United States Court of Appeals Ninth Circuit

Transcription

1 No IN THE United States Court of Appeals Ninth Circuit Susanne Quiller, by and through her guardian ad litem Monique Quiller, Plaintiff-Appellee, v. Delacosta Unified School District; Sharon Sullenberg, in her official capacity as Superintendent of Delacosta Unified School District; Hiram Prentice, in his official capacity as principal of Delacosta Magnet School; and Thomas Vickers, in his official capacity as vice-principal of Delacosta Magnet School, Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA PLAINTIFF-APPELLEE S BRIEF ON THE MERITS TEAM 18 Counsel of Record

2 Q U EST I O NS PR ESE N T E D 1. Whether Plaintiff-Appellee is barred from asserting her Title IX, 1983, and state law claims on procedural grounds when the Supreme Court has found a private right of action under Title IX for student-on-student sexual harassment against a school district, when the Supreme Court permits concurrent 1983 claims with Title IX claims, and when the school district and its officials are not state agents for the purposes of state sovereign immunity for the state law claim? 2. Have Defendants-Appellants proven that summary judgment should be granted when there are genuine issues of material fact concerning whether Defendants-Appellants violated Title IX, the Equal Protection Clause, and the California Unruh Civil Rights Act by unreasonably responding to pervasive student-on-student sexual harassment with an ineffective remedial approach that was tainted with considerations of the sex of both the victim and her harassers? i

3 T A B L E O F C O N T E N TS QUESTIONS PRESENTED i TABLE OF AUTHORITIES..iv OPINION BELOW...viii STATEMENT OF JURISDICTION....viii CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED..viii STATEMENT OF CASE SUMMARY OF THE ARGUMENT..4 ARGUMENT Page I. PETITIONERS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON PROCEDURAL GROUNDS BECAUSE THE SUPREME COURT HAS FOUND STUDENT-ON-STUDENT SEXUAL HARASSMENT ACTIONABLE UNDER TITLE IX, THE SUPREME COURT PERMITS 1983 CLAIMS TO BE ASSERTED WITH TITLE IX CLAIMS, AND THE STATE LAW CLAIM IS NOT BARRED BECAUSE PETITIONERS DO NOT ENJOY STATE SOVEREIGN IMMUNITY... 6 A. Because The Supreme Court Has Found That Student-on-Student Sexual Harassment Is Actionable against A School District under Title IX, The District Court Properly Denied Petitioners Motion For Summary Judgment on Procedural Grounds. 7 B. Respondent s Claims under 42 U.S.C Are Not Barred Because The Supreme Court in Fitzgerald Made Clear That Plaintiffs Can Seek Remedies Against School Districts And School Officials Pursuant to 1983 in Addition to Title IX Claims C. In Light of The Supreme Court s Rationale in Fitzgerald, Respondent s State Law Claim Is Not Barred...11 II. PETITIONERS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE MERITS BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER PETITIONERS VIOLATED TITLE IX, THE EQUAL PROTECTION CLAUSE, AND THE UNRUH CIVIL RIGHTS ACT BY FAILING TO PROPERLY RESPOND TO SEXUAL HARASSMENT INFLICTED ON RESPONDENT BY HER FELLOW STUDENTS ii

4 A. Respondent Can Defeat Summary Judgment on The Title IX Claim for Monetary And Injunctive Relief Because DUSD Had Actual Knowledge of The Severe Harassment, DUSD Responded with Deliberate Indifference, And DUSD Had Substantial Control over Both The Areas Where The Harassment Occurred And The Harassers Respondent repeatedly suffered severe and pervasive sexual harassment DUSD and its officials had actual knowledge of the sexual harassment that Respondent experienced while she was a student at DMS DUSD showed deliberate indifference to Respondent s repeated sexual harassment complaints by responding with ineffective measures and disregarding DUSD s own sexual harassment policy DUSD exercised substantial control over both the areas where the harassment occurred and the students that committed the harassment Because in addition to monetary damages, Respondent can seek injunctive relief on the merits, Respondent requests that the Court require DUSD to abide by its own sexual harassment policy and procedures..21 B. Respondent Can Defeat Summary Judgment on Her 1983 Claims Because DUSD Officials Violated Her Rights under Both Title IX and The Equal Protection Clause C. Respondent Can Defeat Summary Judgment on The Unruh Civil Rights Act Claim Because The School District Is A Business Establishment, And Its Failure to Remedy The Student-on-Student Sexual Harassment Deprived Respondent of Her Access to The Privileges of A Public Education on The Basis of Her Sex CONCLUSION.. 25 iii

5 T A B L E O F A U T H O RI T I ES Page United States Supreme Court Cases: Ariz. v. Cal., 530 U.S. 392 (2000). 13 Cannon v. U. of Chi., 441 U.S. 667 (1979). 6, 7 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)..14 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).....viii Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629 (1999)...passim Ex Parte Young, 209 U.S. 123 (1908)...11 Fitzgerald v. Barnstable Sch. Comm.,129 S. Ct. 788 (2009).. passim Franklin v. Gwinnett Co. Pub. Sch., 503 U.S. 60 (1992)...6, 7 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)...17, 18 Ky. v. Graham, 473 U.S. 159 (1985).11 Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978) , 22 N.J. v. T.L.O., 469 U.S. 325 (1985)...21 Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)...7, 12 P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993)... viii Raygor v. Regents of the U. of Minn., 534 U.S. 533 (2002).7, 12 U.S. v. Va., 518 U.S. 515 (1996) , 24 Will v. Mich. Dept. of St. Police, 491 U.S. 58 (1989)...11 Wis. Dept. of Corrections v. Schacht, 524 U.S. 381 (1998)..12 Court of Appeals Cases: Belanger v. Madera Unified Sch. Dist., 963 F.2d 248 (9th Cir. 1992)...passim iv

6 Bohen v. City of East Chi., 799 F.2d 1180 (7th Cir. 1986)...24 Brown v. Cal. Dept. of Corrections, 554 F.3d 747 (9th Cir. 2009)...11 Chaloux v. Kileen, 886 F.2d 247 (9th Cir. 1989)..22 Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994)...19 Douglas v. Cal. Dept. of Youth Auth., 271 F.3d 812 (9th Cir. 2001)...13 Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003)...14, 23 Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754 (9th Cir. 1999)..passim ITSI TV Prods., Inc. v. Agric. Assns., 3 F.3d 1289 (9th Cir. 1993) L.A. Police Protective League v. Gates, 995 F.2d 1469 (9th Cir. 1993)...22 Lytle v. Carl, 382 F.3d 978 (9th Cir. 2004)...22 M.A. v. St. Operated Sch. Dist., 344 F.3d 335 (3d Cir. 2003)..11 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996)...23 Oona v. McCaffrey, 143 F.3d 473 (9th Cir. 1998) 23 Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000).....passim Stanley v. Trustees of the Cal. St. U., 433 F.3d 1129 (9th Cir. 2006)...12 Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996)...22 Williams v. Bd. of Regents of the U. Sys. of Ga., 477 F.3d 1283 (11th Cir. 2007)..10 District Court Cases: Annamaria M. v. Napa Valley Unified Sch. Dist., 2006 U.S. Dist. LEXIS (N.D. Cal. May 30, 2006)...passim Brodeur v. Clermont Sch. Dist., 626 F. Supp. 2d 195 (D.N.H. 2009)...18 Cartwright v. Regents of U. of Cal., 2009 U.S. Dist. LEXIS (E.D. Cal. July 22, 2009)....passim Doe v. Petaluma City Sch. Dist., 830 F. Supp (N.D. Cal. 1993)...14 v

7 Jane Doe A v. Green, 298 F. Supp. 2d 1025 (D. Nev. 2004) 18 Michelle M. v. Dunsmuir Joint Unified Sch. Dist., 2006 U.S. Dist. LEXIS (E.D. Cal. Oct. 12, 2006) , 25 Nicole M. v. Martinez Unified Sch. Dist., 964 F. Supp (N.D. Cal. 1997)...passim Oona v. Santa Rosa City Schs., 890 F. Supp (N.D. Cal. 1995)...14 Roe v. Gustine Unified Sch. Dist., 2009 U.S. Dist. LEXIS (E.D. Cal. Dec. 22, 2009)...passim Schroeder v. San Diego Unified Sch. Dist., 2009 U.S. Dist. LEXIS (S.D. Cal. May 13, 2009) Thompson v. U. of S.C., 2006 U.S. Dist. LEXIS (D.S.C. June 30, 2006).13 State Court Cases: Harris v. Capital Growth Investors, 805 P.2d 873 (Cal. 1989) 24, 25 Isbister v. Boys Club of Santa Cruz, 707 P.2d 212 (Cal. 1985)...24 United States Constitutional Provisions: Equal Protection Clause, U.S. Const. amend. XIV, 1.. passim Federal Law: Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a) (2006)...passim 28 U.S.C (2006)... viii 28 U.S.C (2006)... viii 28 U.S.C (2006)... viii 42 U.S.C (2006).passim State Law: Unruh Civil Rights Act, Cal. Civ. Code (Lexis current through 2009 Extraordinary Sess.)... passim Cal. Penal Code (Lexis current through 2009 Extraordinary Sess.).20 vi

8 Rules of Civil Procedure Fed. R. Civ. P , 14 vii

9 OPINI O N B E L O W The opinion of the United States District Court, Central District of California, is unreported. Its judgment and opinion are provided in the Record. R ST A T E M E N T O F JURISDI C T I O N The District Court for the Central District of California had jurisdiction to hear the federal claims under 28 U.S.C (2006) and the state claims under 28 U.S.C (2006). Petitioners appealed the decision of the District Court for the Central District of California. While 28 U.S.C (2006) permits appeals from final decisions of the district courts, the collateral order doctrine permits appeals to be taken from orders that are not complete or final but that are collateral to the rights asserted in the action and too important to be denied immediate review. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The Supreme Court has held that states and state entities can appeal a district court s denial of Eleventh Amendment immunity under the collateral order doctrine, and therefore, this Court has jurisdiction to hear this appeal. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). C O NST I T U T I O N A L A ND ST A T U T O R Y PR O V ISI O NS IN V O L V E D The constitutional and statutory provisions involved in this litigation include the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, 1; Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a) (2006); 42 U.S.C (2006); and the Unruh Civil Rights Act, Cal. Civ. Code (Lexis current through 2009 Extraordinary Sess.). viii

10 ST A T E M E N T O F T H E C ASE Delacosta Magnet School ( DMS ) is a school within the Delacosta Unified School District ( DUSD ). R. 2. DUSD receives federal educational funding. R. 2. Susanne Quiller ( Susanne or Respondent ) is currently a senior at DMS. R. 2. Susanne rides the bus to school because DMS does not allow students to drive to school until their last semester. R. 3. During August 2008, two fellow students, Harrison Stuart and Andrew Boyd ( the boys ), began harassing Susanne on the bus. R. 3. The boys touched Susanne s buttocks and asked sexual questions such as, What bra size are you wearing? ; What color are your panties? ; and When are you going to let me have my way with you? R. 3. They asked Susanne if she gave good blow jobs and used words like fuck, cock, and cunt. R. 3. Susanne complained to the bus driver who relayed the complaint to the school administration, but administrators took no action. R. 3. On April 1, 2009, the boys forcibly restrained Susanne at DMS and grabbed her breasts and genital area. R Susanne s mother contacted Vice- Principal Thomas Vickers ( Vickers ), who was in charge of discipline at DMS, about the incident. R. 4, 6. Vickers did not inform Susanne or her mother of Title IX grievance procedures or DUSD s sexual harassment policy. R. 4. The policy permits school officials to informally resolve complaints; however, if such efforts are ineffective, school officials must inform the Title IX Coordinator, who appoints an investigator. R. 12. If the investigator finds that harassment probably occurred, a review committee holds a hearing and determines sanctions. R. 14. Vickers informed DMS Principal Hiram Prentice ( Prentice ) of the complaint, but they dismissed it as boys-will-be-boys behavior. R. 4. Vickers then conducted his own investigation. R. 4. After talking with Susanne and the boys, Vickers concluded that something 1

11 inappropriate had occurred but felt that Susanne was overly sensitive. R. 4. Vickers also received anonymous s corroborating Susanne s version of the incident. R. 4. Nevertheless, Vickers chose to only verbally warn the boys and threaten them with suspension while also ordering them to sit directly behind the bus driver. R Vickers verbal warning did not stop the boys sexual harassment of Susanne, and the boys ignored Vickers order about sitting on the bus. R. 5. The boys felt they would not be disciplined because Andrew s father was on the school board. R. 5. Susanne s mother again contacted Vickers about the continuing harassment. R. 5. He promised he would speak with the bus driver, but there is no evidence that such a conversation ever took place. R. 5. In May 2009, Vickers learned of the existence of an offensive MySpace page for Suzi Q. R. 5. The page described Suzi Q. in a sexual manner. R. 5. After reading the physical description, Vickers concluded the page was likely aimed at Susanne. R. 5. He informed Prentice about the page, but neither of them either investigated or took any further action. R. 5. On the last day of school, the boys handed Susanne a note which stated, We ll miss you but we know where you are and we ll be watching you 2H2H! R. 5. 2H2H apparently meant too hot to handle. R. 3. Susanne chose not to inform school officials of this incident. R. 5. During the next school year, in August 2009, although Susanne no longer rode the bus, the boys continued to make lewd comments and gestures. R. 6. Her mother contacted Vickers and requested that the boys be expelled. R. 6. Vickers only warned the boys that they could be suspended or expelled. R. 6. Vickers told Prentice about the harassment; however, Prentice declined to get involved. R. 6. Both Prentice and Vickers were reluctant to expel the boys because they wanted to maintain gender diversity at DMS. R. 6. The next week, the boys called Susanne a prick teaser. R. 6. In response, Susanne s mother contacted Prentice, threatening to 2

12 file a grievance with the Department of Education. R. 6. Prentice informed Superintendent Sharon Sullenberg ( Sullenberg ) of the complaint, but neither took any action. R. 6. During the persistent harassment, Susanne s grades dropped from straight A s to a mix of B s and C s. R. 5. Over the summer, she was withdrawn and did not want to leave her house or talk with friends. R. 5. She had trouble sleeping and recurring nightmares. R. 5. She was eventually diagnosed by her therapist as suffering from anxiety and depression. R. 5. Respondent initiated her claim in the United States District Court for the Central District of California against DUSD, Sullenberg, Prentice, and Vickers ( Petitioners ) alleging violations of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a); Title IX pursuant to 42 U.S.C. 1983; the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. 1983; and the Unruh Civil Rights Act, California Civil Code ( Unruh Act ). 1 R. 6. Petitioners moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, asserting they were entitled to judgment as a matter of law, both procedurally and substantively. R. 6. The district court denied summary judgment for Petitioners, finding that an action for private damages may lie against a school district for student-on-student sexual harassment. R. 8. The court determined that the Supreme Court abrogated state sovereign immunity for claims under Title IX. R. 8. Further, the court determined that Respondent s Title IX claim did not preclude the bringing of the claims under 1983, nor were the 1983 claims precluded on constitutional grounds. R. 9. The court found that the same rationale for permitting the The record is silent as to the relief requested in the complaint. Respondent addresses both money damages and injunctive relief throughout the brief. The issue of standing for injunctive relief has not been raised by Petitioners. 3

13 claims supported allowance of the state law claims, and therefore, the court denied summary adjudication as to the state law claim on state immunity grounds. R. 9. The court also held that genuine issues of material fact existed with regard to whether the harassment was so severe as to effectively bar Respondent s educational opportunities, as required by the Supreme Court for actions against school districts for student-on-student sexual harassment. R. 10. The court found that Respondent alleged sufficient facts for a jury to find that the school officials acted with deliberate indifference to known harassment, and therefore, the court denied the school district s motion for summary judgment on the merits. R. 10. SU M M A R Y O F T H E A R G U M E N T This Court should affirm the decision of the district court and find that Petitioners are not entitled to summary judgment on procedural grounds. The Supreme Court has found that Title IX provides for a private right of action with both money damages and injunctive relief available as remedies. The Supreme Court has held that student-on-student sexual harassment is actionable against a school district where the school was deliberately indifferent to known acts of harassment. Because the school district did not act reasonably in resolving the acts of harassment by the boys, Respondent may seek both monetary damages and injunctive relief under Title IX. Further, the Supreme Court permits 1983 claims to be brought concurrently with claims under Title IX against school districts and school district officials. Therefore, Respondent s claims under 1983 are not barred. Finally, Respondent s state law claims are not barred because following Supreme Court rationale, school districts and school officials are no longer considered state agents for the purposes of Eleventh Amendment immunity. Alternatively, if school districts and school officials in their official capacities in California are agents of the state, state sovereign immunity 4

14 can be waived by conduct that is incompatible with retaining state sovereign immunity. The record is silent as to facts relating to waiver. For these reasons, this Court should affirm the district court s denial of Petitioners motion for summary judgment on procedural grounds. This Court should also affirm the district court s denial of summary judgment on the merits as there are genuine issues of material fact for Respondent s claims under Title IX, 1983, and the Unruh Act. Under Title IX, a jury could conclude that DUSD had actual knowledge of the harassment and substantial control over the harassers but instead responded with deliberate indifference. This caused Respondent to suffer severe sexual harassment that denied Respondent her educational opportunities. In addition to monetary damages, Respondent can request injunctive relief requiring Petitioners to follow the school s sexual harassment policy and to refer matters that cannot be resolved informally to a Title IX Coordinator or to a review committee. Respondent s claims under 1983 for violations of Title IX and the Equal Protection Clause are also supported by the evidence. A violation of Title IX, by itself, is sufficient for relief under Petitioners violated the Equal Protection Clause because their ineffective response to the harassment was based on the sex of Respondent and her harassers. As a result, they denied her equal protection under DUSD s sexual harassment policy by declining to enforce its provisions on the basis of sex. There is no exceedingly persuasive government interest to support a policy of unequal protection on the basis of a victim s, or the harasser s, sex. The facts underlying this claim should be decided by a jury. Violations of the Equal Protection Clause are sufficient to show a violation of the Unruh Act. The school s failure to prevent the sexual harassment deprived Respondent of the benefits and privileges of a public education, and therefore, is a violation of the Act. Therefore, this 5

15 Court should affirm the district court s denial of Petitioners summary judgment motion on the merits, and allow the matter to be heard by a jury. A R G U M E N T I. PE T I T I O N E RS A R E N O T E N T I T L E D T O SU M M A R Y JUD G M E N T O N PR O C E DUR A L G R O UNDS B E C A USE T H E SUPR E M E C O UR T H AS F O UND ST UD E N T-O N-ST UD E N T SE X U A L H A R ASSM E N T A C T I O N A B L E UND E R T I T L E I X, T H E SUPR E M E C O UR T PE R M I TS 1983 C L A I MS T O B E ASSE R T E D W I T H T I T L E I X C L A I MS, A ND T H E ST A T E L A W C L A I M IS N O T B A RR E D B E C A USE PE T I T I O N E RS D O N O T E NJO Y ST A T E SO V E R E I G N I M M UNI T Y. This Court should affirm the decision of the district court and find that the Delacosta Unified School District, Superintendent Sullenberg, Principal Prentice, and Vice-Principal Vickers are not entitled to summary judgment on procedural grounds. The Supreme Court has recognized an implied private right of action for both monetary damages and injunctive relief for violations of Title IX. Franklin v. Gwinnett Co. Pub. Sch., 503 U.S. 60, 72 (1992); Cannon v. U. of Chi., 441 U.S. 667, 691 (1979). The Supreme Court, in Davis v. Monroe County Board of Education, recognized that recipients of federal funding may be liable under Title IX for studenton-student sexual harassment where the recipient is deliberately indifferent to known acts of harassment. 526 U.S. 629, 647 (1999). Respondent is permitted to seek damages and injunctive relief against the school district pursuant to Title IX. In Fitzgerald v. Barnstable School Committee, the Supreme Court held that parallel and concurrent claims pursuant to 42 U.S.C are available to plaintiffs against school districts and school officials in addition to Title IX claims. 129 S. Ct. 788, 797 (2009). Therefore, Respondent is not barred from seeking relief under Under the rationale of Fitzgerald, the state law claim against the school district and officials is similarly permitted because they were not treated as arms of the state, and therefore do not enjoy state sovereign immunity. If the 6

16 rationale of Fitzgerald did not overrule Belanger v. Madera Unified School District, 963 F.2d 248, 254 (9th Cir. 1992), which treated school districts and school officials in the state of California as arms of the state, Respondent may still overcome summary judgment on the state law claim. While it is undisputed that pendent state law claims against non-consenting states are barred by the Eleventh Amendment, Raygor v. Regents of the U. of Minn., 534 U.S. 533, (2002) (citing Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984)), state actors can waive the Eleventh Amendment immunity defense by conduct that is incompatible with retaining that immunity. Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 759 (9th Cir. 1999) (finding that where the state belatedly asserted the immunity defense, wasting the resources of the court and the litigants, the state waived its immunity). The record is silent on facts relating to waiver. Therefore, summary judgment should be denied. A. Because The Supreme Court Has Found That Student-on-Student Sexual Harassment Is Actionable against A School District under Title I X, The District Court Properly Denied Petitioners Motion For Summary Judgment on Procedural G rounds. Title IX states, no person in the United States shall, on the basis of sex, be... subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. 1681(a). Title IX was enacted pursuant to congressional authority under the Spending Clause, and the nature of the legislation is much like a contract: in return for federal funds, the States agree to comply with federally imposed conditions. Davis, 526 U.S. at 640. Congress abrogated state sovereign immunity under Title IX. Franklin, 503 U.S. at 72. The Supreme Court has recognized an implied private right of action under Title IX, Cannon, 441 U.S. at 691, and has held that both monetary damages and injunctive relief are permitted. Franklin, 503 U.S. at 76. Student-on-student sexual harassment is actionable under Title IX where school officials are deliberately indifferent to known harassment and where the behavior 7

17 is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX was designed to protect. Davis, 526 U.S. at , 652. There is no procedural bar to Respondent s claim for money damages or injunctive relief under Title IX. As DUSD receives federal funds, R. 2, Respondent is entitled to pursue both injunctive relief and monetary damages. The Supreme Court has found actionable the type of conduct at issue in this case: student-on-student sexual harassment where school administrators were deliberately indifferent. See Davis, 526 U.S. at Thus, Respondent can seek both money damages and injunctive relief under Title IX. B. Respondent s Claims under 42 U.S.C A re Not Barred Because The Supreme Court in Fitzgerald Made Clear That Plaintiffs Can Seek Remedies Against School Districts And School Officials Pursuant to 1983 in Addition to Title I X Claims. In Fitzgerald v. Barnstable School District, the Supreme Court considered whether Congress intended Title IX to be the exclusive avenue through which a plaintiff may assert the claim such that 1983 claims are precluded. 129 S. Ct. 788, 794 (2009) (citations omitted). The Court concluded that Title IX, unlike some other statutes, was not exclusive and that Congress intended Title IX... to allow for parallel and concurrent 1983 claims. Id. at 797. The Court noted that while Title IX liability only extends to funding recipients, not officials, 1983 claims can be brought against individuals and entities. Id. at 796 (citation omitted). As to the equal protection claim under 1983, the Court stated that Title IX exempts various activities from its coverage that may form the basis of equal protection claims. Id. at 796. It did not matter that the activities exempted from Title IX did not form the basis of the Fitzgerald plaintiff s claim, nor did it matter that damages and injunctive relief were available under both 1983 and Title IX; the Court held that 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools. Id. at

18 Under Fitzgerald, Respondent s 1983 claims for violations of the Equal Protection Clause of the Fourteenth Amendment and Title IX are not precluded by the filing of a Title IX claim. This is true despite the fact that Respondent may obtain injunctive relief, monetary damages, and attorney s fees under Title IX. While the Court s opinion in Fitzgerald focused on the 1983 claim for a violation of the Equal Protection Clause, the opinion permits plaintiffs to assert claims under 1983 for Title IX violations even where the plaintiff has also asserted a Title IX claim. Id. at 797 ( Congress intended Title IX to be interpreted similarly to allow for parallel and congruent 1983 claims. ); Cartwright v. Regents of U. of Cal., 2009 U.S. Dist. LEXIS at *19 (E.D. Cal. July 22, 2009). The rationale of the Court for determining that Title IX is not exclusive and permitting 1983 claims for equal protection violations are equally true with regard to Title IX claims under Fitzgerald, 129 S. Ct. at (finding that since Title IX did not require an exhaustion of certain administrative requirements and did not limit the remedies available to plaintiffs, plaintiffs could not circumvent Title IX s requirements through 1983). Both the Respondent here and the plaintiff in Fitzgerald asserted Title IX claims, a state law claim, and two 1983 claims one for an equal protection violation and one for a Title IX violation and the Court reversed the dismissal of both 1983 claims. Id. at , 798 (emphasis added). Because the plaintiff in Fitzgerald asserted only two 1983 claims, and one was for a violation of Title IX, the Court reversed the dismissal of that claim as well when it reversed the dismissal of both the 1983 claims. Cartwright, 2009 U.S. Dist. LEXIS at *19 ( [T]he clear import of the Supreme Court s order is that plaintiffs may use 1983 as a vehicle for litigating both constitutional and statutory claims. ). Furthermore, prior to Fitzgerald, a district court in California allowed plaintiffs to assert 1983 claims for violations of Title IX. See e.g. Annamaria M. v. Napa Valley Unified Sch. Dist., 2006 U.S. Dist. LEXIS 9

19 38641 at * 20 (N.D. Ca. May 30, 2006). In sum, Fitzgerald and Cartwright permit parallel and concurrent 1983 claims even when Title IX is available and the same remedies are available under both statutes. 2 Additionally, because of Fitzgerald, the fact that Respondent sued the school district and the school officials in their official capacity is irrelevant to the question of the availability of relief under As noted by the district court, the rationale in Schroeder v. San Diego Unified School District, 2009 U.S. Dist. LEXIS **18-19 (S.D. Cal. May 13, 2009) that school districts and school officials sued in their official capacities are immune from damages under 1983 is not binding or persuasive. R. 9 n.1. The Schroeder court relied on Belanger v. Madera Unified School District, 963 F.2d 248, 254 (9th Cir. 1992) to hold that school districts in California were arms of the state, and therefore, school districts were immune from suit in federal court absent waiver, and school officials sued in their official capacities under 1983 were immune from money damages. Schroeder, 2009 U.S. Dist. LEXIS ** In light of Fitzgerald, which held that 1983 claims could be brought against the school committee and the individual defendants, DUSD and the individual defendants here are not immune from suit under Therefore, this Court should affirm the district court s denial of Petitioners motion for summary judgment as to the 1983 claims on procedural grounds. If this Court does not find that Fitzgerald undermined Belanger s treatment of California school districts as arms of the state, Respondent can still obtain relief under In 42 U.S.C. 1983, Congress provided a cause of action for an individual against a person, acting under the color of state law, who deprived the individual of any rights, privileges, or immunities 2 Before Fitzgerald was decided, some circuits held that plaintiffs could not bring 1983 claims for violations of Title IX. See e.g. Williams v. Bd. of Regents of the U. Sys. of Ga., 477 F.3d 1283, 1300 (11th Cir. 2007). After Fitzgerald, these cases can no longer be considered good law. 10

20 protected by the Constitution and the laws of the United States. The Supreme Court has clearly stated that a State is not a person for the purposes of 1983, Will v. Mich. Dept. of St. Police, 491 U.S. 58, 64 (1989), and a state official sued in his or her official capacity is no different than a suit against the state itself. Id. at 71 (citing Ky. v. Graham, 473 U.S. 159, (1985); Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Despite this, a state official sued in his or her official capacity for injunctive relief is a person for 1983 purposes because official-capacity actions for prospective relief are not treated as actions against the State. Id. at 71 n.10 (quoting Graham, 473 U.S. at 167 n.14). In this case, Respondent can nonetheless seek injunctive relief against these defendant officials sued in their official capacities. Will, 491 U.S. at 71 n. 10; Graham, 473 U.S. at 167 n.14; see also Ex Parte Young, 209 U.S. 123, (1908) (holding that a suit against state officers for injunctive relief is not a suit against the state for Eleventh Amendment purposes). Respondent s claim for injunctive relief under 1983 is, therefore, not procedurally barred. 3 C. In Light of The Supreme Court s Rationale in Fitzgerald, Respondent s State Law Claim Is Not Barred. Respondent s state law claim is not barred on procedural grounds. The Supreme Court in Fitzgerald held that Congress did not intend for Title IX to be an exclusive remedy, and therefore parallel and concurrent 1983 claims against school districts and school district officials were not barred. 129 S. Ct. at 797. The rationale in Fitzgerald, as suggested by the district court, was not limited to 1983 claims and extends to state law claims against school districts. R Many courts have found that even though a state is not a person for the purposes of 1983, money damages may be available if the state waived state sovereign immunity. See e.g. Brown v. Cal. Dept. of Corrections, 554 F.3d 747, 752 (9th Cir. 2009); M.A. v. St. Operated Sch. Dist., 344 F.3d 335, n.9 (3d Cir. 2003) (stating that the Eleventh Amendment analysis governed the state s objections to the 1983 claims). This Court should find that waiver is relevant to 1983 claims. Therefore, Respondent can seek money damages under 1983 if Petitioners waived state sovereign immunity. 11

21 Stanley v. Trustees of the California State University, 433 F.3d 1129, (9th Cir. 2006), which barred state law claims on state sovereign immunity grounds, can no longer be considered good law in light of Fitzgerald. R. 9. The Supreme Court s treatment in Fitzgerald of suits against school districts under 1983 as not involving issues of state sovereign immunity undermines the rationale of Belanger v. Madera Unified School District, 963 F.2d 248, 254 (9th Cir. 1992) that school districts and school officials in their official capacity are arms of the state. See Fitzgerald, 129 S. Ct Therefore, state sovereign immunity is not relevant to the state law claim since school districts and school officials after Fitzgerald are not arms of the state. For these reasons, this Court should affirm the lower court s denial of Petitioners motion for summary judgment on procedural grounds as to the state law claim. If this Court finds that Stanley s rationale was not overruled by Fitzgerald, Respondent would only be able to defeat summary judgment on the state law claim if Petitioners waived state sovereign immunity. Pendent state law claims against non-consenting states are barred by the Eleventh Amendment. Raygor v. Regents of the U. of Minn., 534 U.S. 533, (2002) (citing Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984)). The Eleventh Amendment immunity does not destroy a federal court s original jurisdiction; rather, states can waive the privilege, and the federal court can exercise jurisdiction. Wis. Dept. of Corrections v. Schacht, 524 U.S. 381, 389 (1998). State actors can waive the Eleventh Amendment immunity defense by engaging in conduct that is incompatible with an intent to preserve that immunity. Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 758 (9th Cir. 1999) (citations omitted). Out of concern for judicial resources and fair warning to plaintiffs, the Ninth Circuit has held that defendants cannot belatedly assert the Eleventh Amendment immunity defense. Hill, 179 F.3d at (requiring timely disclosure to provide[] fair warning to the plaintiff, who can amend 12

22 the complaint, dismiss the action and refile it in state court, or request a prompt ruling on the Eleventh Amendment defense before the parties and the courts have invested substantial resources in the case. ); see also Thompson v. U. of S.C., 2006 U.S. Dist. LEXIS *18 (D.S.C. June 30, 2006) (stating that the Ninth and Sixth Circuits hold that litigating a claim through the discovery process before asserting the defense in a motion for summary judgment constitutes waiver. ). The Eleventh Amendment is an affirmative defense that must be raised in the defendant s answer. Douglas v. Cal. Dept. of Youth Auth., 271 F.3d 812, 821 (9th Cir. 2001); ITSI TV Prods., Inc. v. Agric. Assns, 3 F.3d 1289, 1291 (9th Cir. 1993). The failure to plead an affirmative defense constitutes a waiver of that defense. Ariz. v. Cal., 530 U.S. 392, 410 (2000). To the extent that Petitioners in this case did not raise the defense in their answer or did not raise the immunity defense early enough in the proceedings, their immunity is waived. As the record is silent on facts relating to waiver, there is an issue as to whether the state waived its sovereign immunity for the state law claims. For these reasons, this Court should affirm the district court s denial of summary judgment on procedural grounds. The Supreme Court has found that student-on-student sexual harassment is actionable against a school district, and therefore, Respondent s Title IX claim is not procedurally barred. Davis, 526 U.S. at 647. Title IX is not an exclusive remedy, and concurrent 1983 claims may be asserted along with claims under Title IX. Fitzgerald, 129 S. Ct. at 797. School districts and school officials are not state agents after Fitzgerald, and do not enjoy state sovereign immunity for state law claims. See id. at For these reasons, Respondent is not procedurally barred on her Title IX, 1983, and state law claims, and this Court should affirm the lower court s denial of summary judgment on procedural grounds. 13

23 II. PE T I T I O N E RS A R E N O T E N T I T L E D T O SU M M A R Y JUD G M E N T O N T H E M E RI TS B E C A USE T H E R E A R E G E NUIN E ISSU ES O F M A T E RI A L F A C T AS T O W H E T H E R PE T I T I O N E RS V I O L A T E D T I T L E I X, T H E E Q U A L PR O T E C T I O N C L A USE, A ND T H E UNRU H C I V I L RI G H TS A C T B Y F A I L IN G T O PR OPE R L Y R ESPO ND T O SE X U A L H A R ASSM E N T IN F L I C T E D O N R ESPO ND E N T B Y H E R F E L L O W ST UD E N TS. Petitioners are not entitled to summary judgment on the merits. Summary judgment will be granted when the pleadings and evidence show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the non-moving party shows that genuine issues of material fact are in dispute, summary judgment must be denied. Reese v. Jefferson Sch. Dist., 208 F.3d 736, 738 (9th Cir. 2000). Title IX requires Respondent to show that she was severely harassed, that DUSD had actual knowledge of the harassment, that DUSD had substantial control over the harassers, and that DUSD responded with deliberate indifference. Davis, 526 U.S. at 632. Respondent s evidence creates a genuine issue of material fact as to all of these requirements. Respondent s 1983 claims are also supported by the evidence. A violation of Title IX, by itself, is sufficient to state a claim under Oona v. Santa Rosa City Schs., 890 F. Supp. 1452, (N.D. Cal. 1995). A school violates the Equal Protection Clause when it fails to enforce a neutral harassment policy because of a student s membership in a definable minority. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003). Here, there is evidence that DUSD responded differently and provided less protection to Susanne because of her sex and the sex of her harassers. Finally, Respondent can overcome summary judgment on the Unruh Act claim. Public schools are business establishments covered by the Unruh Act. Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560, (N.D. Cal. 1993). Evidence of violations of Title IX and the Equal Protection Clause demonstrate a violation of the Unruh Act because they show that 14

24 Susanne was denied educational access on the basis of her sex. See Nicole M. v. Martinez Unified Sch. Dist., 964 F. Supp. 1369, 1388 (N.D. Cal. 1997). Therefore, the district court correctly denied Petitioners motion for summary judgment on the merits. A. Respondent Can Defeat Summary Judgment on T he Title I X Claim for Monetary And Injunctive Relief Because DUSD Had Actual K nowledge of The Severe Harassment, DUSD Responded with Deliberate Indifference, And DUSD Had Substantial Control over Both The A reas Where The Harassment Occurred And The Harassers. The district court correctly denied summary judgment for DUSD because the evidence strongly supports the existence of a Title IX claim. Title IX prohibits an entity receiving federal education funds from discriminating on the basis of sex. See supra Part I.A. The Supreme Court in Davis held that where a school fails to adequately prevent student-on-student sexual harassment, Title IX can be violated. 526 U.S. at 632. For student-on-student harassment to be actionable under Title IX: (1) the harassment must be sufficiently severe, pervasive and objectively offensive ; (2) the school must have actual knowledge of the harassment; (3) the school must have responded with deliberate indifference ; and (4) the school must have substantial control over both the harasser and the context in which the known harassment occurs. Reese, 208 F.3d at 739 (citing Davis, 526 U.S. at ). 1. Respondent repeatedly suffered severe and pervasive sexual harassment. Because Title IX was implemented to provide equal access to educational opportunities for both genders, sexual harassment which impedes such opportunities is actionable. See Davis, at 650 (Title IX makes clear that... students must not be denied access to educational benefits and opportunities on the basis of gender. ). The Court permits an action for student-on-student sexual harassment when it is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the 15

25 school. Id. In Davis, the Court found that where a student had been harassed for a five month period, and such harassment was not only verbal but involved inappropriate touching, the plaintiff had presented a triable issue of fact under Title IX. Id. at Courts in this circuit have found severe harassment where victims have suffered similar abuse to that experienced by Susanne. See Roe v. Gustine Unified Sch. Dist., 2009 U.S. Dist. LEXIS at *66 (E.D. Cal. Dec 22, 2009); Annamaria M., 2006 U.S. Dist. LEXIS at *10. For example, in Annamaria M., the harassers [r]epeatedly rubbed Annamaria's buttocks with their feet while they made lewd comments such as you are a slut, you want to fuck me?, give me head and let me touch your ass. They would gesture that they wanted sexual favors from Annamaria by, for example, grabbing their crotches and asking Annamaria to have sex with them U.S. Dist. LEXIS at *3. The effect the harassment has on the victim is also relevant to determining its severity. Id. at **8-9 (considering the physical and emotional symptoms of the victim in deciding whether the harassment was sufficiently severe and pervasive). The facts of Annamaria M. are strikingly similar to the type of abuse repeatedly inflicted upon Susanne. Here, Susanne was forcefully grabbed on her buttocks, breasts, and genital areas. R. 3. She was the target of crude gestures simulating oral sex. R. 3. She was called a prick teaser. R. 6. She was subjected to sexually inappropriate questions such as: What bra size are you wearing? ; What color are your panties? ; and When are you going to let me have my way with you? R. 3. She was targeted with foul and abusive language including the words fuck, cock, and cunt. R. 3. She was intentionally exposed to ridicule by the posting of a demeaning and sexually suggestive MySpace profile. R. 5. She was intimidated by a note from her harassers that indicated, We ll miss you but we know where you are and we ll be watching you. R. 5. In sum, Susanne was subjected to repeated, severe, and objectively offensive conduct for a period of approximately one year. R Susanne s grades dropped from all A s to a mix of B s and C s. 16

26 R. 5. Susanne is no longer able to ride the school bus, and her mother has to pay someone to drive her to DMS. R. 6. During the summer break, Susanne did not want to leave her house, rarely spoke with friends, had trouble sleeping, and suffered from nightmares. R. 5. She is currently seeing a therapist, who diagnosed her with anxiety and depression. R. 5. Based on the standards from Davis and the evidence here, Susanne has shown that the harassment she was subjected to was sufficiently severe to warrant relief under Title IX, and summary judgment should therefore be denied. 2. DUSD and its officials had actual knowledge of the sexual harassment that Respondent experienced while she was a student at D MS. In Davis, the Court required that a funding recipient have actual knowledge of studenton-student harassment before being subjected to liability. 526 U.S. at 650. For DUSD to have actual knowledge, the harassment must have been reported to an official of the school district who at a minimum ha[d] authority to institute corrective measures on the district's behalf. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998). Prentice and Vickers satisfy this criterion, as Susanne and her mother repeatedly notified them of the harassment. R When the harassment first began on the school bus, Susanne reported the offending conduct to the bus driver, who passed the complaint along to DMS administration. R. 3. After Susanne was accosted in the hallway on April 1, 2009, she and her mother contacted Vickers, who had direct responsibility for disciplinary matters at DMS. R. 4, 6. Vickers knew of this incident from anonymous s, and had informed Principal Prentice of the incident. R. 4. Vickers heard reports of the offensive MySpace page, and after viewing it, concluded that it was probably about Susanne Quiller. R. 5. He informed Prentice of the internet profile s existence, but neither Prentice nor Vickers took any action. R. 5. Susanne s mother complained to Vickers about the continuing sexual harassment in August R. 6. Vickers told Prentice 17

27 of the complaint, but Prentice declined to get involved. R. 6. Susanne s mother then contacted Prentice directly, who informed Superintendent Sullenberg of the situation. R. 6. As school officials who had direct control over student discipline, notice to Vickers and Prentice was sufficient to impute knowledge to DUSD itself. See Gebser, 524 U.S. at 290. DUSD s own sexual harassment policy designates any vice-principal or principal as an appropriate recipient for a complaint. R. 12. The detail provided in the complaints was more than sufficient for the recipients to both comprehend that the offensive conduct was sexual in nature, and to remedy it. See Roe, 2009 U.S. Dist. Lexis at *64 (whether the school official possessed enough knowledge of the harassment that [he or she] reasonably could have responded with remedial measures is relevant). Therefore, DUSD had actual knowledge of the sexual harassment complaints sufficient to trigger the remedial requirements of Title IX. 3. DUSD showed deliberate indifference to Respondent s repeated sexual harassment complaints by responding with ineffective measures and disregarding DUSD s own sexual harassment policy. In Davis, the Court concluded that Title IX liability against a funding recipient requires a finding of deliberate indifference to student-on-student sexual harassment. 526 U.S. at Courts find deliberate indifference when a school s ineffective response causes students to be more vulnerable to sexual harassment. Id. at 645. A minimal response will not negate a finding of deliberate indifference if the response is clearly unreasonable in light of the known circumstances. Id. at 648; accord Jane Doe A v. Green, 298 F. Supp. 2d 1025, 1036 (D. Nev. 2004) ( [p]ermitting a school district to avoid liability on the basis of some minimalist and ineffective response... would be inconsistent with Davis). Failure to follow an official sexual harassment policy can also support a finding of deliberate indifference. See Brodeur v. Clermont Sch. Dist., 626 F. Supp. 2d 195, 211 (D.N.H. 2009) (failure to report alleged incident to District 18

28 Superintendent as required by the sexual harassment policy supported a finding of deliberate indifference). Deliberate indifference is a fact-laden question, Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 457 n.12 (5th Cir. 1994), and therefore, should normally be left for the jury to decide. Roe, 2009 U.S. Dist. LEXIS at ** (citations omitted). Petitioners did little more than verbally warn the harassers. When Susanne told the bus driver of the boys conduct, the driver passed the complaint along to the school administration, yet DUSD officials took no action. R. 3. After the April Fools incident, Vickers threatened to suspend the boys and ordered them to sit in the front row of the bus. R. 5. The boys disregarded both instructions, and no subsequent disciplinary action was taken even though Susanne s mother informed Vickers his solution was ineffective. R. 5. After learning of the MySpace page, neither Prentice nor Vickers took any action. R. 5. At the beginning of the new school year, Vickers again learned of the boys misconduct towards Susanne and again only threatened them with suspension or expulsion. R. 6. After the boys called Susanne a prick teaser, Susanne s mother contacted Prentice, and requested that the boys be expelled. R. 6. Prentice declined to take any action. R. 6. At no time did either Vickers or Prentice inform Susanne or her mother of DUSD s sexual harassment policy or Title IX grievance procedures. R. 4. DUSD s response to the repeated sexual harassment was clearly unreasonable. First, DUSD failed to take appropriate corrective measures to remedy the harassment. DUSD never did anymore than verbally threaten the boys with suspension or expulsion when their extreme harassment continued despite repeated warnings. Second, DUSD disregarded its own sexual harassment policy by not referring the matter to the Title IX Coordinator when informal resolution was unsuccessful. While the policy allows for school administrators to attempt to resolve complaints informally, if [a] complaint cannot be resolved informally, the matter shall 19