B. Analytical Framework of a Qualified Immunity Defense
As a public school official, Guzman is entitled to assert qualified immunity as an affirmative defense. See Wood v. Strickland, 420 U.S. 308, 318, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975). However, qualified immunity applies only insofar as Guzman is being sued in her individual capacity, since qualified immunity is not available to a government official being sued in her official capacity. Brandon v. Holt, 469 U.S. 464, 472-73, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985). Thus, the suit against Guzman in her official capacity is unaffected by this discussion.
The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The qualified immunity test is a two-part inquiry. First, was the law governing the official's conduct clearly established, and second, under that law, could a reasonable official have believed his or her conduct was lawful. Act Up!/ Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993). The plaintiff bears the burden of proving the existence of a "clearly established" right at the time of the allegedly impermissible conduct. Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992). However, it is not necessary that a prior decision rule "the very action in question" unlawful to deny a defendant the protection of qualified immunity. Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); see also Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995). Rather, "the contours of the right must be sufficiently clear so that a reasonable official would know that his conduct violates that right." Browning v. Vernon, 44 F.3d 818, 823 (9th Cir. 1995).
If the plaintiff meets her burden of demonstrating that the law was clearly established at the time of the alleged conduct, then the defendant bears the burden of establishing that her actions were reasonable, even if they violated the plaintiff's rights. Neely, 50 F.3d at 1509; Maraziti, 953 F.2d at 523. The reasonableness of an official's conduct is a question for the court. Neely, 50 F.3d at 1509.
C. Analysis of Qualified Immunity Defense
1. Whether the Law at the Time of Guzman's Alleged Acts and Omissions Was Clearly Established
a. Title IX
Initially, this court addresses a threshold question not briefed by the parties: whether a cause of action under section 1983 will lie against a school official based on that official's alleged deprivation of rights conferred on a plaintiff by Title IX. In Oona R.-S., 890 F. Supp. at 1459-62, a court in this district analyzed the issue in depth and found that such an action was viable.
The Oona court engaged in the two-step inquiry applicable to determining when a statute creates a right enforceable under section 1983. First the court asks whether the statute at issue creates enforceable rights, and second inquires whether Congress has foreclosed private enforcement through section 1983. Id. at 1460 (citing Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 423, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987)). After concluding that Title IX clearly creates an enforceable right identified by the Supreme Court in Cannon v. University of Chicago, 441 U.S. 677, 690, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979), the Oona court next examined whether Congress precluded private enforcement. Id. Looking first at the statute itself, the court found no set of remedial devices in Title IX sufficiently comprehensive to demonstrate Congressional intent to preclude enforcement through section 1983. 890 F. Supp. at 1461. The Oona court found further support for this conclusion in the Franklin decision, in which the Supreme Court reviewed amendments to Title IX and found that "'Congress did not intend to limit the remedies available in a suit brought under Title IX.'" Id. (quoting Franklin, 503 U.S. at 71). Accordingly, the court in Oona stated that because "the statute does not reflect Congress' intent to preclude plaintiffs from enforcing that right by way of section 1983 . . . the Court finds that a section 1983 action may properly be based on alleged violations of Title IX." 890 F. Supp. at 1462.
The conclusion reached in Oona, however, is disputed among district courts. See Mann v. University of Cincinnati, 864 F. Supp. 44, 47-48 (S.D.Ohio 1994) (finding a sufficiently comprehensive enforcement scheme in Title IX to foreclose section 1983 claims brought against a school and its officials in their official capacities); Bougher v. Univ. of Pittsburgh, 713 F. Supp. 139, 146 (W.D.Pa) ("A statute, such as Title IX, which contains its own remedies and is implemented through its own procedural scheme, does not permit bypassing what Congress has written by going directly to Section 1983."), aff'd on other grounds, 882 F.2d 74 (3d Cir. 1989); Mabry v. State Bd. for Community Colleges & Occup. Educ., 597 F. Supp. 1235, 1239 (D.Colo. 1984), aff'd on other grounds, 813 F.2d 311 (10th Cir.), cert. denied, 484 U.S. 849, 98 L. Ed. 2d 104, 108 S. Ct. 148 (1987) (same). Unfortunately each of these cases decided the question summarily, with little or no analysis of Title IX itself.
At the circuit court level, the results have been less than conclusive. In Pfeiffer v. Marion Center Area Sch. Dist., 917 F.2d 779 (3d Cir. 1990), the Third Circuit found plaintiff's section 1983 claims based on a violation of Title IX barred based on the Sea Clammers doctrine, which does not allow a plaintiff to use section 1983 to bypass the comprehensive enforcement scheme of a federal statute. Id. at 789 (citing Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981)). However, the court in Pfeiffer reached its conclusion with a notable paucity of analysis. In Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir. 1996), the Sixth Circuit addressed the question of whether section 1983 remedies were supplanted by Title IX and found that the Sea Clammers doctrine was inapplicable on two grounds. First, the court concluded that the doctrine was not implicated by plaintiff's use of section 1983 "to enforce wholly independent, and totally distinct, substantive due process rights." Id. at 723. Second, the court noted that Title IX was unlike the Education of the Handicapped Act ("EHA") or other such statutes that had been found to preclude a section 1983 action because in contrast to those statutes "Title IX contains no comprehensive enforcement scheme." Id. The Lillard court further read Cannon as finding an implied private cause of action in Title IX due to the lack of enforcement mechanisms in the statute. Id. (citing Cannon, 441 U.S. at 683, 707). Lastly, the Tenth Circuit in Seamons, 84 F.3d 1226, adopted the holding of Lillard with respect to the viability of a section 1983 claim predicated on a constitutional violation. Id. at 1233-34. However, the Seamons court appeared to disagree that section 1983 could be used to enforce Title IX rights directly. Id. at 1234 n.8 ("Of course, the 1983 action could not be predicated on a violation of Title IX itself. Such a duplicative effort would be barred.") The court in Seamons reached this conclusion by comparison to Title VII without explanation. Id.11 Notably, in Petaluma II, 54 F.3d at 1449, the Ninth Circuit was presented with the question of whether an individual defendant could be sued for a Title IX violation using section 1983 and concluded that it could not reach the issue on a review of a denial of qualified immunity. Id. at 1449.
This court agrees with the reasoning in Oona and Lillard. Unlike Title VII and the EHA, which contain detailed provisions for their enforcement, Title IX contains no such provisions. Therefore, the court finds that Title IX does not preclude plaintiff from bringing a section 1983 claim against Guzman in her individual capacity to enforce rights under Title IX. In fact, Guzman does not argue that plaintiff cannot maintain a section 1983 cause of action based on a violation of Title IX. Instead, Guzman asserts that she is entitled to qualified immunity because at the time of the conduct that gave rise to the section 1983 cause of action, it was not clearly established that Guzman had a duty to prevent student-to-student sexual harassment. The court will therefore address Guzman's qualified immunity argument.
In Petaluma II, the Ninth Circuit considered whether it was clearly established, between the fall of 1990 and February 1992 (the relevant time period in that action), that school officials had a duty under Title IX to prevent peer sexual harassment. Noting that the allegedly impermissible conduct occurred prior to the Supreme Court's ruling in Franklin, the court held that as of February 1992, there was no clearly established duty under Title IX obliging school officials to remedy student-to-student sexual harassment. 54 F.3d at 1451-52. However, the court also noted that if the defendant school counselor
engaged in the same conduct today, he might not be entitled to qualified immunity. We would then be required to consider the Supreme Court's recent Franklin decision. It might be that today a Title VII analogy likening [school officials] to an employer and [plaintiff] to an employee might provide an argument to consider in a similar Title IX case.
Id. at 1452.
Guzman's alleged unlawful conduct occurred in January and February 1993, after the Supreme Court issued its ruling in Franklin. To meet her burden of demonstrating that the law at the time of the allegedly unlawful conduct clearly established that Guzman had a duty under Title IX to remedy peer sexual harassment, plaintiff points to Franklin and to the court's discussion in II of the possible effect that Franklin might have on the success of a qualified immunity defense.
As discussed earlier, this court interprets Franklin and its reliance upon Meritor as meaning that courts should look to Title VII case law and agency principles in determining the scope of Title IX rights and liabilities. Franklin was decided in 1992. Thus, by January and February of 1993, the Supreme Court had made it clear that sexual harassment was proscribed. Furthermore, the Court had applied Title VII Meritor standards to Title IX violations; Title VII case law had established that when one co-worker sexually harasses another co-worker because of the co-worker's sex, that co-worker discriminates on the basis of sex; and Title VII agency principles had established that an employer is liable for damages when it knew or should have known that one co-worker was sexually harassing another and it fails to take steps reasonably calculated to end the harassment. Ellison, 924 F.2d at 881-82.
One of the rationales for proscribing sexual harassment and treating it as sex discrimination is because of the deleterious effect it has on the educational environment and the students Title IX seeks to protect. Title IX itself commands the right of students to be free from sex discrimination and Franklin verifies that sexual harassment is sex discrimination within the meaning of Title IX. Moreover, by 1989 the Office of Civil Rights of the Department of Education had found that peer sexual harassment violated a student's rights under Title IX where the school knew or had reason to know of the harassment. Petaluma I, 830 F. Supp. at 1573. The Franklin court had no difficulty concluding that sexual harassment was a violation of Title IX. That all of the elements of a claim under Title IX were not fully developed does not relieve defendant from knowing the contours of the applicable law.
All of these considerations taken together with the state of Title VII and Title IX law in January 1993 counsels that a reasonable official would know that the harassing conduct and the failure to take prompt action to stop or deter it violated the law. Therefore, the court finds that plaintiff has met her burden of demonstrating that at the time of the allegedly impermissible conduct, the law clearly established that Guzman had a duty under Title IX to take steps reasonably calculated to end the peer sexual harassment of which Guzman knew or should have known.
b. Equal Protection
Plaintiff alleges that Guzman's failure to take adequate steps to remedy peer sexual harassment rose to the level of intentional discrimination based on plaintiff's sex, thereby violating the Equal Protection Clause. Guzman has asserted the affirmative defense of qualified immunity. Plaintiff has the burden of showing that at the time of the alleged discrimination against her there was law clearly establishing that such discrimination violated her equal protection rights.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985).
The Equal Protection clause . . . confers a 'federal constitutional right to be free from gender discrimination' at the hands of governmental actors. Davis v. Passman, 442 U.S. 228, 234-35, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979). . . . Well prior to 1988 the protection afforded under the Equal Protection Clause was held to proscribe any purposeful discrimination by state actors, be it in the workplace or elsewhere, directed at an individual solely because of the individual's membership in a protected class.
Lindsey v. Shalmy, 29 F.3d 1382, 1385-86 (9th Cir. 1994) (second emphasis added); see also Bator v. Hawaii, 39 F.3d 1021, 1027 (9th Cir. 1994) ("By the mid-1970s, the Supreme Court had announced that the Equal Protection Clause proscribes purposeful discrimination by state actors, in the workplace and elsewhere, based solely on an individual's membership in a protected class."). Thus, it would seem rather well-established that a state actor, such as Guzman, would violate the Equal Protection Clause by intentionally discriminating on the basis of sex.
The court in Howard v. Bd. of Educ., 893 F. Supp. 808 (N.D. Ill. 1995), a case relied on by plaintiff, appears to reach such a conclusion. In Howard, plaintiff was a teacher who alleged that she was sexually harassed by students. Plaintiff claimed that the principal of the school knew of plaintiff's complaints concerning the sexual harassment but took no action to stop it, thereby intentionally permitting the harassment to continue. Plaintiff argued that the principal was liable under section 1983 because his acts and omissions violated plaintiff's equal protection rights. The principal asserted that he was entitled to qualified immunity because there was no clearly established law that he had a duty to take action in response to sexual harassment perpetrated by students against a teacher. The court rejected the principal's qualified immunity defense, explaining
there can be no doubt that during the time of [the] alleged conduct (August 1991 to May 1993) sexual harassment in the workplace was constitutionally actionable as a denial of equal protection if such harassment was intentional. See Trautvetter [v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990)]. As such, in a typical workplace, [the principal] could not claim qualified immunity if he had an intentional hand in plaintiff's sexual harassment, even if such harassment occurred through plaintiff's fellow employees. . . . The precise question presented here is whether a principal of a public school would be objectively reasonable in believing that his intentionally permitting students to harass a teacher . . . did not violate the constitution. Given the clearly established law surrounding sexual harassment in the workplace, combined with the unique role a principal plays in the administration of a public school, the court considers it to be objectively unreasonable to believe that a principal who intentionally permits students to sexually harass a teacher after the teacher voices complaints does not violate equal protection.