her at home, and on three occasions in her junior year, took her out of classes and subjected her to forcible intercourse in a private office. Id. She further alleged that her complaints to school officials brought her no assistance. Franklin filed a complaint with the OCR, which investigated her charges and found that the school district had violated Title IX by subjecting Franklin to verbal and physical sexual harassment. Id. at 1031-32 n.3. The Court of Appeals for the Eleventh Circuit analyzed Title IX by applying Title VI precedent, declined to apply Title VII analysis, and held that damages were unavailable to Franklin. Franklin v. Gwinnett County Pub. Schs., 911 F.2d 617, 622 (11th Cir. 1990).

 The Supreme Court reversed. It declined to reach the argument that Franklin made in the appellate court that the remedies under Title VII and Title IX should be the same. Gwinnett, 112 S. Ct. at 1032 n.4. *fn5" While it characterized Franklin's complaint as alleging sexual harassment, id. at 1031, neither the Supreme Court nor the appellate court categorized the allegations as either quid pro quo harassment or hostile environment harassment. Based on this footnote and the absence of any outright endorsement of a sexually hostile educational environment claim, the BUSD defendants argued at the hearing that this Court was free to, and should, reject any application of Title VII hostile environment sexual harassment case law to this Title IX claim.

 While not explicitly addressing the relationship between Title VII analysis and Title IX analysis, however, the Supreme Court, like the other courts cited above, turned to Title VII law to explain its ruling on Franklin's harassment claim:

Unquestionably, Title IX placed on the Gwinnett County 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 'discriminates' on the basis of sex." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student.

 112 S. Ct. at 1037. While, like the Supreme Court, this Court need not decide whether the analogy between relief available to Title VII plaintiffs and Title IX plaintiffs is exact in all circumstances, this Court does, like the Supreme Court, look to Meritor to analyze plaintiffs' claims that the continuing presence of a teacher who had sexually molested two students created such a hostile environment in the school district for those girls that the BUSD, like the Gwinnett County School District, may be liable for sex discrimination under Title IX.

 As the Supreme Court acknowledged in Gwinnett, a student should have the same protection in school that an employee has in the workplace. Cf. Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137, 149 (5th Cir. 1992) ("there is no meaningful distinction between the work environment and school environment which would forbid such discrimination in the former context and tolerate it in the latter. Women need not endure sexual harassment by state actors under any circumstances, the school setting included.") (decided under equal protection laws). The distinctions between the school environment and the workplace serve only to emphasize the need for zealous protection against sex discrimination in the schools:

The importance and function of environment is different in academia than in the workplace. . . . A nondiscriminatory environment is essential to maximum intellectual growth and is therefore an integral part of the educational benefits that a student receives. A sexually abusive environment inhibits, if not prevents, the harassed student from developing her full intellectual potential and receiving the most from the academic program.
. . .
[A] higher standard should be imposed upon a faculty member's behavior toward his student than that which is imposed upon an employer with regard to his employee. . . . The student-faculty relationship encompasses a trust and dependency that does not inherently exist between parties involved in a sexual harassment claim under Title VII.

 Ronna Greff Schneider, Sexual Harassment and Higher Education, 65 Tex. L. Rev. 525, 551 (1987). *fn6"

 This Court, therefore, holds that the law permits plaintiffs to state a claim for hostile environment sexual harassment under Title IX. ...

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