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April 14, 1997

NICOLE M., a minor, by and through her guardian ad litem, Jacqueline M., Plaintiff,
MARTINEZ UNIFIED SCHOOL DISTRICT, PATRICIA S. CROCKER, in her official capacity as Superintendent of Martinez Unified School District, and DARLENE GUZMAN, individually and in her official capacity as Principal of Martinez Junior High School, Defendants.

The opinion of the court was delivered by: PATEL

 Plaintiff Nicole M., by and through her guardian ad litem, Jacqueline M., filed this action on December 22, 1993. On September 13, 1995, plaintiff filed her first amended complaint, alleging that (1) defendant Martinez Unified School District ("MUSD") intentionally discriminated against plaintiff in education on the basis of plaintiff's sex in violation of 20 U.S.C. section 1681 ("Title IX"); (2) defendant Darlene Guzman intentionally deprived plaintiff of her civil rights on the basis of plaintiff's sex in violation of 42 U.S.C. section 1983; (3) defendants MUSD, Guzman, and Patricia Crocker denied plaintiff her civil rights, particularly her right to be free from discrimination based on sex in a business establishment, in violation of California Civil Code sections 51, 51.5, and 52(a); (4) MUSD and Crocker negligently retained, trained, supervised, and disciplined Guzman and other personnel; (5) MUSD, Guzman, and Crocker negligently inflicted emotional distress on plaintiff; and (6) MUSD and Crocker violated California Education Code sections 200, 212.5, 212.6, 220, and 230, which prohibit sexual harassment in educational institutions.

 Now before the court is defendants' motion to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Having considered the parties' arguments and submissions, and for the reasons set forth below, the court grants the defendants' motion in part and denies the defendants' motion in part.


 Plaintiff attended Martinez Junior High School ("MJHS"), part of the MUSD, from approximately September 1991 to February 1993. MUSD receives federal financial assistance for its public education programs. Crocker is, and at all times relevant herein, was employed as the Superintendent of MUSD. Guzman was at all times relevant herein employed as the Principal of MJHS.

 Plaintiff alleges that beginning in 1991 and continuing through the beginning of 1993, when she transferred out of MJHS, male students at the school repeatedly sexually harassed her. The harassment consisted of unwanted verbal comments regarding plaintiff's breasts and figure in general, and on one occasion involved a male student touching plaintiff's breast during class.

 On January 4, 1993, plaintiff's mother, Jacqueline M., told Guzman that Nicole M. was being sexually harassed at school. On January 11, 1993, Jacqueline M. gave Guzman the names of the boys who had harassed Nicole M., as well as the names of other female students who witnessed the harassment. Sometime later, Guzman also learned that Nicole M. had been sexually assaulted in one of her classes. Guzman suspended for one day the boy who had sexually assaulted Nicole M.

 Guzman took some additional action in response to the reported sexual harassment, but plaintiff alleges that these measures were inadequate and, at times, counterproductive. For example, sometime in January 1993, Guzman spoke with a group of girls, including Nicole M., so that the girls could tell her about any harassment and identify the harassers. However, although Guzman said that she would keep this meeting confidential, she later broke that promise and others at MJHS, including the harassers, discovered that Nicole M. had reported the harassment.

 In late January 1993, Guzman moved Nicole M. into new classes so that she could avoid the worst harassers. Subsequently, the worst harasser was placed into one of Nicole M.'s new classes. Nicole M.'s complaints about this arrangement were unavailing. On February 3, 1993, Jacqueline M. informed Guzman that at least one boy continued to sexually harass Nicole M. On February 4, 1993, Jacqueline M. told Crocker about the sexual harassment that was occurring.

 Because she no longer felt safe at MJHS, Nicole M. transferred from MJHS to a school in another district on February 17, 1993. On December 22, 1993, plaintiff filed this action.


 A motion to dismiss will be denied unless it appears that the plaintiff can prove no set of facts that would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Fidelity Fin. Corp. v. Federal Home Loan Bank, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 998, 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).


 I. Title IX Claim Against MUSD

 At the time of filing their papers both plaintiff and defendants acknowledged that there was recent case law from this District holding that under Title IX a plaintiff may state a student-to-student hostile environment sexual harassment claim for damages against a school district if, and only if, the plaintiff alleges that the school district intentionally discriminated against the plaintiff because of the plaintiff's sex. See Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560 (N.D.Cal. 1993) ("Petaluma I "). Both parties urged this court, for different reasons, not to adopt the Petaluma-I holding. However, since that time the decision in Petaluma I has been reconsidered and its holding revised. Doe v. Petaluma City Sch. Dist., 949 F. Supp. 1415 (N.D.Cal. 1996) ("Petaluma III "). *fn2" The court will take up the arguments of the parties in light of Petaluma I and Petaluma III.

 Nicole M. encourages the court to hold that plaintiffs need not plead or prove that a school district intentionally discriminated on the basis of sex in order to recover damages against the school district for a Title IX student-to-student hostile environment sexual harassment claim. Nicole M. contends that instead, a plaintiff should be able to recover money damages against a school district if the school district knew or should have known of the student-to-student sexual harassment and failed to take reasonable steps to stop it.

 In contrast, defendants suggest that school districts should never be liable for failing to intervene when one student sexually harasses another. Defendants reason that it is difficult for school personnel to detect when adolescent behavior rises to the level of sexual harassment. Additionally, defendants maintain that it is not appropriate public policy to mandate that school districts be insurers of adolescent behavior and that a finding of school district liability will unleash a flood of lawsuits.

 Neither the Supreme Court nor the Ninth Circuit has directly discussed the existence or nature of a cause of action against school districts under Title IX for student-to-student sexual harassment. In Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992), the Supreme Court held that a plaintiff could recover damages under Title IX against a school district for teacher-to-student sexual harassment. Id. at 74-75. In Franklin, the plaintiff alleged that a teacher had sexually harassed her and that the district knew of the harassment but took no steps to stop it. Id. at 63-64. The plaintiff sought to recover money damages from the school district. Id. Defendant argued that Congress enacted Title IX under its Spending Clause powers, and as a result, plaintiff could recover no money damages even if she could establish that the defendant school district intentionally discriminated against her. The Court addressed the nature of remedies available under Spending Clause legislation, *fn3" citing to a portion of Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981), in which the Pennhurst Court explained that

unlike legislation enacted under § 5 [of the 14th Amendment] . . . legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.' There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it.

 Pennhurst, 451 U.S. at 17 (citations omitted).

 The Franklin Court applied this reasoning to defendant's position that plaintiff could not recover damages against a school district even when the school district "intentionally" discriminates and concluded that defendant's contention was erroneous. The Franklin Court interpreted Pennhurst as prohibiting damage awards under Spending Clause legislation only when the alleged violation was "unintentional." Franklin, 503 U.S. at 74-75. Relying on Pennhurst's interpretation of the contractual nature of Spending Clause legislation, the Franklin Court explained that the "point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award." Id. at 74. The Franklin Court further reasoned that "this notice problem does not arise in a case such as this, in which intentional discrimination is alleged." Id.

 Looking to Franklin for guidance, the Petaluma I court addressed the question of whether student-to-student sexual harassment is actionable under Title IX. The Petaluma I court decided that student-to-student hostile environment sexual harassment claims may be brought against school districts under Title IX; however, the court ruled that to obtain damages, as opposed to declaratory or injunctive relief, "the plaintiff must prove intentional discrimination on the part of an employee of the educational institution, not just that an employee or employees of the institution knew or should have known of the hostile environment and failed to take appropriate action to end it." Petaluma I, 830 F. Supp. at 1562; accord Oona R.-S. v. Santa Rosa City Sch., 890 F. Supp. 1452, 1466 (N.D.Cal. 1995) ("The Court finds that the reasoning of Franklin and Petaluma I persuasively establishes that intentional discrimination is an element of a Title IX claim against an institutional defendant.").

 Subsequently, the court reconsidered the decision in Petaluma I, which held that the "knew or should have known" standard does not constitute intentional discrimination for the purposes of Title IX, and issued its new decision in Petaluma III. In Petaluma III the court returned to Franklin for guidance and ultimately reached a different conclusion. However, since Franklin did not deal with student-to-student harassment or employee-to-employee harassment the Supreme Court did not reach the issues of liability and the applicable standard in such cases. Neither were these issues addressed in Guardians Ass'n v. Civil Serv. Comm'n., 463 U.S. 582, 77 L. Ed. 2d 866, 103 S. Ct. 3221 (1983), a case discussed at length in Franklin. Thus, this court, like the court in Petaluma III, must extrapolate from Franklin.

 Guardians involved interpretation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. ("Title VI"). Title VI, like Title IX, is a Spending Clause statute. The two statutes were compared in Guardians and again in Franklin. In Guardians a splintered court took up the issues of whether there was a private cause of action under Title VI, the relief available, and whether a showing of intentional discrimination was required in order to obtain relief. However, the question of intentional discrimination arose in the discussion of disparate impact and disparate treatment theories, the former not requiring a showing of intent and the latter requiring intent. Piecing together the Guardians opinion and its concurrences, it is clear that a "majority of the Court agreed that retroactive relief is available to private plaintiffs for all discrimination, whether intentional or unintentional, that is actionable under Title VI." Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 n.9, 104 S. Ct. 1248, 79 L. Ed. 2d 568 (1984) (discussing Guardians in the context of the anti-discrimination provisions of other federally-funded programs). *fn4" Darrone also held, relying on a different Guardians plurality, that a private plaintiff may recover back pay under Title VI where there is intentional discrimination. Id. at 630.

 Franklin used the decision in Guardians to analyze liability and remedies under Title IX since both Title IX and Title VI are anti-discrimination laws adopted under Congress' Spending Clause powers. Franklin, however, did not involve issues of disparate impact but of sexual harassment. Indeed, it is difficult to see how most cases of sexual or racial harassment would be amenable to disparate impact analysis. Harassment claims do not challenge facially neutral standards that have a disparate impact on members of a protected class; they address intentional conduct. Thus, the Franklin Court turned to Title VII law to determine what standard should apply to Title IX sexual harassment claims. *fn5" The Court held:

Unquestionably, Title IX placed on the [defendant school system] 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[s]" on the basis of sex.' Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). We believe the same rule should apply when a teacher sexually harasses a student."

 Franklin, 503 U.S. at 75. This court finds Franklin's citation to Meritor significant.

 In Meritor, the Court analyzed a Title VII claim by an employee who alleged that a supervisor had sexually harassed her. The Court held that "a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." Meritor, 477 U.S. at 66. The Court also explained that "when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex." Id. at 64. In Franklin, the Court extended the rule to sexual harassment of a student by a teacher. 503 U.S. at 75.

 Courts have also applied Meritor's reasoning to hold that when one co-worker sexually harasses another co-worker because of the co-worker's sex, the harassing co-worker discriminates on the basis of sex. See, e.g., Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). Analogizing the Court's reasoning in Franklin -- that the rule regarding supervisor-to-subordinate discrimination should apply equally to teacher-to-student harassment -- this court finds in the instant action that the same rule should apply to student-to-student sexual harassment as applies to employee-to-employee sexually harassment; that is, when one student sexually harasses another student because of the student's sex, that student discriminates on the basis of sex. Defendants appear not to dispute such a conclusion; rather, they argue that even if students sexually harassed Nicole M. and this harassment constituted sex discrimination, Nicole M. may not recover damages against MUSD for such discrimination. Under a fair reading of Franklin, however, this position is untenable.

 The Franklin Court ruled that a plaintiff may recover damages against a school district when teacher-to-student sexual harassment occurs. Unfortunately, the Franklin Court did not explicitly state the theory under which a school district could be held liable for a teacher's actions. However, it is implicit in Franklin's reference to Meritor, that the Court relied on the agency principles developed in Meritor to determine a school district's liability for damages and to find that a teacher is an agent of the district. Meritor concluded that employers are not "always automatically liable for sexual harassment by their supervisors". 503 U.S. at 72. Nor does absence of notice to the employer "necessarily insulate that employer from liability." Id. The Meritor Court said that it is necessary to look to agency principles such as those developed under Title VII and common law, to the extent that it is not inconsistent with Title VII. This requires looking at the job functions of the supervisor or agent and the circumstances of the particular employment relationship. Id. at 71-72. Title VII case law also holds that an employer is liable for damages when it knew or should have known that one co-worker was sexually harassing another and the employer fails to take steps reasonably calculated to end the harassment. See Ellison, 924 F.2d at 881-82.

 Few circuits have addressed the standards to be used in determining whether a school is liable for peer harassment and the remedies that may be provided. The Ninth Circuit has not yet spoken on these issues. In Davis v. Monroe County Bd. of Educ., 74 F.3d 1186, 1193 (11th Cir.), vacated, pending reh'g en banc, 91 F.3d 1418 (11th Cir. 1996), the Eleventh Circuit, following Title VII case law, held that Title IX encompasses a claim for damages due to a sexually hostile education environment created by a fellow student or students when the supervising authorities knowingly fail to act to eliminate the harassment. The Davis court set forth five elements which a plaintiff must show in order to establish a claim for student-to-student sexual harassment: "(1) that she is a member of a protected group; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of her education and create an abusive educational environment; and (5) that some basis for institutional liability has been established." Id. at 1194 (citing Meritor and Harris v. Forklift Sys. Inc., 510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993)). The last element, Davis held, can be satisfied by showing that the district officials, such as teachers or principals, knew or should have known of the harassment and failed to take "prompt and remedial action to end the harassment". 74 F.3d at 1195. In Davis the student alleged that she had told the principal about the offending conduct and that several teachers also had knowledge of the conduct, yet the school failed to take prompt action to stop the harassment.

 Although Davis has been vacated pending rehearing, its standard has been adopted and employed by other circuit and district courts in cases of both peer and teacher-to-student sexual harassment. The Tenth Circuit in Seamons v. Snow, 84 F.3d 1226, 1232-33 (10th Cir. 1996), cited to Davis and approved much of its analysis in a case of peer harassment, but failed to reach the fourth and fifth elements because it found that the harassment was not based on sex. The Seamons court declined to decide "what liability, if any, the school district might have for the acts of its students." Id. at 1232 n.7. In cases of teacher-to-student harassment, both the Sixth and Eighth Circuits have followed Davis and applied Title VII standards of liability. Doe v. Claiborne County, 103 F.3d 495, 513, 515 (6th Cir. 1996) (holding that Title VII agency principles apply to discrimination claims brought under Title IX); Kinman v. Omaha Public Sch. Dist., 94 F.3d 463, 467-69 (8th Cir. 1996) (applying the Davis test and the "known or should have known" standard); see also Does v. Convington County Sch. Bd. of Educ., 930 F. Supp. 554, 567-68 (M.D.Ala. 1996)(applying the Davis standard to facts involving abuse of a student by a teacher). But see Bolon v. Rolla Public Sch., 917 F. Supp. 1423 (E.D.Mo. 1996) (rejecting the "known or should have known" standard in a case of teacher harassment of a student).

 In contrast, the Fifth Circuit has held that Title IX does not impose liability on school districts for peer hostile environment sexual harassment "absent allegations that the school district itself directly discriminated based on sex." Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1008 (5th Cir.), cert. denied, 136 L. Ed. 2d 108, 117 S. Ct. 165 (1996). However, since Rowinsky the Fifth Circuit has had an opportunity to decide what liability standard should apply to teacher-to-student sexual harassment claims brought under Title IX. Canutillo Ind. Sch. Dist. v. Leija, 101 F.3d 393 (5th Cir. 1966), reh'g denied, 106 F.3d 399 (1997). Although the court in Leija rejected a strict liability standard, id. at 399, it declined to decide -- in spite of its earlier decision in Rowinsky -- whether Title VII or the Restatement Second of Agency provided the appropriate standard for school district liability. The Fifth Circuit has since decided the issue more conclusively, holding in a case of teacher-to-student sexual harassment, that in order to hold a school district liable under Title IX for a hostile educational environment, "a plaintiff must show that an employee who has been invested by the school board with supervisory powers over the offending employee actually knew of the abuse, had the power to end the abuse, and failed to do so." Rosa H. v. San Elizario Ind. Sch. Dist., 106 F.3d 648, 650 (5th Cir. 1997) (emphasis added).

 District courts that have taken up these issues generally rely on the Davis factors. The differences in interpretation tend to center on the fifth element and what is necessary to establish a basis for institutional liability. Thus, in one case the court held that it was appropriate to consider direct and indirect evidence and found that intent may be inferred from "the totality of relevant evidence, including evidence of the school's failure to prevent or stop the sexual harassment despite actual knowledge of the sexually harassing behavior of students over whom the school exercised some degree of control". Burrow v. Postville Community Sch. Dist., 929 F. Supp. 1193, 1205 (N.D.Iowa 1996). In Bosley v. Kearney R-1 Sch. Dist., 904 F. Supp. 1006, 1020-21 (W.D.Mo. 1995), the court concluded that intent could be found from "cumulative evidence of action and inaction which objectively manifests discriminatory intent." In Oona R.-S., 890 F. Supp. at 1469, the court found that the requisite intent could be found in "the toleration of harassing behavior of male students, or the failure to take adequate steps to deter or punish peer harassment." *fn6" Yet another court has held recently that Title VII provides a model for defining the substantive standards under Title IX. Collier v. William Penn Sch. Dist., 956 F. Supp. 1209, 1997 U.S. Dist. LEXIS 2054, 1997 WL 89120, *4 (E.D.Pa. Feb. 28, 1997) (noting only that district courts to adopt this approach "have employed slightly different tests of liability").

 Other districts have held the plaintiff to a stricter showing, finding that liability does not attach unless there is actual notice. See Bruneau v. South Kortright Central Sch. Dist., 935 F. Supp. 162, 169-74, 176 (N.D.N.Y. 1996) (rejecting constructive notice as insufficient); Wright v. Mason City Community Sch. Dist., 940 F. Supp. 1412, 1420 (N.D.Iowa 1996) (finding negligence insufficient; school must know of harassment and intentionally fail to act).

 In this District Judge Wilken has held in Petaluma III that the "knew or should have known" standard applies. 949 F. Supp. at 1426. It is also important to note that it has long been the rule in this Circuit that Title VII hostile environment liability can be established by showing that management-level employees knew, or in the exercise of reasonable care should have known, of the conduct creating the hostile environment and failed to remedy or prevent it. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir. 1989); Ellison, 924 F.2d at 881. *fn7"

 This court finds after a review of the relevant case law that the approach taken in Davis, its progeny and Petaluma III is the better reasoned one. It is more consistent with the purposes of Title IX and the well-developed body of law under Title VII which the Franklin court implicitly found to be applicable. Therefore, this court holds that in light of Franklin a plaintiff may maintain a Title IX action for damages against a school district when the plaintiff alleges that the school district knew or should have known in the exercise of its duties that the plaintiff was being sexually harassed by other students and the school district failed to take steps reasonably calculated to end the harassment.

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