UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 95-10323
____________
GRACE FORT, Individually and As Next Friend for
ELIZABETH FORT, A Minor,
Plaintiff-Appellant,
versus
DALLAS INDEPENDENT SCHOOL DISTRICT, ELIZABETH
CUMMINGS and KAREN RAMOS,
Defendant-Appellee.
__________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
(3:94-CV01885)
__________________________________________________
March 11, 1996
Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Grace Fort, individually and as next friend for her daughter
Elizabeth Fort, appeals the district court's order dismissing her
claims under 42 U.S.C. § 1983, and Title IX, 20 U.S.C. §§ 1681-
1688, for failure to state a claim upon which relief may be
granted. We affirm.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
I
Elizabeth Fort, a severely mentally retarded child, was a
special education student at the D. H. Gaston School in Dallas,
Texas. While Elizabeth was attending special education class, a
teacher's aide, who was a student at the school, notified
Elizabeth's teacher that Elizabeth needed to go to the restroom.
Elizabeth's teacher took her to the restroom and left her there
alone. When Elizabeth's teacher returned twenty to thirty minutes
later, she discovered that Elizabeth had been raped. The student
aide who had been assisting in Elizabeth's classroom later
confessed to committing the sexual assault.
Fort filed suit individually and on behalf of her daughter
Elizabeth for injuries resulting from the sexual assault. Fort
sued the Principal, Karen Ramos, and the Special Education
Coordinator of the D.H. Gaston School, Elizabeth Cummings,
individually and in their official capacities as supervisors,
employees, and officials of the Dallas Independent School District
under 42 U.S.C. § 1983. Fort also sued the Dallas Independent
School District (hereinafter "school district") under 42 U.S.C.
§ 1983 and Title IX of the Education Amendments of 1972, 20 U.S.C.
§§ 1681-1688. The defendants filed a FED. R. CIV. P. 12(b)(6)
motion to dismiss the complaint for failure to state a claim upon
which relief could be granted. The district court granted the
defendants' motion, and Fort filed a timely notice of appeal.
II
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Fort argues that the district court erred by granting
defendants' Rule 12(b)(6) motion to dismiss. We can affirm a
dismissal for failure to state a claim only if there are no set of
facts upon which the plaintiff could state a claim for relief.
Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 199 (5th Cir.
1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1361, 131 L. Ed. 2d
218 (1995).
A
To state a claim under § 1983, a plaintiff must allege (1)
that she was deprived of a constitutionally protected interest, and
(2) that the deprivation occurred under color of state law. West
v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d
40 (1988). A plaintiff who alleges that she was deprived of a
liberty or property interest protected by the Fourteenth Amendment,
must allege state action to satisfy the first step under § 1983.
Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir.
1995). The state action requirement of the Fourteenth Amendment
and the color of state law requirement of § 1983 are identical.
Lugar v. Edmondson Oil Co. Inc., 457 U.S. 922, 930, 102 S. Ct.
2744, 2750, 73 L. Ed. 2d 482 (1982). Therefore, in a § 1983 suit
in which the plaintiff alleges that she was deprived of a
constitutional right protected by the Fourteenth Amendment, the
plaintiff must "(1) assert a protected 'liberty or property'
interest and (2) show that they were deprived of that interest
under color of state law." Rains, 66 F.3d at 1406. Only after the
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plaintiff has established these two prerequisites do we decide
which state actors, beyond the immediate perpetrator, are
responsible for the constitutional violation. Id. at 1407.
In determining whether a deprivation occurs under color of
state law, we look for a 'real nexus' between the activity out of
which the violation occurred and the employee's duties and
obligations as an employee. Rains, 66 F.3d at 1407; see Doe v.
Taylor Indep. Sch. Dist., 15 F.3d 443, 452 n.4 (5th Cir.) (stating
that color of state law requirement was satisfied where coach used
his state power and status as student's coach and teacher to
manipulate and sexually abuse her), cert. denied, Lankford v. Doe,
___ U.S. ___, 115 S. Ct. 70, 130 L. Ed. 2d 25 (1994). Recently, we
held that a sheriff's rape of a suspect occurred under color of
state law because his "actions were an abuse of power held uniquely
because of a state position, and the explicit invocation of
governmental authority constituted a 'real nexus' between the
duties of Sheriff and the rape." Bennett v. Pippin, 1996 WL 26785,
*9 (Jan. 24, 1996) (citation omitted).1
To establish the first element of her § 1983 claim, Fort
alleges that Elizabeth was deprived of her Fourteenth Amendment
right to bodily integrity. See Taylor, 15 F.3d at 445
1
The sheriff in Bennett had gone to the plaintiff's residence
ostensibly to investigate a shooting in which she was a suspect. Before going
to the residence, he had used his authority as sheriff to ensure that the
plaintiff's husband would not be returning home that evening. The sheriff
questioned the plaintiff about the shooting for thirty to forty-five minutes
before the rape occurred. When the plaintiff refused the sheriff's request for
sex, he replied, "I can do what I want, I'm the Sheriff." Id.
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("schoolchildren do have a liberty interest in their bodily
integrity that is protected by the Due Process Clause of the
Fourteenth Amendment and that physical sexual abuse by a school
employee violates that right"). Fort alleges that Elizabeth was
deprived of this liberty interest under color of state law because
the rapist was performing the function of an employee of the school
at the time of the rape. Fort alleges that the defendants
inadequately investigate and supervise the student aides,
constituting deliberate indifference towards Elizabeth's
substantive due process rights.
Fort's § 1983 claim fails because the pleadings do not
establish that Elizabeth's Fourteenth Amendment rights were
violated under color of state law. Unlike the sheriff in Bennett,
the student aide did not use the authority of his position when he
raped Elizabeth. The student aide's only duties were to assist
inside the classroom. When the student aide notified the teacher
that Elizabeth needed to use the restroom, the teacher took her
there, not the student aide. The student aide's presence in the
bathroom with Elizabeth was not authorized by the defendants. He
went there on his own volition with his own agenda, not to fulfill
his duties as a student aide. There is no nexus between the
student's duties as an aide and his rape of Elizabeth; therefore,
Fort has failed to allege a constitutional violation or to satisfy
the color of state law requirement of § 1983.
Fort alleges, in the alternative, that even if the student
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aide was not acting under color of state law, the defendants are
liable under § 1983 under the state-created danger theory. This
theory imposes § 1983 liability when state actors "created the
plaintiffs' peril, increased their risk of harm, or acted to render
them more vulnerable to danger." Johnson, 38 F.3d at 200.
Although the Fifth Circuit has never predicated relief on this
theory, we have noted that in order to state a claim under the
state-created danger theory the plaintiff must prove (1) that the
environment created by the state actors was dangerous; (2) that the
actors knew it was dangerous; and (3) that the actors used their
authority to create an opportunity that would not otherwise have
existed for the third party's crime to occur. Id. at 201.
Without deciding whether the state-created danger theory is
constitutionally sound, we hold that the pleadings in this case do
not meet the requirements for stating a claim under this theory.
Fort alleges that the defendants created a dangerous environment at
the school by failing to adequately investigate and supervise the
student aides. However, Fort does not allege that the defendants
knew that the school environment was dangerous. At most, Fort
alleges that the defendants were negligent in not adequately
investigating and supervising their student aides, creating a
dangerous environment. This allegation is insufficient to state a
claim for relief under the state-created danger theory. Id.
Because the pleadings in this case fail to establish that
Elizabeth was deprived of a constitutional right under color of
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state law or that there was a state-created danger, the district
court did not err by granting the defendants' motion to dismiss
Fort's § 1983 claims.
B
Fort further contends that the district court erred in
dismissing her Title IX claim against the school district. Title
IX prohibits discrimination of the basis of sex in "any education
program or activity receiving Federal financial assistance." 20
U.S.C. § 1681(a).2 Title IX discrimination includes situations
where "a teacher sexually harasses and abuses a student." Franklin
v. Gwinnett County Pub. Sch., 503 U.S. 60, ___, 112 S. Ct. 1028,
1037, 117 L. Ed. 2d 208 (1992). Only institutions, not
individuals, can be sued under Title IX. Cannon v. University of
Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979);
Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir.
1988). Therefore, to establish a claim under Title IX, the
plaintiff must establish that an educational institution receiving
federal assistance intentionally discriminated on the basis of the
plaintiff's sex.3 Chance v. Rice Univ., 984 F.2d 151, 153 (5th
2
Section 1681(a) states that "No person in the United States, shall,
on the basis of sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education program or activity
receiving Federal financial assistance." 20 U.S.C. § 1681(a).
3
We note that the circuits are split as to whether proof of disparate
impact, instead of discriminatory intent, is sufficient to prove discrimination
under Title IX. Compare Mabry v. State Bd. of Community Colleges and
Occupational Educ., 813 F.2d 311, 316 n.6 (10th Cir.) (stating that proof of
disparate impact should be sufficient to establish discrimination under Title
IX), cert. denied, 484 U.S. 849, 108 S. Ct. 148, 98 L. Ed. 2d 104 (1987) with
Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993) (holding that Title VI's
intentional discrimination standard was the appropriate vehicle for analyzing a
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Cir. 1993); Cannon v. University of Chicago, 648 F.2d 1104, 1109
(7th Cir.), cert. denied, 454 U.S. 1128, 102 S. Ct. 981, 71 L. Ed.
2d 117 (1981).
We are not aware of any precedent establishing that an
educational institution can be liable under Title IX for a single
act of student-to-student sexual assault. Although district courts
have held that inaction by a school district in the face of
numerous complaints about student-to-student sexual harassment is
actionable under Title IX, Oona R.-S. by Kate S. v. Santa Rosa City
Sch., 890 F. Supp. 1452, 1469 (N.D. Cal. 1995); Doe v. Petaluma
City Sch. Dist., 830 F. Supp. 1560, 1576 (N.D. Cal. 1993), we are
not aware of any cases that have found Title IX liability when
Title IX claim); Pfeiffer v. School Bd. for Marion Ctr. Area, 917 F.2d 779, 788
(3d Cir. 1990) (stating that proof of discriminatory intent instead of
discriminatory effect is probably what is required under Title IX); Cannon v.
University of Chicago, 648 F.2d 1104, 1109 (7th Cir.) (holding that proof of
disparate impact is not enough to establish discrimination under Title IX), cert.
denied, 454 U.S. 1128, 102 S. Ct. 981, 71 L. Ed. 2d 117 (1981).
The dispute over Title IX's intent requirement centers on whether Title VI
or Title VII is the more appropriate analogy for Title IX. Title IX was
patterned on Title VI of the Civil Rights Act of 1964 when it was enacted, Cannon
v. University of Chicago, 441 U.S. 677, 694-96, 99 S. Ct. 1946, 1956-57, 60 L.
Ed. 2d 560 (1979). However, many courts have also looked to Title VII case law
in interpreting Title IX. See Mabry, 813 F.2d at 316 (applying Title VII
standards to Title IX claim). But see Chance, 984 F.2d at 153 (holding that
Title VI standards, not Title VII, should be applied to Title IX claims). While
a plaintiff must prove intentional discrimination to recover monetary damages
under Title VI, Guardians Ass'n v. Civil Serv. Com'n of N.Y. City, 463 U.S. 582,
103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983), proof of disparate impact will
establish discrimination under Title VII. Dothard v. Rawlinson, 433 U.S. 321,
97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977). Therefore, courts have required or not
required proof of discriminatory intent in Title IX cases, based on whether they
believe Title VI or Title VII is the more appropriate vehicle for analyzing Title
IX claims.
The Supreme Court's most recent Title IX decision did not resolve the
debate over the intent requirement. In holding that monetary damages are
available under Title IX for intentional discrimination, the Court relied on a
Title VII case, see Franklin, ___ U.S. at ___, 112 S. Ct. at 1037 (citing Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986)),
even though the Court had previously stated that the drafters of Title IX
explicitly intended for Title IX to be interpreted as Title VI had been. Cannon,
441 U.S. at 696, 99 S. Ct. at 1957.
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there has been a single unprecedented act of violence against a
student.
The problem with establishing institutional liability in the
context of this case, is the requirement of proving intentional
discrimination by the school district. A school district's
inaction toward a student's complaints of sexual discrimination or
the district's failure to adequately remedy the problem may
demonstrate intentional discrimination by the school district.
Petaluma, 830 F. Supp. at 1576; Oona, 890 F. Supp. at 1469; see
also R.L.R. v. Prague Pub. Sch. Dist. I-103, 838 F. Supp. 1526,
1534 (W.D. Okl. 1993) (dismissing Title IX claim for failure to
establish discriminatory intent through "facts showing the custom
or policy, acquiescence in, conscious disregard of, or failure to
investigate or discipline on the part of the School District or any
named defendant"). However, when the underlying sexual
discrimination consists of a single violent crime, there will
rarely, if ever, be a basis for arguing that the school district
engaged in intentional sexual discrimination, because there is
often no warning that such crime will take place. Fort does not
allege that there had ever been any complaints about this student
aide or any of the student aides to which the school district
failed to adequately respond. Fort argues that the school
district's custom of inadequately investigating and supervising the
teachers' aides created a dangerous environment in which this type
of assault could happen; however, such an allegation does not
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establish intentional sexual discrimination by the school district.
Because Fort fails to establish that the school district
engaged in intentional sexual discrimination, the district court
did not err in granting the defendants' motion to dismiss Fort's
Title IX claims.
IV
For the foregoing reasons, we AFFIRM the district court's
order dismissing Fort's 42 U.S.C. § 1983 and Title IX claims.
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