United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 96-2426/2712

___________

Tien Lam, D.D.S., *

*

Appellee/Cross-Appellant, *

*

United States of America, *

*

Intervenor *

* Appeal From the United States

District 

v. * Court for the Western District of

* Missouri.

Curators of the University of Missouri, *

at Kansas City Dental School, *

*

Appellant/Cross-Appellee. *

*

___________

Submitted: May 22, 1997

Filed: September 3, 1997

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Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN,

Circuit Judge.

___________

BEAM, Circuit Judge.

The Curators of the University of Missouri (the University) appeal

the district court's denial of their motion for judgment as a matter of law

(JAML) on Tien Lam's claim of hostile environment discrimination in

education in violation of Title IX of the 
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Education Amendments of 1972. 20 U.S.C. §§ 1681-1688. Lam cross-appeals

the district court's grant of summary judgment against her claim of quid

pro quo discrimination in education. We affirm in part, reverse in part

and remand for entry of judgment in favor of the University.

I. BACKGROUND

Tien Lam was a student at the University of Missouri Dental School,

where Dr. Ho Wohn Kim was a clinical instructor. Kim did not "teach" in

the traditional sense: he did not lecture, test, or assign grades to

students. His primary duties consisted of assisting students in the

University's oral surgery clinic, although he did not determine whether

students passed or failed their oral surgery rotation. In addition to his

work for the University, Kim maintained a private dental practice that was

not affiliated with the school. Kim, without the knowledge of the dental

school, hired Lam to assist him in his private practice on two different

dates. The first time Lam worked at Kim's office was uneventful. However,

on the second occasion Kim forcibly embraced Lam and kissed her. Lam

rejected Kim's overtures and fled the office.

Several days later, Lam notified the University of the incident, and

complained that Kim had been trying to telephone and visit her. University

officials told Kim not to contact Lam, and informed him that they were

undertaking an investigation of Lam's allegations. Kim was instructed not

to return to work until that investigation had been completed. Kim then

resigned. 

The assault triggered memories of sexual abuse Lam had suffered while

fleeing Viet Nam. In the weeks following the incident, Lam became

increasingly depressed and was eventually hospitalized. Upon her return

to school, the University allowed Lam to complete missed assignments and

reschedule examinations. Later that semester, in a course unrelated to Kim

or the oral surgery clinic, instructors showed an 
Lam's initial complaint also named Kim as a defendant. Before trial, Lam

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settled with Kim, and he was dismissed from the lawsuit.

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instructional videotape containing sexual innuendos. Lam told her advisor

that the tape offended her, but did not complain to the University or the

instructors.

Lam filed suit against the University, alleging both hostile

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environment and quid pro quo discrimination in education. The University

moved for summary judgment on both claims. The district court granted

judgment on the quid pro quo claim, and denied it on the hostile

environment theory. That claim was tried to a jury, which returned a

verdict in Lam's favor. The University timely renewed its motion for JAML,

and, when it was denied, initiated this appeal.

II. DISCUSSION

A. Eleventh Amendment Immunity

After the University filed its Notice of Appeal in this case,

Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996) was decided.

The University then filed a Motion for Summary Reversal and Vacation of

Judgment, arguing that Seminole Tribe had divested the federal courts of

subject matter jurisdiction over Title IX suits. In Crawford v. Davis, 109

F.3d 1281, 1282-83 (8th Cir. 1997), we held that under Seminole Tribe, the

Eleventh Amendment does not deprive the federal courts of jurisdiction to

hear Title IX claims. We are bound by Crawford. 

B. Judgment as a Matter of Law

We review a court's grant or denial of JAML de novo, using the same

standards as the trial court. Wood v. Minnesota Mining and Mfg. Co., 112

F.3d 306, 309 (8th Cir. 1997). JAML is appropriate when "a party has been

fully heard on an issue and 
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there is no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue." Fed. R. Civ. P. 50 (a)(1). 

In order for sex discrimination to be actionable under Title IX, the

discrimination must be connected with an "education program or activity

receiving Federal financial assistance." 20 U.S.C. § 1681(a). The

University argues that Lam never established the predicate nexus between

Kim's assault and an "education program or activity" of the University.

The language "education program or activity" was added to Title IX by

Congress in 1987 to make clear that discrimination is prohibited throughout

entire agencies or institutions if any part receives federal financial

assistance. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259,

102 Stat. 28 (codified at 20 U.S.C. § 1681 (a)). The Senate Report

accompanying the Amendment explained that the revision is meant to

"include, but is not limited to . . . traditional educational operations,

faculty and student housing, campus shuttle bus service, campus

restaurants, the bookstore, and other commercial activities." S. Rep. No.

100-64, at 17 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 19. All of the

activities listed are controlled by and inure some benefit to the

institution. 

Here, it is undisputed that Kim conferred no benefit to the Dental

School by operating a separate, competing dental clinic. Correspondingly,

the University exercised no control over the conduct of business at Kim's

office. The University did not provide staff, funding or any other

support. There was no University requirement of private clinical work for

students like Lam. In fact, Lam testified that she kept her work a secret

from the University. We hold that under these facts, Kim's independent,

private dental practice did not constitute a program or activity of the

University. 

Lam attempts to persuade us that liability is nevertheless proper in

this case by citing precedent in which she claims courts allowed Title IX

claims involving off-campus assaults. However, every case cited involved

allegations of conduct occurring either on campus or during some activity

of the institution. See, e.g., Franklin v. 
This conclusion makes it unnecessary for us to reach the remainder of the

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University's arguments on appeal.

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Gwinnett County Pub. Sch., 503 U.S. 60, 63 (1992) (alleging that student

was removed from class for coercive intercourse on school premises); Bolon

v. Rolla Pub. Sch,, 917 F. Supp. 1423, 1427 (E.D. Mo. 1996) (alleging

sexual contact during school); Nelson v. Almont Community Sch., 931 F.

Supp. 1345, 1348-51 (E.D. Mich. 1996) (alleging sexual contact on school

premises and during school-sponsored activities); Patricia H. v. Berkley

Unified Sch. Dist., 830 F. Supp 1288, 1296-97 (N.D. Cal. 1993) (alleging

that continued presence at school of teacher who had previously molested

plaintiffs created hostile environment). The assault by Kim did not occur

in school or during any University-sponsored activity. It therefore cannot

be the predicate for institutional liability under Title IX.

Lam did present other evidence of a hostile environment at the Dental

School in the form of the offensive videotape. However, a necessary

element of a claim under Title IX for hostile environment sexual harassment

is that "the harassment was sufficiently severe or pervasive so as to alter

the conditions of her education and create an abusive educational

environment." Kinman v. Omaha Public Sch. Dist., 94 F.3d 463, 468 (8th

Cir. 1996). This single exposure to a distasteful videotape is not severe

or pervasive enough to create a hostile education environment. Montandon

v. Farmland Indus. Inc., 116 F.3d 355, 358 (8th Cir. 1997) (exposure to

offensive behavior by supervisor on one instance does not satisfy "severe

or pervasive" requirement under Title VII). 

Since Lam did not establish that Kim's assault was connected to an

"education program or activity," she cannot rely on that incident to state

a claim under Title IX. Without the Kim assault, the remaining incident

of harassment was insufficiently severe or pervasive to prove an element

of her prima facie case. The district court erred in failing to grant the 2

University JAML on Lam's hostile education environment claim. 
Since Lam is no longer a prevailing party, we also vacate the district court's

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award of costs and attorneys' fees.

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Finally, Lam cross-appeals the district court's grant of summary

judgment to the University on her quid pro quo claim. Quid pro quo

harassment under Title IX arises when the receipt of academic benefits is

conditioned on acquiescence to sexual advances. Kinman, 94 F.3d at 467.

Lam reports that she believed Kim would help her at school if she worked

for him at his private clinic. However, Lam's subjective hopes of special

treatment are legally insufficient to state a claim of quid pro quo

discrimination. See Cram v. Lamson & Sessions Co., 49 F.3d 466, 474 (8th

Cir. 1995) (plaintiff's subjective belief that defendant had threatened job

retaliation did not state a claim of quid pro quo sexual harassment). Lam

failed to prove that she was denied any educational benefit because of her

refusal to submit to Kim's sexual advances. In fact, since Kim had no

authority over her grades, exams, or course work, Lam failed to establish

that Kim even had the ability impose an educational detriment. The

district court correctly granted JAML on this issue.

III. CONCLUSION

For the foregoing reasons the district court's order granting summary

judgment on Lam's quid pro quo claim is affirmed and its order denying the

University's motion for JAML is reversed. The case is remanded with

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instructions to enter judgment for the University on all claims.

A true copy.

 ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.