United States Court of Appeals
For the First Circuit
No. 10-1449
JERALINE SANTIAGO,
AS NEXT FRIEND OF HER MINOR SON,
Plaintiff, Appellant,
v.
COMMONWEALTH OF PUERTO RICO ET AL.,
Defendants, Appellees.
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Thompson, Selya and Dyk*, Circuit Judges.
Alfredo Fernández, Carolina Santa Cruz, Elias Correa Menéndez
and Delgado & Fernández, LLP on brief for appellant.
Jose R. Olmo-Rodriguez on brief for appellees Cotto and Oyola.
Angel E. Rotger-Sabat and Maymi, Rivera & Rotger, P.S.C. on
brief for appellee Commonwealth of Puerto Rico.
August 24, 2011
*
Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. This appeal grows out of a lurid
allegation that a bus driver assigned to transport special
education students to and from a public school sexually abused one
of his charges. It presents important questions concerning the
parameters of the "under color of state law" requirement of 42
U.S.C. § 1983 and the "actual knowledge" requirement of Title IX of
the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688.
After a dizzying array of procedural twists and turns,
the district court resolved these questions in favor of the
defendants and brought the action to a close. The plaintiff
appeals. Although our reasoning differs in certain respects from
that of the court below, we affirm.
I. BACKGROUND
During the fall of 2003, a six-year-old boy, whom we
shall call "Jherald," was enrolled at a public school in Bayamón,
Puerto Rico.1 This school is administered by the Commonwealth of
Puerto Rico through its Department of Education (the Department).
Jherald was born with a profound bilateral hearing impairment and,
as required by the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §§ 1400-1482, receives a variety of educational
support services free of cost. As part of this mix and as required
by the terms of Jherald's individualized education program (IEP),
1
The appellate briefs refer to the minor by his initials:
"J.A.A.S." But the pleadings and the parties' briefs before the
district court, none of which are under seal, are more forthcoming.
-2-
see id. § 1414(d), the Department, at the times relevant hereto,
furnished him with daily transportation to and from school.
The Department receives federal funding to assist it in
meeting its responsibilities to students with disabilities who,
like Jherald, are under its supervision. It uses these funds, in
part, to pay for the transportation of such students. For the
2003-2004 academic year, the Department entered into a contract
with Guillermo Cotto and Luz Oyola, the proprietors of a bus
company, to furnish services of this nature. In turn, Cotto and
Oyola hired the needed drivers, including one Freddy Márquez.
Márquez regularly drove the vehicle (owned by the bus company) that
transported Jherald to and from school.
On or about October 15, 2003, Jherald appeared visibly
nervous when he returned home from school. His mother, plaintiff-
appellant Jeraline Santiago, asked him what had happened. Jherald
proceeded to describe in disturbing detail the alleged sexual
abuse.2
The next morning, Jeraline went to the school and told
Jherald's teacher about her son's accusation. The teacher referred
her to a school social worker. The two spoke but Jeraline,
2
The record contains Jherald's deposition testimony
indicating that Márquez had sexually abused him on other occasions.
Because these claims do not appear in the complaint and because
there is no evidence that any of these supposed assaults were
reported prior to the October 2003 incident, they are not material
to the issues on appeal.
-3-
frustrated by what she perceived as the social worker's failure to
take the matter seriously, later tried unsuccessfully to contact
the school principal. At some point, Jeraline removed Jherald from
the school.
On May 7, 2008, Jeraline sued on behalf of her minor son.
Her complaint included a claim under 42 U.S.C. § 1983 against
Cotto, Oyola, and their jointly owned bus company (collectively,
the private defendants), a Title IX claim against the Commonwealth,
and a smorgasbord of claims under local law. From that point
forward, the case took a series of unusual twists and turns. We
mention only those events that pertain to the issues on appeal.
Following the completion of pretrial discovery, the
private defendants moved for summary judgment. The plaintiff
opposed the motion, and the district court denied it. At the same
time, however, the court ordered the plaintiff to show cause why
summary judgment should not be granted on the section 1983 claim.
Santiago v. Puerto Rico (Santiago I), No. 08-cv-01533, 2009 WL
3878286, at *3-4 (D.P.R. Nov. 12, 2009). The court also dismissed,
sua sponte, the plaintiff's federal claims against the
Commonwealth. Id. at *4.
Both the plaintiff and the private defendants sought
reconsideration, and the plaintiff served a response to the show-
cause order. The district court acted on these submissions as a
unit. It concluded that the private defendants were not state
-4-
actors and, therefore, granted summary judgment in their favor on
the section 1983 claim. Santiago v. Puerto Rico (Santiago II), No.
08-cv-01533, 2009 WL 4921612, at *2 (D.P.R. Dec. 10, 2009). The
court simultaneously reinstated the plaintiff's Title IX claim,
expressing a tentative belief that the complaint (by then amended)
stated a Title IX claim against the Commonwealth upon which relief
could be granted. Id.
This time, it was the Commonwealth that moved for
reconsideration. The plaintiff objected, insisting that the
Commonwealth should not be allowed to raise new arguments in a
reconsideration motion. The plaintiff added that, in all events,
the motion should be treated under the standards applicable to
motions brought pursuant to Federal Rule of Civil Procedure
12(b)(6) and, so treated, should be denied.
The district court granted the motion to reconsider. It
explained that, because it originally dismissed the Title IX claim
sua sponte, the Commonwealth had not waived any grounds for
dismissal. Santiago v. Puerto Rico (Santiago III), No. 08-cv-
01533, 2010 WL 500401, at *1 (D.P.R. Feb. 5, 2010). The court
proceeded to evaluate the (previously reinstated) Title IX claim
under Rule 12(b)(6) and dismissed it. Id. at *1-2 & n.2. It then
dismissed the local law claims without prejudice, see 28 U.S.C.
§ 1367(c), and entered a final judgment.
-5-
This timely appeal ensued. In it, the plaintiff
challenges both the order for summary judgment on the section 1983
claim against the private defendants and the order dismissing the
Title IX claim against the Commonwealth.
II. DISCUSSION
We divide our substantive discussion into two parts,
corresponding to the plaintiff's dual assignments of error.
A. Section 1983.
To put the lower court's section 1983 ruling in
perspective, we must first iron out a procedural wrinkle. The
court's entry of summary judgment on this claim followed a motion
to reconsider an earlier order. We normally review a district
court's decision to grant or deny a motion for reconsideration for
abuse of discretion. See, e.g., Bennett v. Saint-Gobain Corp., 507
F.3d 23, 34 (1st Cir. 2007). Here, however, the parties' arguments
were directed to the underlying substantive issue (the propriety
vel non of summary judgment) rather than the procedural issue (the
desirability vel non of reconsideration). Consequently, the
summary judgment standard applies in connection with our review of
this ruling. See Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76,
81-82 & n.6 (1st Cir. 2008).
We review the entry of summary judgment de novo. Foote
v. Town of Bedford, 642 F.3d 80, 82 (1st Cir. 2011). In that
exercise, we take the facts, along with all reasonable inferences
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therefrom, in the light most favorable to the nonmoving party.
Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st
Cir. 1999). We will affirm only if the record, so viewed,
discloses that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c)(2).
For this purpose, an issue is "genuine" if the record
allows a rational factfinder to resolve it in favor of either
party. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4
(1st Cir. 2010). A fact is "material" only "if its existence or
nonexistence has the potential to change the outcome of the suit."
Id. at 5.
The legal framework pertaining to a section 1983 claim is
well established. "Section 1983 supplies a private right of action
against a person who, under color of state law, deprives another of
rights secured by the Constitution or by federal law." Redondo-
Borges v. U.S. Dep't of HUD, 421 F.3d 1, 7 (1st Cir. 2005) (quoting
Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996)). To make out
a viable section 1983 claim, a plaintiff must show both that the
conduct complained of transpired under color of state law and that
a deprivation of federally secured rights ensued. See id. We
focus here on the "under color of state law" requirement.
Section 1983's "under color of state law" requirement is
the functional equivalent of the Fourteenth Amendment's "state
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action" requirement. See United States v. Price, 383 U.S. 787, 794
n.7 (1966); Perkins v. Londonderry Basketball Club, 196 F.3d 13, 17
n.1 (1st Cir. 1999). Accordingly, we regard case law dealing with
either of these formulations as authoritative with respect to the
other, and we use the terminologies interchangeably.
Only the private defendants have been sued under section
1983. If their conduct cannot be classified as state action, the
claim against them must fail.3 See Rendell-Baker v. Kohn, 457 U.S.
830, 838 (1982).
Cotto, Oyola, and the company that they own are without
question private parties. The mere fact that they entered into a
contract with the Department to transport public school students
does not alter their status. See id. at 840-41. In some
circumstances, however, the conduct of private parties may be
"fairly attributable to the State," Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982), and therefore may constitute action under
color of state law.
The Supreme Court has observed that "[o]nly by sifting
facts and weighing circumstances can the nonobvious involvement of
the State in private conduct be attributed its true significance."
Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961).
3
Because the plaintiff's section 1983 claim is directed
exclusively against the private defendants, we find unhelpful her
citation to case law evaluating whether there exists a "special
custodial relationship" between the state and an individual who is
subjected to a violation of rights.
-8-
Consistent with this fact-specific approach, this court has
identified three ways in which a private entity may be deemed a
state actor. A private party may become a state actor if he
assumes a traditional public function when performing the
challenged conduct; or if the challenged conduct is coerced or
significantly encouraged by the state; or if the state has "so far
insinuated itself into a position of interdependence with the
[private party] that it was a joint participant in [the challenged
activity]." Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412
F.3d 1, 5 (1st Cir. 2005) (alterations in original); see Alberto
San, Inc. v. Consejo de Titulares del Condominio San Alberto, 522
F.3d 1, 4 (1st Cir. 2008). If the facts, viewed most hospitably to
the plaintiff, make out a jury question as to any one of these
alternatives — the public function test, the state compulsion test,
or the nexus/joint action test — the "under color of state law"
requirement is satisfied for summary judgment purposes.
The plaintiff's "state action" argument spans all three
of these avenues. Her main emphasis, however, is on the public
function test. She posits that the private defendants assumed a
traditional state responsibility by providing home-to-school-to-
home transportation for public school students with disabilities.
We do not agree.
For purposes of section 1983, Puerto Rico is the
functional equivalent of a state. See Martinez v. Colon, 54 F.3d
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980, 984 (1st Cir. 1995). Under the public function test, state
action inheres "in the exercise by a private entity of powers
traditionally exclusively reserved to the State." Jackson v.
Metro. Edison Co., 419 U.S. 345, 352 (1974) (emphasis supplied).
Exclusivity is an important qualifier, and its presence severely
limits the range of eligible activities. See Rendell-Baker, 457
U.S. at 842 ("That a private entity performs a function which
serves the public does not make its acts state action."). The
narrowness of this range is no accident. The public function test
has a specific, targeted purpose: it is meant to counteract a
state's efforts to evade responsibility by delegating core
functions to private parties. Perkins, 196 F.3d at 18-19.
Not surprisingly, the activities that have been held to
fall within the state's exclusive preserve for purposes of the
public function test are few and far between. They include "the
administration of elections, the operation of a company town,
eminent domain, peremptory challenges in jury selection, and, in at
least limited circumstances, the operation of a municipal park."
Id. at 19 (quoting United Auto Workers v. Gaston Festivals, Inc.,
43 F.3d 902, 907 (4th Cir. 1995)). These activities are
characterized by exclusivity born of pervasive government
involvement, and that multi-dimensional characteristic informs the
whole of the public function category.
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We find particularly instructive the Supreme Court's
opinion in Rendell-Baker. Confronted with a situation analogous to
the one here, the Court held that a private institution paid by a
state to educate maladjusted high school students was not a state
actor. 457 U.S. at 842. In reaching this conclusion, the Court
noted that the state had only recently begun providing education
for students who could not be served by traditional public schools,
and therefore alternative education was not historically within the
exclusive purview of the state. We have taken this reasoning to
its logical conclusion and determined that education in general is
not an exclusive public function because it has long been
undertaken by private institutions. See, e.g., Logiodice v. Trs.
of Me. Cent. Inst., 296 F.3d 22, 26-27 (1st Cir. 2002).
Viewed in this light, the plaintiff's argument falters.
If the education of children does not itself fall within the narrow
range of exclusive state functions, it is hard to imagine how a
service ancillary to education, such as the transportation of
students, would qualify. Cf. Perkins, 196 F.3d at 19 (making
similar observation with respect to organization of youth sports).
As every school child knows, the greater includes the lesser.4
4
Although we reaffirm that providing schooling is not an
exclusively public function, our opinion should not be read as
equating contracting out school operation itself with contracting
out school busing for state action purposes. Contracting out
school operation itself could, in certain circumstances, create
difficult state action issues, see Logiodice, 296 F.3d at 29-30,
particularly if the contract is a sham arrangement designed to
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We are not the first court to reach the conclusion that
transportation to and from school is not an exclusive state
function. Considering strikingly similar facts, the Third Circuit
found that a private bus company and its employees were not subject
to liability under section 1983 even though, by transporting pupils
to and from public schools, they "were carrying out a state program
at state expense." Black ex rel. Black v. Ind. Area Sch. Dist.,
985 F.2d 707, 710-11 (3d Cir. 1993). The private defendants were
not state actors, the court wrote, because "they were not
performing a function that has been 'traditionally the exclusive
prerogative of the state.'" Id. at 711.
The plaintiff labors to distinguish Black on the ground
that it involved "regular" public school students, not special
education students who have a statutory entitlement under the IDEA
to receive supplemental education-related services.5 This argument
seemingly derives from the Supreme Court's decision in West v.
Atkins, 487 U.S. 42 (1988). There, the Court determined that a
private physician, retained by the state to provide medical care to
prison inmates, was a state actor. Id. at 54-57. This
determination rested largely on the premise that, by incarcerating
allow the state to avoid its constitutional duties, see Rendell-
Baker, 457 U.S. at 842 n.7.
5
This argument is necessarily a statutory one, as the Supreme
Court has rejected any notion that the Constitution requires a
state to provide public education. See San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
-12-
prisoners, the state (which was obligated to provide them with
medical care) had curbed the prisoners' ability to seek care
elsewhere. Id. at 55. The state's foreclosure of other options
grounded the necessary finding of exclusivity.
The distinction etched by the plaintiff makes no
difference. The relevant inquiry looks to the nature of the
service provided, not its beneficiary. Just as education is not
exclusively a state function because it is regularly performed by
private entities, see Logiodice, 296 F.3d at 26-27, so too student
transportation falls outside the exclusive purview of the state.
Indeed, it is widely believed that the first school bus was
commissioned by a private Quaker school, and today nearly half of
all K-12 students are transported to school at private expense,
see P. Teske et al., Drivers of Choice: Parents, Transportation,
and School Choice, at 9 (2009).
We note, moreover, that even if Jherald had a statutory
right to round-trip school transportation, the state did not
preclude him from choosing another means of traveling to school.
This case is thus distinguishable from West, where the state closed
off all avenues for a prisoner to exercise his right to medical
care other than through a doctor retained by the state. Here, by
contrast, Jherald's mother had several options for transporting her
son to school. She could, for example, have driven him to school,
participated in a car pool, or used public transportation. This
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freedom to choose alternatives removes school busing from the realm
of services that are traditionally exclusively reserved to the
state. See Black, 985 F.2d at 714.
As a fallback, the plaintiff attempts to navigate both of
the other routes by which a private party can be transmogrified
into a state actor. We briefly explain why, on the facts at hand,
neither route leads her to the promised land.
First, the plaintiff's contention that the private
defendants "functioned within the Commonwealth's system of federal
compliance" constitutes an attempt to trigger the state compulsion
test. But to establish state action under that test, a plaintiff
must demonstrate a particularly close tie between the state and the
private party's conduct, such that the conduct may fairly be
regarded as state action. Jackson, 419 U.S. at 351. "This inquiry
is a targeted one, with the challenged conduct at the hub of the
analytical wheel." Perkins, 196 F.3d at 19. Even the rights-
depriving conduct of an extensively regulated private party does
not amount to action under color of state law unless the conduct
itself is compelled (or, at least, heavily influenced) by a state
regulation. See Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982);
Rendell-Baker, 457 U.S. at 840-41.
Here, the rights-depriving conduct is Márquez's alleged
molestation coupled with the bus company's failure properly to
screen and train its employees. No state regulation compelled (or
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even encouraged) either Márquez's or the bus company's actions.
The state compulsion test requires more than the taking of action
against a backdrop of applicable state regulations. Because there
is no showing that the Commonwealth exercised coercive power over
or significantly encouraged either the abuse to which Jherald was
allegedly subjected or the bus company's failure properly to screen
and train its employees, the state compulsion test is not
satisfied. See Estades-Negroni, 412 F.3d at 5.
The plaintiff's effort to embrace the third state action
theory fares no better. To pass this test, a plaintiff must show
that the private party's actions are attributable to the state
through a symbiotic relationship6 between the two. See id. at 6.
The requisite nexus is premised on a showing of mutual
interdependence. See Burton, 365 U.S. at 723-25; Ponce v.
Basketball Fed'n of P.R., 760 F.2d 375, 381 (1st Cir. 1985). The
"most salient" factor in this determination "is the extent to which
the private entity is (or is not) independent in the conduct of its
day-to-day affairs." Perkins, 196 F.3d at 21. A private party's
use of public facilities may weigh in the balance. See Burton, 365
U.S. at 723. So, too, may the state's sharing of profits generated
from the private party's rights-depriving conduct. See Barrios-
6
Our cases sometimes refer to the "nexus/joint action test"
as the "symbiotic relationship test." See, e.g., Perkins, 196 F.3d
at 18. Whatever the nomenclature, the test remains the same.
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Velázquez v. Asociacion de Empleados del Estado Libre Asociado, 84
F.3d 487, 494 (1st Cir. 1996).
In advancing her nexus/joint action theory, the plaintiff
stresses that the IDEA requires that the Commonwealth retain
ultimate responsibility for the provision of education and
ancillary services to students with disabilities. That is true as
far as it goes, see, e.g., 20 U.S.C. § 1400(c)(6), but it does not
take the plaintiff very far. There is nothing in the record to
indicate that this retained responsibility caused the Commonwealth
to insinuate itself into the day-to-day operations of the bus
company. The record is equally barren of any indication that the
private defendants enjoyed special access to public facilities,
used publicly owned equipment, or shared profits earned under the
transportation contract with the Commonwealth. For aught that
appears, the relationship between the private defendants and the
Commonwealth was merely that of contracting parties operating at
arm's length. On this record, it cannot plausibly be said that the
private defendants and the Commonwealth were so entangled as to
render the private defendants state actors.
In a final foray that interweaves doctrinal strands, the
plaintiff dwells upon the Department's payment of federal funds to
the private defendants. But this linkage will not support the
weight that the plaintiff places on it. A private party cannot be
transformed into a state actor simply because it is paid with
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government funds for providing a service. See Rendell-Baker, 457
U.S. at 840-41; Black, 985 F.2d at 710.
That ends this aspect of the matter. Because no rational
factfinder could conclude that the private defendants acted under
color of state law, we uphold the district court's entry of summary
judgment on the section 1983 claim.7
B. Title IX.
We turn now to the plaintiff's Title IX claim against the
Commonwealth. The district court initially dismissed this claim
sua sponte. By its very nature, a sua sponte dismissal engenders
especially rigorous appellate review. See Chute v. Walker, 281
F.3d 314, 319 (1st Cir. 2002); González-González v. United States,
257 F.3d 31, 36-37 (1st Cir. 2001). Here, however, the district
court revisited the matter, reinstated the Title IX claim, and
agreed to reconsider it. See Santiago II, 2009 WL 4921612, at *2.
It was only upon reconsideration, after briefing and argument, that
the court brought the matter full circle and again dismissed the
claim. See Santiago III, 2010 WL 500401, at *1-2.
This irregular sequence of events makes it pellucid that
the plaintiff had a full and fair opportunity to muster her
arguments in opposition to dismissal and present them to the court.
7
Given the absence of any action under color of state law by
the private defendants, see text supra, we do not need to reach the
question of whether the plaintiff has adequately alleged the second
element of a section 1983 claim.
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Consequently, we see no unfairness in reviewing the ensuing order
as a conventional dismissal for failure to state a claim. Indeed,
this is the very mode of review that the plaintiff has sought.
We review de novo an order granting or denying a Rule
12(b)(6) motion to dismiss for failure to state a claim upon which
relief can be granted. Artuso v. Vertex Pharm., Inc., 637 F.3d 1,
5 (1st Cir. 2011). In conducting that review, we accept as true
all well-pleaded facts alleged in the complaint and draw all
reasonable inferences therefrom in the pleader's favor. SEC v.
Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (en banc). "We are not
wedded to the lower court's rationale, but may affirm the order of
dismissal on any ground made manifest by the record." Román-Cancel
v. United States, 613 F.3d 37, 41 (1st Cir. 2010).
As a general matter — there are exceptions not relevant
here — a complaint must contain no more than "a short and plain
statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). It need not set out "detailed
factual allegations." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). But gauzy generalities will not suffice; "a complaint
must contain sufficient factual matter, accepted as true, to 'state
a claim to relief that is plausible on its face.'" Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at
570). "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
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inference that the defendant is liable for the misconduct alleged."
Id. "If the factual allegations in the complaint are too meager,
vague, or conclusory to remove the possibility of relief from the
realm of mere conjecture, the complaint is open to dismissal."
Tambone, 597 F.3d at 442.
Against this mise-en-scène, we repair to Title IX. The
statute provides in pertinent 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). It expressly confers an
administrative means of enforcement, see id. § 1682, and impliedly
confers a private right of action, see Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 283-84 (1998). This implied private
right of action allows an aggrieved party to seek money damages
against an educational institution8 that receives federal funds but
not against individuals who merely work for such an institution.
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir. 2002).
8
The proper institutional defendant here is the Department,
which receives federal funds to help provide education-related
services to students with disabilities. See, e.g., Davis ex rel.
LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 641 (1999).
The parties disagree about whether the plaintiff has sued the
Department as opposed to the Commonwealth. Because the Title IX
claim fails on other grounds, we assume arguendo that the plaintiff
has joined the proper defendant.
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Two types of harassment are actionable under Title IX:
quid pro quo harassment and hostile environment harassment. Id.
Because quid pro quo harassment is not implicated here, we limit
our discussion to hostile environment harassment.
In general, a hostile environment claim under Title IX
requires acts of sexual harassment that are so severe and pervasive
as to interfere with the educational opportunities normally
available to students. Id. To limn such a claim, the plaintiff
must identify "a cognizable basis for institutional liability."
Id. at 66. This necessitates a showing that a federal funding
recipient acted with deliberate indifference toward known acts of
harassment occurring in its programs or activities. Davis ex. rel
LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 641-43
(1999); Gebser, 524 U.S. at 290-91.
The deliberate indifference standard has considerable
bite. It demands that a funding recipient be shown to have had
actual knowledge of the harassment. Davis, 526 U.S. at 642; Wills
v. Brown Univ., 184 F.3d 20, 26 (1st Cir. 1999). This stringent
requirement applies to Title IX claims "to eliminate any 'risk that
the recipient would be liable in damages not for its own official
decision but instead for its employees' independent actions.'"
Davis, 526 U.S. at 643 (quoting Gebser, 524 U.S. at 290-91).
The Supreme Court has held that federal funding
recipients may be liable under Title IX for acts of student-on-
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student and teacher-on-student harassment. See id.; Gebser, 524
U.S. at 281. But "[a] recipient cannot be directly liable for its
indifference where it lacks the authority to take remedial action."
Davis, 526 U.S. at 644. The lines of institutional authority vis-
à-vis an employee of a third-party contractor are often blurred.
Everything depends on "the recipient's degree of control over the
harasser and the environment in which the harassment occurs." Id.
Whatever the context, Title IX's "actual knowledge"
requirement demands that the official who is informed of the
alleged harassment be a person who, at a minimum, has the authority
to institute corrective measures. Gebser, 524 U.S. at 290. A
school principal may, in at least some instances, be considered an
appropriate person for the receipt of such notice. See, e.g., id.
at 291; Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d 450, 457
(8th Cir. 2009). But where, as here, the alleged harasser is not
a person subject to the principal's customary disciplinary
authority, the principal may not qualify as an appropriate person.
See Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 361-62 (3d Cir.
2005) (acknowledging that whether principal is "appropriate person"
requires factual inquiry into her authority to address the
particular harassment at issue). While it is uncertain what
authority a school principal may have over the employee of an
outside vendor, it is clear that a lesser functionary within the
school (say, a teacher or social worker) does not have the
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authority to order the taking of corrective measures. Cf. Plamp,
565 F.3d at 457-58 (holding that similarly situated school
functionaries lacked proper authority vis-à-vis teacher); Warren ex
rel. Good v. Reading Sch. Dist., 278 F.3d 163, 173-74 (3d Cir.
2002) (similar).
Here, the alleged harasser is a bus driver employed by a
private company engaged pursuant to a contract with the Department.
The plaintiff has not alleged that the principal (or, for that
matter, any other school employee) had the authority to take
corrective action against the bus driver on the Department's
behalf. Nor can such authority reasonably be inferred from the
facts alleged. This defect alone is fatal to the plaintiff's Title
IX claim. See Plamp, 565 F.3d at 458 n.2 (explaining that the
burden is on the plaintiff to establish identity of "appropriate
person").
Moreover, even if we were to assume that the principal
was an "appropriate person" with the authority to take disciplinary
action against the bus driver, the plaintiff has failed to assert
that the principal actually knew about the alleged harassment and
exhibited deliberate indifference toward it. The operative
pleading is the plaintiff's amended complaint. We set out below
the only allegations in the complaint that are even arguably
relevant to the "actual knowledge" inquiry.
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The complaint alleges that the plaintiff went to the
school on October 16, 2003, and told her son's special education
teacher that Jherald had been molested by his bus driver; that the
teacher referred her to the school social worker; that the
plaintiff visited the social worker, who "did not do anything;" and
that the plaintiff "attempted to meet [on] various occasions with
the Principal," who "was never available and/or refused to meet
with her." Based on these "facts," the complaint asserts that the
principal "demonstrated deliberate indifference by failing to take
appropriate action when he had knowledge that the abuse was
occurring."
This conclusory allegation fails. The complaint contains
no facts to make plausible the bald assertion that the principal
"had knowledge" of the abuse. It merely explains that the
plaintiff tried to contact the principal but was unable to do so.
It does not allege actual (as opposed to constructive) knowledge,
and it does not suggest, even obliquely, how the principal might
have acquired actual knowledge. Furthermore, the allegation that
the social worker "did not do anything" undercuts any inference
that she reported the abuse to the principal. The irresistible
conclusion is that the complaint, fairly read, indicates that the
principal lacked actual knowledge of the plaintiff's concerns.
These shortcomings are dispositive. The complaint is
bereft of any indication that any other individual authorized to
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take corrective measures had actual knowledge of the bus driver's
behavior. Although it mentions Jherald's teacher and the school
social worker, the complaint contains nothing that suggests that
either of them comes within Title IX's "appropriate person"
taxonomy. The empty allegation that a school employee "failed to
report" harassment to someone higher up in the chain of command who
could have taken corrective action is not enough to establish
institutional liability. See id. at 458. Title IX does not sweep
so broadly as to permit a suit for harm-inducing conduct that was
not brought to the attention of someone with authority to stop it.
On appeal, the plaintiff attempts to shift the focus of
the Title IX argument, declaring that "the Commonwealth exercised
substantial control over both the harasser and the context in which
the known harassment occurred." But even if we assume the truth of
this declaration, the existence of such control is not sufficient
to rescue the plaintiff's claim. The missing ingredient is whether
an appropriate person had actual knowledge of the suspected
harassment, not whether the funding recipient had control, in a
general sense, of the service provided and the environment in which
the harassment occurred. See Gebser, 524 U.S. at 290-91.
III. CONCLUSION
We hold that the district court supportably determined
that the private defendants were not state actors and, thus, were
entitled to summary judgment on the section 1983 claim. Further,
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we hold that the plaintiff failed to plead facts sufficient to
support a plausible Title IX claim against the Commonwealth and/or
the Department; therefore, the court below did not err in
dismissing that claim under Rule 12(b)(6).
We close by noting that the plaintiff is not without a
remedy. The district court appropriately dismissed her local law
claims without prejudice, and she is free to pursue those claims in
the courts of Puerto Rico. For our part, we need go no further.
Affirmed.
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