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May 2, 1995

OONA R.-S., a Minor, by KATE S., her Guardian, KATE S., and KEN R., Plaintiffs,
SANTA ROSA CITY SCHOOLS, et al., Defendants.

The opinion of the court was delivered by: THELTON E. HENDERSON

 On November 14, 1994, the Court heard oral argument on motions to dismiss filed in this action by several individual school district employees (collectively "Defendants"), the Santa Rosa City School District, and Drew Ibach ("Ibach"). In an order issued on November 23, 1994, the Court ruled on several of those motions. The Court also ordered the parties to submit supplemental briefing on two issues related to Defendants' and Ibach's motions to dismiss plaintiffs' claims brought under 28 U.S.C. section 1983. All parties timely submitted these supplemental briefs.

 Having reviewed the written and oral arguments submitted by the parties, and good cause appearing, the Court rules on the motions which remain pending before it as follows. Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART, and Ibach's motion to dismiss is DENIED for the reasons explained below.


 Plaintiff Oona R.-S. ("Oona") and her parents bring this suit against the Santa Rosa City School District ("District") and against several employees of the District for events which allegedly took place when Oona was an 11-year-old sixth grade student at J.C. Fremont Elementary School. Broadly, plaintiffs allege two types of culpable conduct on the part of defendants. First, plaintiffs allege that Drew Ibach, a student teacher assigned to the classroom of Patricia McCaffrey, Oona's teacher, sexually assaulted and harassed Oona and other female students on more than one occasion. The complaint further charges that the other defendant officials failed to take adequate steps to prevent Ibach's conduct. Second, plaintiffs allege that the defendant school officials and teachers created a hostile environment for female students, in large part by failing to prevent Oona's male peers from harassing her and other girls in her class.

 1) Ibach's Conduct and Defendants' Responses

 According to the complaint, one day in early October of 1992, Ibach approached Oona in the classroom while she was seated at her desk studying. Ibach sat down in a chair close behind Oona in such a manner that his legs were straddling her body, and spoke with Oona and another student while leaning over Oona's shoulder. When Oona moved her chair forward and away from Ibach, he also moved his chair forward and resumed the same position. Plaintiffs allege that this conduct was part of a pattern and practice on the part of Ibach during September and October of 1992 of staring at, winking at, whispering to, hugging, and otherwise inappropriately touching female students in McCaffrey's class. Plaintiffs further allege that some of this inappropriate conduct occurred in the presence of defendants McCaffrey and Gerald Hill, the school's principal.

 On October 15, 1992, Ibach approached Oona on the playground and fondled Oona's buttocks while whispering "Hi, Oona Noodles" in her ear. "Oona Noodles" was a nickname Ibach had given Oona earlier in the school year. Startled, Oona swung around, hitting Ibach on the arm. Because she was worried about getting into trouble for hitting Ibach, Oona did not report this incident to her teacher McCaffrey. After school, Oona told her mother, plaintiff Kate S., about the incident with Ibach. Kate S. called McCaffrey and told her what Oona had said, and requested that the school immediately remove Ibach from Oona's classroom. While maintaining that she could not believe Ibach could have done what Oona claimed, McCaffrey said that she would speak to Hill, the principal, about the matter the next day.

 On October 16, Oona's father, plaintiff Ken R., met with Hill and requested that Ibach be removed from Oona's classroom. Hill refused on the ground that Oona's account of the incident was "unverified." Hill said that he had discussed Oona's allegations with Ibach and felt that Oona may have misinterpreted Ibach's intentions. Hill agreed, however, that there was no circumstance in which it was appropriate for a teacher to touch a student's buttocks. Ken R. told Hill that he did not want Oona and Ibach to be in the same classroom. Hill asked to discuss the matter further with Ken R. and Kate S. at some time within the next few days.

 On October 18, Hill reiterated that Ibach would not be removed from McCaffrey's class, and suggested that Oona transfer to another sixth grade classroom. Oona's parents did not want to separate Oona from her friends in McCaffrey's class, however, and reluctantly agreed to allow Oona to remain in the classroom with Ibach.

 A few days later, the mother of one of Oona's female classmates found her daughter crying in her bedroom and writing a letter to McCaffrey explaining that Ibach made the girls in the class very uncomfortable. The mother met with McCaffrey, who stated that the girl had been upset by a "lie" which Oona had told and subsequently "admitted" to McCaffrey. Unsatisfied, the mother told McCaffrey that the situation seemed more serious than McCaffrey apparently perceived it to be.

 Some time after this meeting, McCaffrey called in five to seven of Oona's classmates and questioned them, in defendant Hill's presence, about Ibach's behavior and their feelings toward Ibach. Oona was not present at this meeting. Plaintiffs allege that several of the girls reported that Ibach had behaved inappropriately toward them.

 On October 29, Oona told her parents that she thought Ibach had been removed from McCaffrey's classroom. A day later, however, Oona informed her parents that Ibach had been seen back on school grounds during school hours. Ken R. and Kate S. made an effort to find out whether Ibach had been formally removed and, if so, why he had been seen on school grounds. They were unable, however, to obtain this information from the defendants.

 Ken R. and Kate S. directly asked defendant Director of Elementary Education Ron Lundy on November 2 whether Ibach had been removed from his position as a student teacher at the school. Lundy responded that Ibach had been formally removed, and stated that Ibach's return to the school on October 30 had been unauthorized. Lundy said that the plaintiffs had not been informed of Ibach's removal because personnel matters were confidential. When Ken R. asked Lundy who plaintiffs should contact to discuss any other concerns or complaints which might arise with regard to Ibach, Lundy allegedly provided "no information" in response to Ken R.'s question.

 2) Student-to-student harassment

 Throughout the fall and winter of the 1992-1993 school year, McCaffrey allowed the students in her sixth grade class to watch MTV without adult supervision. While watching MTV, some of the boys in the class made loud and vulgar comments of a sexual nature about the women in the music videos shown on the station.

 In late February 1993, Oona told her parents that some boys in her class had repeatedly referred to girls' body parts as "melons" and "beavers." In a class meeting procedure designed to resolve student disputes, Oona had "written up" two of the boys for asking if she "had a beaver at home" and if she had "left her melons at home." The boys yelled out these statements in the vicinity of school employees including McCaffrey. At a meeting at which McCaffrey was present, Oona requested that the boys apologize and pay a fine in "funny money" under the class grievance procedure. The boys were fined $ 10.00 in funny money but not required to apologize.

 On February 24, 1993, Oona's parents reported to McCaffrey and defendant Deputy Superintendent of Schools Larry White that Oona was being called a "ho" (a slang term for "whore") and a "lesbian" by the boys Oona had previously written up for calling her names. Neither McCaffrey or White, the complaint alleges, investigated this claim or took disciplinary action against the boys.

 In early March, Oona told her parents that one of the boys that she had previously written up had struck her in the face and told her, "Get used to it." After this incident, Oona again wrote the boy up in the class log book. Ken R. immediately reported this occurrence to principal Hill, and plaintiffs allege that Lundy "was also informed" of this incident. No investigation of this claim was undertaken, and no disciplinary action was taken against the boy.

 Also in early March, Ken R. and Kate S. received a letter from defendant Lundy indicating that Lundy, McCaffrey, and Hill had previously been unaware of any sexual harassment in Oona's classroom. A two-page pamphlet entitled "Sexual Harassment--Students" was enclosed with the letter. On March 29, Kate S. asked Lundy for information on the school district's sexual harassment grievance procedure. She received no response to that request.

 On March 30 and 31, Kate S. reported to the offices of Lundy and Hill that she objected to MTV being shown in McCaffrey's classroom due to its sexist content. Around April 1, McCaffrey informed the students in her class that they could no longer watch MTV because a parent had complained.

 When report cards were issued on April 4, Oona received a "C-" in writing for the third quarter of the school year. Oona had received an "A-" in writing the previous quarter. Oona's grades for academic effort were also lower than they had been the semester before. Plaintiffs imply that the drop in Oona's grades was the result of retaliation by McCaffrey against Oona and was motivated by the complaints voiced by the plaintiffs.

 On April 5, Kate S. told defendant Hill that a classmate of Oona's did not want to attend a field trip to a water park because boys in her class had called her "jello" (referring to her large breasts) and talked about her "beaver." Hill responded that Oona could transfer to any other elementary school in the district that she wanted to.

 Kate S. filed a tort claim against defendants Santa Rosa City Schools, McCaffrey, Ibach, Hill, and Lundy on April 8. *fn1" On that date, Kate S. also filed a Discrimination Complaint Form with the Office for Civil Rights of the United States Department of Education. On April 9, Kate S. received a letter from defendant Deputy Superintendent Mel Solie accompanied by a seven-page document entitled "Sex Harassment."

 After Kate S. filed these claims, plaintiffs allege that McCaffrey continued to retaliate against Oona. On April 23, McCaffrey refused to allow Oona to stay after school with other students to work on the school newsletter because no teacher would be present, telling Oona that "your mom wouldn't like you to be here unsupervised." A few days later, on April 26, McCaffrey cancelled a play in which Oona was to perform on the night of the 26th at an "Open House" at the school. None of the other events scheduled for the Open House were cancelled.

 When the slapping incident which had occurred in early March came up for discussion on the class meeting log book on May 8, 1993, McCaffrey reprimanded Oona for writing the boy up rather than reporting the incident to McCaffrey immediately. *fn2" McCaffrey also criticized Oona's requested punishment as too lenient, and spoke with the boy privately for approximately 15 minutes. No disciplinary action followed this meeting. The next week, on May 10, Kate S. filed a report with the Santa Rosa Police against Ibach. No defendant had previously done so.

 After the end of the school year, plaintiffs allege that McCaffrey engaged in one last act of retaliation. On July 9, Kate S. contacted the Gateway Reading Council, an organization which had selected Oona to receive a "Young Writers Award" the previous March, to ask why Oona had not yet received her award. Kate S. was informed that the prize, a book containing the stories written by Oona and other award winners, had earlier been sent to Oona's school for delivery to her. When Kate S. asked McCaffrey where the book had gone, McCaffrey said that she believed that she had thrown it away.

 During the summer of 1993, plaintiffs decided to remove Oona from the Santa Rosa school system. Since that time, she has been schooled at home by her mother. On October 20, 1993, defendant District was informed that the Office for Civil Rights had reached a tentative finding that student-to-student harassment had occurred in McCaffrey's class, that this harassment had created a hostile environment for Oona, and that officials at the school knew or should have known of the harassment but failed to take timely, effective action to prevent it from continuing.

 In the instant action, plaintiffs bring suit against the District and the individual defendants under a number of federal and state law theories, including the deprivation of rights secured by the Equal Protection Clause, the Due Process Clause, and Title IX, 20 U.S.C. § 1681. Defendants do not dispute that plaintiffs have properly stated a claim against defendant District for violation of Title IX, 20 U.S.C. § 1681, and its implementing regulations. Defendants move to dismiss plaintiffs' claims brought against the individual defendants under 28 U.S.C. § 1983, however, on the grounds that 1) an action against an individual District employee cannot properly be based on the alleged deprivation of a student's rights under Title IX; and 2) that even if the Court recognizes such a cause of action under section 1983, the conduct alleged by plaintiffs is insufficient to state a claim. The individual defendants also argue that they are entitled to qualified immunity, necessitating the dismissal of plaintiffs' section 1983 claims at this stage.


 Dismissal is appropriate under Rule 12(b)(6) when plaintiff's complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Dismissal may be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). The Court must accept as true the factual allegations of the complaint and indulge all reasonable inferences to be drawn from them, construing the complaint in the light most favorable to the plaintiff. Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir. 1968); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The Court must construe the complaint liberally, and dismissal should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in ...

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