concurring in the court’s judgment.
With respect to the dismissal of the § 1983 claims, it does not seem to me that the plaintiffs have alleged a deprivation of “liberty” as that term is used in the Constitution. If there was no deprivation of liberty here, I do not believe that there was any violation of the Constitution — whether or not the behavior attributed to Mr. Leventhal was sufficiently gross to shock the judicial conscience.
The Supreme Court no longer sanctions use of the “shocks the conscience” test to analyze claims of excessive use of force. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Although the Supreme Court apparently assumes that this rather fuzzy test has some continuing role, see Collins v. City of Harker Heights, Texas, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), and subsequent to Graham v. Connor a number of courts of appeals, including this one, have applied the test in a variety of other contexts, I see no reason for us to do so here.
But whether the dismissal of the § 1983 claims is upheld on the ground I have suggested or on the ground that the conduct attributed to Mr. Leventhal does not shock the conscience — and I agree, if this is the test, that the alleged conduct does not reach a conscience-shocking level — I see no reason to decide whether the dismissal could also be upheld under the National Sea Clammers doctrine. Perhaps the Third Circuit is wrong in holding that constitutional claims under § 1983 are “subsumed” in Title IX of the Education Amendments of 1972, but it is not necessary for us to reach that issue in the case before us. I would refrain from doing so.
With respect to the issues addressed in Parts IIC and IID of the court’s opinion, I agree both with the conclusion that the judgment of the district court should be affirmed and with the reasoning on which that conclusion rests.
With respect to the granting of summary judgment against plaintiffs Andrea Lillard and Julie McCarter on their Title IX claims, I was originally inclined to affirm insofar as Superintendent Anderson and Principal Chism are concerned — not on statute of limitations grounds, but because I do not believe that Title IX can appropriately be read as subjecting anyone other than educational institutions to liability for violation of its terms. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988) (“the separate liability of the supervisory officials at the University must be established, if at all, under § 1983, rather than under Title IX”); Clay v. Board of Trustees of Neosho County Community College, 905 F.Supp. 1488, 1495 (D.Kan.1995) (“Title IX actions may only be brought against an educational institution, not an individual acting as an administrator or employee for the institution”); Doe v. Methacton Sch. Dist., 1995 WL 549089, at *1 (E.D.Pa. Sept. 12, 1995) (“courts which have addressed the issue have held that only institutions, not individuals, may be liable under Title IX”); Bowers v. Baylor Univ., 862 F.Supp. 142, 145 (W.D.Tex.1994); and Doe v. Petaluma City Sch. Dist., 830 F.Supp. 1560, 1576 (N.D.Cal.1993) (“individuals may not be held personally liable under Title IX”), rev’d on other grounds, 54 F.3d 1447 (9th Cir.1995). Because this issue has not been briefed or argued here, however, and because other claims remain pending against the superintendent and the principal, I do not dissent from the court’s decision to let the Title IX issue be decided in the first instance by the district court.