Fitzgerald v. Barnstable School Committee

United States Court of Appeals
For the First Circuit

No. 06-2596

LISA RYAN FITZGERALD, ETC., ET AL.,

Plaintiffs, Appellants,

v.

BARNSTABLE SCHOOL COMMITTEE ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]
[Hon. Robert E. Keeton, Senior U.S. District Judge]

Before

Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Dyk,** Circuit Judge.

Wendy A. Kaplan, with whom Anne Glennon and Law Office of
Wendy A. Kaplan were on brief, for appellants.
Emily J. Martin, Lenora M. Lapidus, Sarah R. Wunsch, and
American Civil Liberties Union Foundation, Woman's Rights Project
on brief for American Civil Liberties Union, American Civil
Liberties Union of Massachusetts, Crittenton Women's Union, Equal
Rights Advocates, Jane Doe, Inc., Legal Momentum, Massachusetts
Society for the Prevention of Cruelty to Children, Dr. Nan Stein,
National Partnership on Women & Families, National Women's Law

*
Of the Federal Circuit, sitting by designation.
Center, Sargent Shriver National Center on Poverty Law, Women's Bar
Association of Massachusetts, and Women's Law Project, amici
curiae.
Andrea C. Kramer and Sullivan, Weinstein & McQuay on brief for
Women's Bar Ass'n of Mass., amicus curiae.
John M. Simon, with whom Kay H. Hodge, Joan L. Stein, and
Stoneman, Chandler & Miller LLP were on brief, for appellees.

October 5, 2007
 SELYA, Senior Circuit Judge. This appeal grows out of

allegations that paint a grotesque picture of peer-on-peer sexual

harassment at the elementary school level. The district court,

acting initially on a motion to dismiss and thereafter on a motion

for summary judgment, resolved the case in favor of the defendants

(a school committee and school superintendent). Although we in no

way condone harassment such as is alleged here, we are mindful that

school districts and school officials have limited ability to guard

against such incidents. The defendants in this case responded

reasonably to the reported harassment — and that is all that the

law requires. Accordingly, even though we disagree with one

portion of the district court's decisional calculus, we affirm the

judgment below.

I. BACKGROUND

The essential facts (some undisputed, some alleged) are

outlined in the district court's exegetic opinion on summary

judgment, see Hunter v. Barnstable Sch. Comm., 456 F. Supp. 2d 255,

259-61 (D. Mass. 2006), and we assume the reader's familiarity with

-3-
that account.1 Consequently, we furnish here only a brief synopsis

of the details directly relevant to our analysis.

On the morning of February 14, 2001, Jacqueline

Fitzgerald, a kindergarten student, informed her parents, Lisa Ryan

and Robert Fitzgerald, that each time she wore a dress to school —

typically, two to three times a week — an older student on her

school bus would bully her into lifting her skirt. Lisa Ryan

Fitzgerald believed that these incidents accounted for recent

changes in Jacqueline's behavior. She immediately called the

principal of Jacqueline's school, Frederick Scully, to report the

allegations.

The school system employed a prevention specialist, Lynda

Day, whose responsibilities included responding to reports of

inappropriate student behavior and instituting warranted

disciplinary measures. Scully and Day met with Jacqueline and her

parents later that morning. Because school officials were unable

to identify the alleged perpetrator from Jacqueline's sketchy

account, they arranged for her to observe students disembarking

from the school bus.

1
Due to the sensitive nature of the subject matter, the
district court employed pseudonyms to mask the protagonists'
identities. The parties have opted not to follow the district
court's lead; they have filed their briefs and other papers using
true names and eschewing any effort at sealing. Under these
circumstances, the continued use of pseudonyms would be an empty
gesture.

-4-
 This surveillance took place over the next two days.

Jacqueline identified the perpetrator as Briton Oleson, a third-

grader. That same day, Scully and Day questioned Briton, who

steadfastly denied the allegations. Day then interviewed the bus

driver and a majority of the students who regularly rode the bus.

Despite these efforts, she was unable to corroborate Jacqueline's

version of the relevant events.

Shortly thereafter, the Fitzgeralds told Scully that

Jacqueline had furnished additional details about her ordeal. She

now said that, in addition to pressing her to lift her dress,

Briton had bullied her into pulling down her underpants and

spreading her legs. Scully immediately scheduled a meeting with

the Fitzgeralds in order to discuss this new information. He also

re-interrogated Briton and followed up on some of the interviews

that Day had conducted.

By this time, the local police department had launched a

concurrent investigation. This probe was handled by a detective

specializing in juvenile matters, Reid Hall, who among other things

questioned both Jacqueline and Briton. Hall found Briton credible,

and the police department ultimately decided that there was

insufficient evidence to proceed criminally against him. Relying

in part on this decision and in part on the results of the school's

own investigation, Scully reached a similar conclusion as to

disciplinary measures.

-5-
 During the currency of these probes, the Fitzgeralds had

been driving Jacqueline to and from school. In late February, the

school offered to place her on a different bus or, alternatively,

to leave rows of empty seats between the kindergarten students and

the older pupils on the original bus. The Fitzgeralds rejected

these suggestions. The school's primary suggestion — switching

buses — attracted special indignation; in the Fitzgeralds' eyes,

the school was punishing Jacqueline rather than Briton (who would

continue to ride the original bus).

The Fitzgeralds countered with a series of other

alternatives, such as placing a monitor on the bus or transferring

Briton to a different bus. The superintendent of the school

system, Russell Dever, declined to implement any of these

proposals.

Although her parents' actions ensured that there were no

further incidents aboard the school bus, Jacqueline asserted that

she had several unsettling interactions with Briton as the school

year progressed. Some were casual encounters in the hallways. The

most notable interaction, however, occurred during a mixed-grade

gym class. This was an episode in which a gym teacher randomly

required Jacqueline to give Briton a "high five."

Each incident was acknowledged by Scully as soon as it

was reported, and there is no claim that Scully failed to address

-6-
these incidents. In any event, Jacqueline stopped participating in

gym class and began to miss school with increasing frequency.

In April of 2002, the Fitzgeralds sued two defendants —

the elementary school's governing body (the Barnstable School

Committee) and the superintendent — in the federal district court.

Their complaint included (i) a claim against the School Committee

for violation of Title IX of the Education Act Amendments of 1972,

20 U.S.C. §§ 1681-1688; (ii) claims against both the School

Committee and the superintendent under 42 U.S.C. § 1983; and (iii)

a miscellany of state-law claims against both defendants.

In due season, the defendants filed an omnibus motion to

dismiss. Ruling ore sponte, the district court (Keeton, J.)

granted the motion as to the section 1983 and state-law claims but

denied it as to the Title IX claim. Following the completion of

discovery, the School Committee moved for summary judgment on the

latter claim. The district court (Young, J.) obliged. See Hunter,

456 F. Supp. 2d at 266. This timely appeal ensued.

II. THE TITLE IX CLAIM

We begin with the plaintiffs' contention that the

district court erred in granting summary judgment on the Title IX

claim. We afford de novo review to that ruling and, in so doing,

we apply the same legal standards that pertained in the lower

court. See Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1,

8 (1st Cir. 2007). Thus, we may affirm this disposition only if

-7-
the facts contained in the summary judgment record, viewed in the

light most congenial to the nonmovants (here, the Fitzgeralds),

show beyond legitimate question that the movant (here, the School

Committee) is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(c); Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.

2006).

When conducting this tamisage, we must resolve any

factual conflicts to the plaintiffs' behoof and draw all reasonable

inferences from the facts in their favor. See Houlton Citizens'

Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). We

are free, however, to disregard "conclusory allegations, improbable

inferences, and unsupported speculation." Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

We turn next to the substantive law that governs the

claim in question. Title IX provides, in relevant part, that "[n]o

person . . . shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving

Federal financial assistance." 20 U.S.C. § 1681(a). Although the

statute does not contain an explicit private right of action as a

vehicle for enforcing its commands, the Supreme Court has

interpreted it to confer such a right. See Cannon v. Univ. of

Chi., 441 U.S. 677, 717 (1979). Under this judicially implied

private right of action, aggrieved parties may recover pecuniary

-8-
damages for violations. See Franklin v. Gwinnett County Pub. Sch.,

503 U.S. 60, 76 (1992).

A school should be a haven for a youngster, and sexual

harassment in an elementary school is never to be condoned. But

schools and school officials face a daunting challenge in

maintaining a safe, orderly, and well-disciplined environment.

Where peer-on-peer sexual harassment is alleged, the Title IX

framework, as authoritatively interpreted, imposes a distinct set

of legal rules. Within that framework, an educational institution

— and for present purposes we treat the School Committee, which

stands in the shoes of Jacqueline's elementary school, as an

educational institution — may be liable for student-on-student

sexual harassment in certain limited circumstances. See Davis v.

Monroe County Bd. of Educ., 526 U.S. 629, 643 (1999). To prevail

on such a claim, a student first must show that the educational

institution is covered by Title IX, that is, that the institution

is a recipient of federal funding.2 See 20 U.S.C. § 1681(a).

Then, the student must prove that severe, pervasive, and

objectively offensive harassment occurred; that the harassment

deprived her of educational opportunities or benefits; that the

educational institution had actual knowledge of the harassment;

and, finally, that the institution's deliberate indifference caused

2
Here, the affected student and her parents are all
plaintiffs. Since the parents' rights are derivative, their
presence in the case does not alter the baseline legal rules.

-9-
the student to be subjected to the harassment. See Porto v. Town

of Tewksbury, 488 F.3d 67, 72-73 (1st Cir. 2007).

Some comment is in order with respect to this final

requirement. Title IX does not make an educational institution the

insurer either of a student's safety or of a parent's peace of

mind. Understandably, then, "deliberate indifference" requires

more than a showing that the institution's response to harassment

was less than ideal. In this context, the term requires a showing

that the institution's response was "clearly unreasonable in light

of the known circumstances." Davis, 526 U.S. at 648. Relatedly,

to "subject" a student to harassment, the institution's deliberate

indifference must, at a minimum, have caused the student to undergo

harassment, made her more vulnerable to it, or made her more likely

to experience it. See id. at 645.

In this instance, three basic points are not in dispute.

First, it is uncontradicted that the elementary school is a

creature of the School Committee; that the School Committee is a

recipient of federal funds; and that, therefore, the School

Committee is legally bound to comply with the strictures of Title

IX. Second, the parties agree that the School Committee acquired

actual knowledge of the school-bus harassment on February 14, 2001

(when Lisa Ryan Fitzgerald reported what Jacqueline had told her).

Third, it cannot be gainsaid that, if true, Jacqueline's allegation

— that she was forced to pull up her skirt, drop her underpants,

-10-
and spread her legs — constituted severe, pervasive, and

objectively offensive harassment.

The waters are murkier beyond this frontier. In the

district court's view, the plaintiffs' claim turned on a point of

law: that a Title IX defendant could not be found deliberately

indifferent as long as the plaintiff was not subjected to any acts

of severe, pervasive, and objectively offensive harassment after

the defendant first acquired actual knowledge of the offending

conduct. Hunter, 456 F. Supp. 2d at 263-64. This ruling dictated

the outcome because the court found that the later interactions

between Jacqueline and Briton — even when viewed in light of the

allegations about Briton's previous conduct — did not constitute

continued sexual harassment. Id. at 265-66. Title IX liability,

the court reasoned, therefore could not attach. Id.

The plaintiffs and the amici assail this statement of the

law. They note that other courts have found (or countenanced the

possibility of finding) Title IX liability, even though the

plaintiff alleged only a single incident of pre-notice harassment.

See, e.g., Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253,

259 (6th Cir. 2000). Along these lines, the Eleventh Circuit has

held that Title IX discrimination can occur even after a student

has withdrawn from school and left the campus. See Williams v. Bd.

of Regents, 477 F.3d 1282, 1297 (11th Cir. 2007). Though removed

from the vicinity of her harassers, the victim in Williams could

-11-
still be subject to the university's discrimination, which in that

case took the form of a failure "to take any precautions that would

prevent future attacks." Id.

Given this well-reasoned line of authority, we conclude

that the district court's rationale is flawed. According to its

statement of the law, Title IX liability only attaches after an

institution receives actual notice of harassment and the

institution subsequently "causes" the victim to be subjected to

additional harassment. Hunter, 456 F. Supp. 2d at 255-56. To the

extent that it held that harassment cannot be "caused" if that

harassment never occurs, the district court was on sound footing.

Withal, its formulation of the law overly distills the rule set

forth by the Davis Court. There, the Court stated that funding

recipients may run afoul of Title IX not merely by "caus[ing]"

students to undergo harassment but also by "mak[ing] them liable or

vulnerable" to it. Davis, 526 U.S. at 645 (quoting The Random

House Dictionary of the English Language 1415 (1966)) (internal

quotation marks omitted).

This broader formulation clearly sweeps more situations

than the district court acknowledged within the zone of potential

Title IX liability. See, e.g., Wills v. Brown Univ., 184 F.3d 20,

27 (1st Cir. 1999) ("On some cases, merely to maintain a harasser

in a position of authority over the victim, after notice of prior

harassment, could create new liability."). Under it, a single

-12-
instance of peer-on-peer harassment theoretically might form a

basis for Title IX liability if that incident were vile enough and

the institution's response, after learning of it, unreasonable

enough to have the combined systemic effect of denying access to a

scholastic program or activity.3 A fortiori, a case such as the

one before us theoretically could form a basis for Title IX

liability, given that post-notice interactions between the victim

and the harasser have been alleged. The district court therefore

erred in truncating its analysis and declining to conduct a broader

deliberate indifference inquiry.

Despite this error, we may affirm the district court's

entry of summary judgment if that result is supportable on some

alternative ground made manifest by the record. See Houlton

Citizens' Coal., 175 F.3d at 184. That is the situation here.

To be sure, some of the facts regarding the school's

response to the harassment are in legitimate dispute. For summary

judgment purposes, these conflicts must be resolved favorably to

3
We do not mean to imply that single-incident liability will
occur frequently. See Davis, 526 U.S. at 652-53 ("Although, in
theory, a single instance of sufficiently severe one-on-one peer
harassment could be said to have such [a systemic] effect, we think
it unlikely that Congress would have thought such behavior
sufficient to rise to this level in light of the inevitability of
student misconduct and the amount of litigation that would be
invited by entertaining claims of official indifference to a single
instance of one-on-one peer harassment."). In all events, a single
incident of harassment must be such as to produce a "systemic
effect on educational programs or activities" in order to engender
liability under Title IX. Id.

-13-
the plaintiffs. See id. Other facts, however, are not in

legitimate dispute. Those facts, together with the plaintiffs'

version of the genuinely contested facts, create a composite that

negates the claim of deliberate indifference. We explain briefly.

The plaintiffs admit that Scully met with them on the

very morning that they notified the school of Jacqueline's plight.

They also acknowledge that Scully immediately launched an

investigation. This investigation consisted of multiple interviews

of both Jacqueline and Briton, an interview of the bus driver,4 and

individual interviews of between 35 and 50 children who regularly

rode the bus. A number of follow-up interviews were then

conducted, including re-interviews of two students who were alleged

to have witnessed the critical events. Furthermore, the school

cooperated fully in an investigation undertaken by the local police

and took the results of that investigation into account in

considering disciplinary options.

Within two weeks after the initial report of harassment

(and despite its inability to confirm that the harassment had in

fact occurred), the school offered to change Jacqueline's transit

4
The parties dispute whether Day told the bus driver about
Jacqueline's allegations at the time of the interview. We resolve
this conflict in favor of the appellants, as we are obligated to do
by the summary judgment standard. It nonetheless suffices, for
present purposes, to note that according to both parties' accounts,
the driver had an opportunity to report to Day any untoward bus
behavior that she had observed — including Briton's — and that she
in fact failed to mention any such incidents.

-14-
assignment so that she could continue to ride a bus to and from

school without being forced to interact with Briton. The school

also suggested, as an alternative, separating kindergarten students

from older students by leaving empty a row or two of seats on the

bus.5

These actions may not have constituted an ideal response

to the complaint of harassment. In hindsight, there may be other

and better avenues that the School Committee could have explored or

other and better questions that could have been asked during the

interviews. But Title IX does not require educational institutions

to take heroic measures, to perform flawless investigations, to

craft perfect solutions, or to adopt strategies advocated by

parents. The test is objective — whether the institution's

response, evaluated in light of the known circumstances, is so

deficient as to be clearly unreasonable. The response here cannot

plausibly be characterized in that derogatory manner.

To begin, the school reacted promptly to the complaint;

commenced a full-scale investigation; and pursued the investigation

diligently. As the scenario unfolded, school officials paid close

5
Jacqueline's mother, whom Day called, claims not to recall
the school suggesting this "empty rows" alternative. But she does
not affirmatively deny that it was offered. The defendants
proffered documentary evidence (a contemporaneous diary entry by
Scully memorializing Day's proposal) to prove the point. As
against this positive evidence, the plaintiffs' negative evidence
does not suffice to create a genuine issue of material fact for
summary judgment purposes. See I.V. Servs. of Am., Inc. v. Inn
Dev. & Mgmt., Inc., 182 F.3d 51, 55-56 (1st Cir. 1999).

-15-
attention to new information, emerging developments, and the

parents' concerns. Given its inability to corroborate Jacqueline's

allegations and the termination of the police investigation with no

recommendation for further action, the defendants' refusal to

institute disciplinary measures against Briton was reasonable. See

Davis, 526 U.S. at 649 (noting that "it would be entirely

reasonable for a school to refrain from a form of disciplinary

action that would expose it to constitutional or statutory

claims"). Title IX was not intended either to pretermit thoughtful

consideration of students' rights or to demand a gadarene rush to

judgment. After all, in situations involving charges of peer-on-

peer harassment, a public school has obligations not only to the

accuser but also to the accused.

The school's prompt commencement of an extensive

investigation and its offer of suitable remedial measures

distinguish this case from cases in which courts have glimpsed the

potential for a finding of deliberate indifference. See, e.g.,

Vance, 231 F.3d at 262 (concluding that a school could be found

deliberately indifferent in the absence of evidence that it "took

any other action whatsoever" besides talking with the supposed

perpetrator); Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1244,

1247 (10th Cir. 1999) (recognizing potential Title IX liability

when school principal "refused to investigate" an allegation of

-16-
peer-on-peer sexual harassment and neglected to return parent's

telephone calls).

The plaintiffs suggest that the adequacy of the School

Committee's response is undermined by its offer of unsuitable

remedial alternatives.6 They point out that they proposed other

remedial measures, such as the placement of a monitor on

Jacqueline's school bus, which the school rejected. They insist

that an educational institution, acting in good faith, would have

embraced these proposals. The problem, however, is that this line

of argument misconstrues the nature of Title IX liability for peer-

on-peer sexual harassment. As we have said, the statute does not

require an educational institution either to assuage a victim's

parents or to acquiesce in their demands. See Davis, 526 U.S. at

648; see also Porto, 488 F.3d at 73 ("[A] claim that the school

system could or should have done more is insufficient to establish

deliberate indifference.").

6
In particular, the plaintiffs say that one of these proposals
— the offer to place Jacqueline on another bus — was not a suitable
remedial measure because the perpetrator, not the victim, should
have been banished from the original bus. In certain
circumstances, such an observation might have some bite. See,
e.g., Murrell, 186 F.3d at 1247 (finding that school district could
be deliberately indifferent where principal responded to rape
allegations by alleging consensual sex, leaving the accused male
student in school, and suspending the female complainant). Here,
however — where the school was unable to corroborate the occurrence
of any harassment — its decision to change Jacqueline's transit
assignment rather than Briton's can hardly be faulted.

-17-
 The plaintiffs have a fallback position. They say that

the school's investigation, though promptly commenced, was clumsily

executed and that, therefore, its response was clearly

unreasonable. The plaintiffs' premise is correct; an institutional

response to harassment may be carried out so inartfully as to

render it clearly unreasonable. See, e.g., Doe v. Sch. Admin.

Dist. No. 19, 66 F. Supp. 2d 57, 64-65 (D. Me. 1999). But the

plaintiffs' conclusion does not follow. There is no competent

evidence here that the school's investigation was bungled.

In this regard, the plaintiffs' attack seems to be more

cry than wool. They point out that some investigators found

Jacqueline more credible than Briton and that Day may have

overlooked one or two of the pupils who regularly rode the bus in

question. Moreover, they suggest other investigative avenues that

the school might have taken. But investigations involve judgment

calls, and the plaintiffs offer nothing to show that the

investigative choices made by school officials, whether or not

correct in the abstract, were unreasonable. That is vitally

important because, in the last analysis, courts have no roving writ

to second-guess an educational institution's choices from within a

universe of plausible investigative procedures. See Davis, 526

U.S. at 648. For this purpose, a court's proper inquiry is limited

to whether the school's actions were so lax, so misdirected, or so

poorly executed as to be clearly unreasonable under the known

-18-
circumstances. See id. No reasonable juror could find that the

investigation here, though imperfect, was unreasonable either in

its scope or in its execution.

By the same token, the school's actions, apart from the

investigation itself, were within the pale. We have recognized that

if an institution learns that its initial response is inadequate,

it may be required to take further steps to prevent harassment.

Wills, 184 F.3d at 26. Here, however, the school responded

reasonably each time the Fitzgeralds notified it of new

developments. For example, when Scully learned that Jacqueline's

initial version of events had understated the severity of the

situation, he met with her parents immediately in order to discuss

the new allegations. When the parents notified Scully, months

later, that Jacqueline had been distressed while at school, he

promptly disseminated a memorandum to the entire school staff

directing all employees to notify him if they either observed

Jacqueline crying or had occasion to discipline her.

The fact that subsequent interactions between Jacqueline

and Briton occurred does not render the School Committee

deliberately indifferent. To avoid Title IX liability, an

educational institution must act reasonably to prevent future

harassment; it need not succeed in doing so. See Davis, 526 U.S.

at 648 (explaining that a school need not purge itself of peer-on-

peer harassment entirely in order to avoid Title IX liability).

-19-
 That ends this aspect of the matter. Given the facts and

the law, no rational factfinder could supportably conclude that the

School Committee acted with deliberate indifference in this case.

It follows that the district court appropriately granted summary

judgment in favor of the School Committee on the Title IX claim.

III. THE SECTION 1983 CLAIMS

In addition to the claim brought directly under Title IX,

the plaintiffs advanced claims against the School Committee and

Superintendent Dever under 42 U.S.C. § 1983. That statute provides

a right of action for any person who, at the hands of a state actor,

has experienced "the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws" of the United

States. For this purpose, municipal officials are considered to be

state actors. See, e.g., Frazier v. Fairhaven Sch. Comm., 276 F.3d

52, 57-58 (1st Cir. 2002).

In this instance, the plaintiffs seek to use section 1983

to redress deprivations of both a federal statutory right

(implicating Title IX) and a federal constitutional right

(implicating the Equal Protection Clause). At an early stage of the

litigation the district court, ruling from the bench, found these

claims precluded under applicable Supreme Court doctrine. See

Middlesex County Sewer. Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S.

1, 19-21 (1981). Because the court decided this question on a

motion to dismiss, its disposition engenders de novo review. See

-20-
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,

5 (1st Cir. 2005). In conducting this review, we consider the

statutory claims and the constitutional claims separately.

A. The Statutory Claims.

Generally speaking, section 1983 may be used to redress

the deprivation of a right guaranteed by a federal statute. See

Maine v. Thiboutot, 448 U.S. 1, 4 (1980). But that general

proposition is festooned with exceptions. One familiar exception

is that section 1983 cannot be used to enforce a statutory right

when that statute's remedial scheme is sufficiently comprehensive

as to demonstrate Congress's intent to limit the available remedies

to those provided by the statute itself. See Sea Clammers, 453 U.S.

at 20-21. This limitation ensures that plaintiffs cannot circumvent

the idiosyncratic requirements of a particular remedial scheme by

bringing a separate action to enforce the same right under section

1983. See Smith v. Robinson, 468 U.S. 992, 1009 (1984) (finding

section 1983 action precluded when Congress intended plaintiffs to

pursue their claims "through the carefully tailored administrative

and judicial mechanism set out in the statute").

The plaintiffs do not dispute the force of this principle

but, rather, argue that Title IX's remedial scheme is not

sufficiently comprehensive to evince Congress's intent to preclude

section 1983 enforcement actions. They point out that the primary

means of enforcement set out in the statute itself is the

-21-
withholding of federal funds, see 20 U.S.C. § 1682, and they attach

great significance to the fact that this mechanism is rarely used.

Thus, they visualize section 1983 actions as a necessary complement

to the administrative under-enforcement of Title IX rights.

This argument is poorly conceived. One flaw is that

preclusion doctrine is concerned with what Congress intended and

what remedies it deemed appropriate — not with how vigorously others

(including the Executive Branch) may choose to enforce those

remedies. Moreover, taking Executive Branch enforcement into

account would work a de facto delegation of legislative power to the

Department of Education; in effect, the Department would be granted

the power to determine the availability of section 1983 remedies

through the modulation of its enforcement activity. Yet we have not

been directed to any language in Title IX suggesting such a

delegation, and we do not believe that any such language exists.

An even more conspicuous flaw is that the plaintiffs'

argument ignores the availability of a private judicial remedy under

Title IX itself. See Cannon, 441 U.S. at 717. The case at hand is

a paradigmatic example of both the existence and the utility of that

remedy.

The plaintiffs would have us disregard the availability

of this important anodyne because it is judicially implied rather

than discernible on the face of the statute. Although there is

some support for that thesis, see Cmtys. for Equity v. Mich. High

-22-
Sch. Athl. Ass'n, 459 F.3d 676, 690-91 (6th Cir. 2006); Crawford

v. Davis, 109 F.3d 1281, 1284 (8th Cir. 1997), we are not

persuaded that this view is correct.

The test for section 1983 preclusion does not turn on

whether private causes of action under a particular statutory

scheme are explicit or implicit. The dispositive criterion

revolves around congressional intent: Did Congress intend the

remedial scheme under the statute to be exclusive? See Smith, 468

U.S. at 1012; Bruneau v. S. Kortright Cent. Sch. Dist., 163 F.3d

749, 757 (2d Cir. 1998). That intent may be demonstrated either

"by express provision or other specific evidence from the statute

itself." Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418,

423 (1987). That "specific evidence" goes beyond the explicit

provisions of the statute and includes its legislative history.

See Smith, 468 U.S. at 1009; see also Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 285 (1988) (stating that since "Congress

did not expressly create a private right of action under Title IX,

the statutory text does not shed light on Congress' intent with

respect to the scope of available remedies").

Several years ago, the Supreme Court conducted a

thorough review of the legislative history of Title IX and

determined that Congress intended to create a private right of

action. See Cannon, 441 U.S. at 694-703. This is the private

right of action that courts, including this court, have found to

-23-
be implicit in the text of Title IX. See id. at 717; Lipsett v.

Univ. of P.R., 864 F.2d 881, 884 n.3 (1st Cir. 1988). We, like

the majority of the other courts of appeals that have addressed

the issue, believe that this private right of action must be

considered as part of the warp and woof of Title IX's overall

remedial scheme for purposes of preclusion analysis. See Bruneau,

163 F.3d at 757; Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862-

63 (7th Cir. 1996); Pfeiffer v. Marion Ctr. Area Sch. Dist., 917

F.2d 779, 789 (3d Cir. 1990).

That conclusion is of decretory significance here. In

all of the cases in which the Supreme Court has found that section

1983 is available to redress the deprivation of a federal

statutory right, it has emphasized that the underlying statute did

not allow for a private right of action (express or implied). See

City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121-22 (2005)

(collecting cases). By contrast, whenever the underlying statute

contained a private right of action (express or implied), the

Court has deemed that fact to be strong evidence of congressional

intent to preclude parallel actions under section 1983. See id.;

see also Sea Clammers, 453 U.S. at 20-21. Thus, the existence of

a private judicial remedy often has proved to be, in practical

effect, "the dividing line between those cases in which [the Court

has] held that an action would lie under § 1983 and those in which

-24-
[it has] held that it would not." City of Rancho Palos Verdes,

544 U.S. at 121.

The plaintiffs acknowledge that Title IX, as

authoritatively interpreted, confers an implied private right of

action. They note, however, that this right of action is a more

restrictive remedy than that afforded by section 1983. One major

distinction is that, unlike section 1983, Title IX does not supply

a right of action against individual school officials (such as

Superintendent Dever) for monetary relief.

In our view, that distinction makes no difference.

Precedent teaches that a remedial scheme can be considered

comprehensive for purposes of preclusion analysis without

affording a private right of action for monetary relief against

every potential wrongdoer. The key case is Smith, in which the

Supreme Court discerned a comprehensive remedial scheme sufficient

to preclude section 1983 actions despite the total absence of any

private rights of action against individual state actors for

monetary relief. See Smith, 468 U.S. at 1010-11;7 Burlington Sch.

7
We dispose quickly of two straw men. First, the fact that
the plaintiffs in Smith brought a section 1983 action in an effort
to enforce an underlying constitutional right, not a statutory
right, see 468 U.S. at 1007-08, is of no moment. The opinion,
fairly read, stands for the proposition that a remedial scheme can
be deemed comprehensive even when it excludes important claims
against individuals. Second, although Smith's ultimate holding,
dealing with attorneys' fees, has been superseded by statute, see
20 U.S.C. § 1415(l), the Supreme Court has continued to cite the
decision favorably when considering preclusion issues. See, e.g.,
City of Rancho Palos Verdes, 544 U.S. at 121. Consequently, we

-25-
Comm. v. Mass. Dep't of Educ., 471 U.S. 359, 367 (1985)

(describing purpose of Education of the Handicapped Act as the

provision of appropriate education "at public expense") (emphasis

supplied); see also Sea Clammers, 453 U.S. at 6-7 nn.9 & 11

(noting that neither statute provides for any monetary relief

against individual defendants).

Given this precedent, we see no problem in holding

section 1983 actions, including section 1983 actions against

individuals, precluded by Title IX, even though such a holding

would deprive plaintiffs of the right to seek relief against the

individuals alleged to have been responsible for conduct violative

of Title IX. After all, Title IX "amounts essentially to a

contract between the Government and the recipient of funds,"

Gebser, 524 U.S. at 286 (emphasis supplied), and, accordingly, it

makes perfect sense that Congress would aim the weaponry of Title

IX at that recipient — not at the recipient's staff. See Waid, 91

F.3d at 862 ("Congress intended to place the burden of compliance

with civil rights law on educational institutions themselves, not

on the individual officials associated with those institutions.").

Sanctioning section 1983 actions against individual school

officials would permit an end run around this manifest

congressional intent and must, therefore, be deemed precluded.

See Williams, 477 F.3d at 1300.

treat it as an instructive precedent.

-26-
 To sum up, an action against the offending educational

institution itself is what Congress thought appropriate for the

enforcement of Title IX's guarantees. In explicating this private

right of action, the Supreme Court, consistent with its

discernment of Congress's intent, imposed important limits on

liability. These include the requirement, in peer-on-peer sexual

harassment cases, that the educational institution have actual

notice of the harassing conduct. See Gebser, 524 U.S. at 285-86.

It is uncertain whether these circumscriptions would

carry over if section 1983 actions were permitted against

educational institutions and school officials. Either way,

however, such an action would not square with congressional

intent. Were the circumscriptions carried over, a section 1983

action would be redundant; were they not, the availability of the

action would undermine the implied private right of action that

Congress intended. Seen in this light, we think that Title IX's

remedial regime is, to borrow a phrase from the Court,

"incompatible with individual enforcement under § 1983." Blessing

v. Freestone, 520 U.S. 329, 341 (1997).

To say more on this point would be supererogatory. We

conclude that the remedial scheme of Title IX is sufficiently

comprehensive to demonstrate Congress's intention to preclude the

prosecution of counterpart actions against state actors — entities

and individuals alike — under section 1983. Accord Williams, 477

-27-
F.3d at 1299-1300; Bruneau, 163 F.3d at 756; Waid, 91 F.3d at 862-

63; Pfeiffer, 917 F.2d at 789. We therefore uphold the lower

court's ruling that the plaintiffs' Title IX claims, brought under

the mantle of section 1983, are precluded.

B. The Equal Protection Claims.

In addition to precluding section 1983 claims based on

the particular federal statutory regime, a sufficiently

comprehensive remedial scheme also may preclude constitutional

claims that are virtually identical to those that could be brought

under that regime. See Smith, 468 U.S. at 1011 (finding it

"difficult to believe" that Congress intended a section 1983 action

under the Education of the Handicapped Act given the "comprehensive

nature of the procedures and guarantees set out in the [statute]").

Specifically, the Smith Court held that Congress intended the

Education of the Handicapped Act (EHA) to be the "exclusive avenue"

through which the plaintiff could assert due process and equal

protection claims "virtually identical" to their EHA statutory

claims. Id. at 1013.

The parallel to this case is striking: the plaintiffs'

equal protection claim is virtually identical to their claim under

Title IX. And they offer no theory of liability under the Equal

Protection Clause other than the defendants' supposed failure to

take adequate actions to prevent and/or remediate the peer-on-peer

harassment that Jacqueline experienced.

-28-
 This then brings us to the second step in the inquiry:

whether Congress intended these virtually identical constitutional

claims to be precluded by Title IX. Smith, 468 U.S. at 1009. We

conclude that our previous observations on the possibility of

enforcing Title IX through the instrumentality of section 1983

apply with equal force here, notwithstanding the slight differences

in context.

The comprehensiveness of Title IX's remedial scheme —

especially as embodied in its implied private right of action —

indicates that Congress saw Title IX as the sole means of

vindicating the constitutional right to be free from gender

discrimination perpetrated by educational institutions — and that

is true whether suit is brought against the educational institution

itself or the flesh-and-blood decisionmakers who conceived and

carried out the institution's response. It follows that the

plaintiffs' equal protection claims are also precluded.8

We add a coda. Our holding on this point should not be

read to imply that a plaintiff may never bring a constitutionally-

based section 1983 action against an employee of an educational

8
This holding is not in conflict with our decision in Lipsett.
Although we allowed concurrent claims under Title IX and section
1983 (premised on equal protection) to proceed in that case, 864
F.2d at 895-96, the issue of preclusion was never raised.
Therefore, the opinion has no precedential force with respect to
that issue. See Wigginton v. Centracchio, 205 F.3d 504, 511-12
(1st Cir. 2000); Hayduk v. Lanna, 775 F.2d 441, 443 n.1 (1st Cir.
1985).

-29-
institution concurrently with the prosecution of a Title IX action.

For example, when a plaintiff sues an individual who is himself

alleged to be immediately responsible for the injury, such an

action may lie regardless of whether the claim sounds in equal

protection or some other constitutional theory. See, e.g., Delgado

v. Stegall, 367 F.3d 668, 674 (7th Cir. 2004). This is as it

should be: when a plaintiff alleges that an individual defendant is

guilty of committing an independent wrong, separate and apart from

the wrong asserted against the educational institution, a claim

premised on that independent wrong would not be "virtually

identical" to the main claim.

That is not the case here. The plaintiffs have not

named Dever as a defendant based on any independent wrongdoing on

his part but, rather, based on his role as the School Committee's

ultimate decision-maker. See Appellants' Br. at 52-53.

Accordingly, their section 1983 claim against him, like their

section 1983 claim against the School Committee, is precluded by

Title IX's remedial scheme.

IV. CONCLUSION

To summarize succinctly, we take into account the

totality of the circumstances surrounding the alleged harassment,

including events that transpired subsequent to the school-bus

encounters. Seen through that wide-angled lens, the School

Committee's response cannot, as a matter of law, be characterized

-30-
as clearly unreasonable. Thus, the School Committee cannot be held

liable under Title IX for deliberate indifference. We also

conclude that the plaintiffs' claims brought pursuant to section

1983 were properly dismissed on the ground that those claims, as

presented in this case, are precluded by Title IX's comprehensive

remedial scheme.

This is an unfortunate case. If Jacqueline's

allegations are true, she is a victim — but that is not reason

enough to impose on the defendants duties that range beyond the

carefully calibrated boundaries of Title IX. That would be a

decision for Congress, not for the courts. For our part, we need

go no further.

Affirmed.

-31-