Rowinsky v. Bryan Independent School Dist.

Page 1006

80 F.3d 1006

64 USLW 2639, 108 Ed. Law Rep. 502

Debra ROWINSKY, for Herself and as Next Friend of "Jane Doe" and "Janet Doe," Her Minor Children, and for All Those Similarly Situated, Plaintiff-Appellant, v. BRYAN INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 95-20049.

United States Court of Appeals Fifth Circuit.

April 2, 1996.

James C. Harrington, Saul Gonzalez, Maryann Overath, Texas Civil Rights Project, Austin, TX, for plaintiff-appellant.

Jennifer Weston Jacobs, Lisa A. Brown, Bracewell & Patterson, Houston, TX, for defendants-appellees.

Marcia Devins Greenberger, Deborah L. Brake, National Women's Law Center, Washington, DC, Julie Goldscheid, Yolanda Wu, New York City, for amicus curiae, National Women's Law Center, Equal Rights Advocates, Women's Legal Defense Fund and NOW Legal Defense & Educ. Fund.

Shellie Hoffman, Austin, TX, amicus curiae for Texas Ass'n of School Boards, Texas Ass'n of School Administrators & Texas Council of School Attorneys.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, SMITH and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This appeal presents the question of whether title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("title IX"), imposes liability on a school district for peer hostile environment sexual harassment. ¹ We conclude that title IX does not impose such liability, absent allegations that the school district itself directly discriminated based on sex. Accordingly, the judgment of the district court is affirmed.

I.

During the 1992-93 school year, students proceeding in this litigation under the pseudonyms of Jane and Janet Doe were eighth graders at Sam Rayburn Middle School in the Bryan Independent School District ("BISD") who rode a BISD school bus to and from school. Boys and girls were required to sit on different sides of the bus, and the bus driver, Bob Owens, enforced the restriction, even, on occasion, telling Jane and Janet not to sit on the boys' side of the bus.

Beginning in September 1992, a male student, whom we identify only by his initials, "G.S.," physically and verbally abused Janet on the bus. G.S. regularly swatted Janet's bottom whenever she walked down the aisle and made comments such as, "When are you going to let me fuck you?", "What bra size are you wearing?", and "What size panties are you wearing?" He also called Janet a "whore." At one point, G.S. groped Janet's genital area.

Janet complained to Owens no fewer than eight times that G.S. had swatted her and Jane on their bottoms and used foul language. Owens took down names on a pad of paper. Janet eventually stopped reporting the incidents.

On September 24, G.S. grabbed Jane in her genital area, and, a few minutes later, grabbed her breasts. Jane, Janet, and their parents visited Assistant Principal Randy Caperton the next day to complain about the incident. ² Caperton told the Rowinsky family that he had already heard about the sexual assault from another student and that he believed the nature of the assault merited expelling G.S. Caperton suspended G.S. from riding the bus for three days and required him to sit in the second row behind the driver.

On September 29, Mrs. Rowinsky visited Caperton again to discuss the incident, complaining that other girls were being harassed on the bus. Caperton showed her a bus report that documented the incident with Jane. The report, however, contained numerous inaccuracies, including the fact that it did not name G.S. and listed the wrong date and length of punishment. Caperton corrected the assailant's name in a new report.

The three-day suspension did not deter G.S. He violated the seating requirement, and, as a result, Owens restricted Jane and Janet to the front of the bus. Mrs. Rowinsky called Jay Anding, assistant director of the transportation office, and demanded that he restrict G.S. to the second row seat because of the continuing remarks and misbehavior. Anding told Mrs. Rowinsky that he would speak with Owens. In late November 1992, G.S., with Owens nearby, called the girls offensive names and slapped Janet's buttocks. Owens did nothing, and the girls did not file any complaints.

One morning in December 1992, another male student, whose initials are "L.H.," reached up Janet's skirt, made a crude remark about what he almost touched, and then grabbed her genital area. Janet complained to Owens at the next stoplight, but he "just stared into space." On the afternoon of December 16, L.H. reached up Jane's skirt, touching her near her panty line. Jane did not tell Owens about the incident.

On December 18, Mrs. Rowinsky contacted Anding regarding L.H.'s behavior and told Anding that other girls were being sexually assaulted and gave him their names. Anding said he would investigate the alleged problems on the bus and take action.

On January 12, 1993, Mrs. Rowinsky contacted Caperton to find out the results of the investigation. Caperton told her that Anding had not conducted the investigation but that L.H. had been suspended for three days. ³

On January 13, Mrs. Rowinsky contacted Dr. Tom Purifoy, BISD director of secondary education, and described the assaults to him. Purifoy did not conduct an independent investigation but referred her to C.W. Henry, Anding's assistant.

On January 14, after reviewing videotapes from the bus, Henry assigned a new driver to replace Owens. There are no further allegations of harassment by G.S. thereafter.

On January 19, the driver assigned Jane the seat next to G.S. Although G.S. made no new assaults, Mrs. Rowinsky removed her daughters from the bus and, on January 22, requested that Purifoy remove G.S. from the bus. Purifoy refused to take any further action against G.S. without proof of the assaults from juvenile records.

On March 30, during class, a third male student, with the initials "F.F.," reached under Janet's shirt and unfastened her bra. The teacher in the classroom sent both students to Vice-Principal Sandra Petty, who sent Janet back to class and suspended F.F. for the rest of the day and the next day. F.F. is not alleged to have harassed or abused the girls further. The next day, Mrs. Rowinsky visited Petty and complained about F.F.'s behavior; Petty responded that she did not consider F.F.'s conduct to be sexual.

On March 30, Mrs. Rowinsky and her attorney met with Dr. Sarah Ashburn, BISD superintendent, to complain about G.S.'s behavior. Ashburn said the three-day bus suspension was sufficient punishment. She did not inform them about the existence of title IX or any title IX grievance procedures.

On May 4, Mrs. Rowinsky met with Ashburn and complained about her failure to take action against G.S. and L.H. Ashburn considered her actions against G.S. sufficient and informed Mrs. Rowinsky that she did not deem what had happened to Jane and Janet to be assaults. She refused to take further action, in part because L.H. was no longer a student in BISD. Mrs. Rowinsky told Ashburn that she intended to file a grievance with the United States Department of Education Office of Civil Rights ("OCR").

II.

Debra Rowinsky brought this action for herself ⁴ and as next friend, on behalf of her minor daughters, Jane and Janet Doe, and all those similarly situated, ⁵ alleging that BISD and its officials ⁶ condoned and caused hostile environment sexual harassment. ⁷ Specifically, the complaint asserts that Janet was sexually harassed at Sam Rayburn Middle School ("the school") by a student and that Jane and Janet were sexually harassed by other school children while riding the BISD school bus. Rowinsky seeks declaratory and injunctive relief, as well as compensatory damages and attorney's fees under title IX.

The district court held that Rowinsky had failed to state a claim under title IX because there was no evidence that BISD had discriminated against students on the basis of sex; Rowinsky had failed to provide evidence that sexual harassment and misconduct was treated less severely toward girls than toward boys.

The court relied on a number of facts. The first was that boys who assaulted boys were punished in the same fashion as boys who assaulted girls. The court concluded that any disparity in punishments between particular incidents was not made on the basis of sex, because the individual incidents involved different levels of physical conduct. Moreover, misconduct by one of the harassers was never reported by the students. The second factor was that any failure to train employees would harm male and female victims of harassment equally.

III.

Title IX provides that "[n]o 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 educational program or activities receiving Federal financial assistance." 20 U.S.C. § 1681(a) (1993). At issue here is whether a school district may be liable under title IX when one student sexually harasses another. ⁸ At a broader level of generality, we are asked to decide whether the recipient of federal education funds can be found liable for sex discrimination when the perpetrator is a party other than the grant recipient or its agents. ⁹ The linchpin of Rowinsky's theory is the assumption that a grant recipient ¹⁰ need not engage in prohibited conduct to violate title IX. The specific statutory phrase at issue is the prohibition that "[n]o person be subjected to discrimination under any educational program or activities." Rowinsky focuses solely upon that phrase and argues that "under" means "in" and not "by." By making this substitution, she reasons that the statute cannot be limited to acts of discrimination by grant recipients. ¹¹

A.

As with any statute, our starting point in determining the scope of title IX is the statutory language. Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 504, 133 L.Ed.2d 472 (1995); North...