Bd. of Educ. v. Bell, 456 U.S. at 545, 72 L. Ed. 2d at 323 (Powell, J. dissenting), it is the educational institution that must be sued for violations of Title IX.
This conclusion is reinforced by the statutory provision for administrative enforcement, which refers only to actions federal agencies may take against institutions. Pursuant to section 902 of the Act, "the ultimate sanction for noncompliance is termination of federal funds or denial of future grants." North Haven Bd. of Educ., 456 U.S. at 514-15, 72 L. Ed. 2d at 304. While a private right of action for damages exists under Title IX, Cannon, 441 U.S. at 688-89, 60 L. Ed. 2d at 570-71, Franklin, 117 L. Ed. 2d at 224, the fact that administrative enforcement is directed at the institution that receives federal funds suggests that the private right of action is similarly confined to actions against the institution.
In 1986, Congress implicitly validated Cannon's holding that there is a implied cause of action under Title IX by passing what became 42 U.S.C. § 2000d-7, which abrogated Eleventh Amendment immunity for violations of Title IX and provides that remedies are available against a state "to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State." 42 U.S.C. § 2000d-7(a)(2). The 1986 amendment is consistent with the conclusion that there is no private right of action against individuals, since only remedies against "public or private entities" are mentioned.
In Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993), the Ninth Circuit held that individuals may not be held liable for discrimination under Title VII, 42 U.S.C. §§ 2000e-2000e-17, or the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634. While those Acts have different language concerning liability than the language in Title IX, their history and the evils they attack are so intimately related to Title IX's history and the evils it attacks
that it would make little sense to interpret Title IX to permit individual liability absent clear direction from Congress. That clear direction is lacking. The court holds that individuals may not be held personally liable under Title IX. The Title IX claims against Cleclak and Homrighouse are therefore DISMISSED WITH PREJUDICE.
4. Section 1983 Immunity
Defendants argue that they are all immune from liability under section 1983 due to Eleventh Amendment immunity. The court agrees that the school districts are immune from liability under section 1983 and that school district employees sued in their official capacities are also immune. School officials sued in their individual capacities, however, are not immune from liability under section 1983.
California school districts are arms of the state for purposes of Eleventh Amendment immunity and are therefore immune from liability under section 1983. Belanger v. Madera Unified Sch. Dist., 963 F.2d 248 (9th Cir. 1992), cert. denied. 113 S. Ct. 1280, 122 L. Ed. 2d 674 (1993). Similarly, suits for damages against school officials in their official capacities are considered suits against the state for which Eleventh Amendment immunity applies. Hafer v. Melo, 116 L. Ed. 2d 301, 309-10, 112 S. Ct. 358 (1991). Suits for damages against school officials in their individual capacities arising from their official acts, however, are not barred. Id., 116 L. Ed. 2d at 309-313.
The Ninth Circuit has indicated that in determining whether a suit is an individual or official capacity suit, the court may look to the case's caption, statements in the complaint and other papers, and statements made in court. California v. Harvier, 700 F.2d 1217 (9th Cir.), cert. denied, 464 U.S. 820, 78 L. Ed. 2d 92, 104 S. Ct. 82 (1983). The caption in this case provides no hint. The discussion at pages 13-14, lines 27-9, in Plaintiff's memorandum in opposition to defendants' motion suggests that plaintiff is suing Cleclak and Homrighouse in their individual capacities ("Public entities may very well be immune from suit arising under 42 U.S.C. Sec 1983, however, the individual Defendants are not.") The court therefore finds that the section 1983 claims have been brought against Cleclak and Homrighouse in their individual capacities.
In her complaint, however, plaintiff does not allege that Cleclak had any actual knowledge of the harassment or of her complaints until the month before she left the school. There is no respondeat superior liability under section 1983. Monell v. Department of Social Services of New York, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 636, 98 S. Ct. 2018 (1978). The section 1983 claim against Cleclak is therefore DISMISSED WITH LEAVE TO AMEND within thirty (30) days of the date of this order.
The section 1983 claims against the school districts (and the school itself, which is not a suable entity in any event) are DISMISSED WITH PREJUDICE. The motion to dismiss the section 1983 claims against Homrighouse (on the basis of immunity) is DENIED because he has been sued in his individual capacity.
5. Substantive Attack on the Section 1983 Claim
Plaintiff's section 1983 claim appears to be based on a "special relationship" theory. Plaintiff argues that a "special relationship" exists between schools and students because of compulsory attendance laws. Defendants argue that no section 1983 claim has been stated because there is no special relationship between schools and students which would impose a constitutionally required affirmative duty on schools to prevent peer sexual harassment. The court agrees with defendants.
In DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), the Supreme Court held that, absent a special relationship, a state has no constitutional duty to protect the life, liberty, or property of a citizen from deprivations by private actors. In that case, a severely abused child and his mother sued the county and county officials for depriving him of his liberty without due process of law because they failed to intervene to protect the boy from violence by his father, despite the fact that they knew or should have known of the father's potential for violence against the child. The Court held: "As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197, 103 L. Ed. 2d at 259.
The Court rejected the argument that a special relationship was created or assumed by the State because the State knew of the danger and specifically proclaimed its intent to protect the plaintiff. Id. The Court noted that in Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), the Court held that the Eighth Amendment "requires the state to provide adequate medical care to incarcerated prisoners," reasoning that "because the prisoner is unable '"by reason of the deprivation of his liberty [to] care for himself,"' it is '"just"' that the State be required to care for him." DeShaney, 489 U.S. at 198-99, 103 L. Ed. 2d at 260-61 (quoting Estelle, 429 U.S. at 104-04, quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926)) (footnote omitted). The DeShaney Court also noted that in Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), the Court extended Estelle's reasoning under the Due Process Clause to protect mental patients who had been involuntary committed. DeShaney, 489 U.S. at 199, 103 L. Ed. 2d at 261. The Court explained:
The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs--e.g., food, clothing, shelter, medical care, and reasonable safety--it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. [citations]. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf. . . . In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf--through incarceration, institutionalization, or other similar restraint of personal liberty--which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interest against harms inflicted by other means.