## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 4 1999 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PENELOPE C. MURRELL, on her own behalf and as mother and guardian ad litem of Penelope C. Jones; and PENELOPE C. JONES, Plaintiffs-Appellants,

v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, also known as Denver Public Schools; SCHOOL DISTRICT NO. 1, BOARD OF EDUCATION, also known as Denver Public Schools Board of Education; VIVIAN JOHNSTON, individually and in her capacity as Principal of George Washington High School; KATHLEEN BRADY, individually and in her capacity as Teacher; NELIA HICKS, individually and in her capacity as Teacher; IRV MOSKOWITZ, in his capacity as the Superintendent of Denver Public Schools, Defendants-Appellees,

NOW LEGAL DEFENSE AND EDUCATION FUND; ACLU WOMEN’S RIGHTS PROJECT; CONNECTICUT WOMEN’S EDUCATION AND LEGAL DEFENSE FUND; EQUAL RIGHTS ADVOCATES; NATIONAL WOMEN’S LAW CENTER; NORTHWEST WOMEN’S LAW CENTER; TEXAS CIVIL RIGHTS PROJECT; TITLE IX ADVOCACY PROJECT; WOMEN’S LEGAL DEFENSE FUND; NATIONAL ASSOCIATION OF SCHOOL PSYCHOLOGISTS; NATIONAL ASSOCIATION OF SCHOOL WORKERS; LAMBDA No. 97-1055-2-

LEGAL DEFENSE AND EDUCATION FUND, INC.; UNITED STATES OF AMERICA, Amici Curiae.

Appeal from the United States District Court for the District of Colorado (D.C. No. 95-Z-2882)

David C. Feola of King Clexton & Feola, LLC, Denver , Colorado (Alan K. Molk of Lapuyade, Washington & Molk, L.L.C., Denver, Col orado, with him on the briefs), for Plaintiffs-Appellants. Yolanda S. Wu (Martha F. Davis and Julie Goldscheidwith her on the brief) of NOW Legal Defense and Education Fund, New York, NewYork, for Amici Curiae NOW Legal Defense and Education Fund, ACLU W omen’s Rights Project, Connecticut Women’s Education and Legal Defense Fun d, Equal Rights Advocates, National Women’s Law Center, Northwest W omen’s Law Center, Texas Civil Rights Project, Title IX Advocacy Proje ct, Women’s Legal Defense Fund on behalf of Plaintiffs-Appellants. Patrick B. Mooney (Martin Semple with him on the br ief) of Semple & Mooney, P.C., Denver, Colorado, for Defendants-Appellees. Isabelle Katz Pinzler, Acting Assistant Attorney Ge neral; and Dennis J. Dimsey and Seth M. Galanter, Attorneys, Department of Just ice, Washington, DC, filed a brief for Amicus Curiae United States of America. Beatrice Dohrn, Legal Director; and David S. Buckel and Ruth E. Harlow of Lambda Legal Defense Fund, Inc., New York, New York , filed a brief for Amici Curiae National Association of School Psychologists , National Association of Social Workers, and Lambda Legal Defense and Educat ion Fund, Inc.

Before SEYMOUR , Chief Judge, ANDERSON and LUCERO , Circuit Judges.1 Ms. Murrell also advanced claims under the American s with Disabilities (continued...) -3- SEYMOUR , Chief Judge.

Penelope C. Murrell brought this action on her own behalf and as guardian ad litem for her daughter, Penelope C. Jones, against Schoo l District Number 1, Denver, Colorado (the School District). In her complaint, Ms. Murrell asserted that the School District violated Title IX of the E ducation Amendments of 1972, 20 U.S.C. §§ 1681 et seq. , based on the School District’s alleged knowledge of and failure to remedy sustained sexual harassment, assault, and battery of Ms. Jones, a developmentally and physically disabled st udent at George Washington High School (GWHS), by one of her fellow students. Ms. Murrell also asserted two claims under 42 U.S.C. § 1983 against the Schoo l District, and individually against the principal of GWHS and two of Ms. Jones’ teachers. In her first constitutional claim, Ms. Murrell alleged that the School District, principal and teachers violated the Equal Protection Clause of th e Fourteenth Amendment by failing to remedy Mr. Doe’s sexual harassment of Ms . Jones. In her second claim, Ms. Murrell alleged the School District, principal and teachers violated the Due Process Clause of the Fourteenth Amendment by faili ng to protect Ms. Jones from
Mr. Doe. 11 (...continued)

Act, 42 U.S.C. §§ 12101, et seq. , and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Following entry of the district court’s order dismissing the action, the parties stipulated to the dismissal with prejud ice of these claims.

2 In dismissing Ms. Murrell’s section 1983 claims, th e district court made direct reference only to her due process claim and gave no reasons for its dismissal of her equal protection claims. -4- The district court dismissed the action under Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief may be gr anted. The court held that Title IX provides no cause of action for a school’s failu re to prevent and remedy student-on-student sexual harassment, and that the School District had no constitutional duty to protect Ms. Jones from assau lts by a fellow student. 2 Ms. Murrell and Ms. Jones appeal the district court’s o rder with respect to her Title IX and equal protection claims. For the reasons state d below, we reverse in part and affirm in part.

I. In reviewing the grant of a motion to dismiss, we a re bound to construe as true the facts presented in the plaintiff’s complai nt. See Seamons v. Snow , 84 F.3d 1226, 1231-32 (10th Cir. 1996). Thus construe d, the complaint presents the following series of events. Penelope Jones began attending classes at GWHS on o r about October 25, 1993. Ms. Jones was born with spastic cerebral pal sy, which severely impairs her-5-

ability to use and control the right side of her bo dy. She is also deaf in her left ear. Testing conducted by the School District esta blished that Ms. Jones was also developmentally disabled. According to an Educatio nal Assessment performed in December 1993, Ms. Jones functioned intellectually and developmentally at the level of a first-grader. Upon enrolling Ms. Jones at GWHS, Ms. Murrell informed the principal of GWHS, Vivian Johnston, and special education teache rs Kathleen Brady and Nelia Hicks, that Ms. Jones had been sexually assau lted at her previous school. Ms. Murrell expressed her fear that her daughter’s mental and physical disabilities would place her at continued risk. Ms. Murrell ass erts that the principal and the teachers assured her Ms. Jones would be properly supervised. The complaint also alleges that these officials had a duty to supervis e and ensure the safety of all GWHS students. GWHS assigned Ms. Jones to the special education pr ogram taught by teachers Brady and Hicks. There Ms. Jones encounte red another special education student, “John Doe,” who was known to hav e significant disciplinary and behavioral problems which included engaging in sexually inappropriate conduct. According to the allegations in the comp laint, the School District was well aware of Mr. Doe’s history. Indeed, Mr. Doe’s mother had specifically cautioned the teachers and the principal of the nee d to keep a watchful eye on him-6-

and had informed them that Doe was receiving profes sional treatment for his problems. Despite Mr. Doe’s known behavioral probl ems, the School District appointed him to a position as a “janitor’s assistant,” through which he gained access to certain unsupervised areas of the school. In early November 1993, the teachers became aware t hat Mr. Doe was engaging in aggressive, sexually inappropriate cond uct toward Ms. Jones. At about that same time, Ms. Murrell informed the teac hers that Mr. Doe had been making harassing phone calls to Ms. Jones at her ho me. According to the complaint, it was also during this time that Mr. Do e sexually assaulted Ms. Jones on multiple occasions. Sometime in November, Mr. D oe took Ms. Jones to a secluded area and sexually assaulted her. Ms. Jone s, who was menstruating at the time, bled and vomited during the course of the ass ault and battery. Upon discovering Mr. Doe and Ms. Jones, a janitor told them to clean up the mess, returned them to class, and advised the teachers wh ere he had found them. Although the teachers allegedly knew that Mr. Doe h ad sexually assaulted Ms. Jones on this occasion, they did not so inform Ms. Murrell. Ms. Murrell learned that Ms. Jones had gotten menstrual blood on her cl othing and that the teachers had tied other clothing around her waist to hide it , but Ms. Murrell was never told that the janitor had found Mr. Doe and Ms. Jones ina secluded, unsupervised area, nor was Ms. Murrell informed of any of the ci rcumstances leading to the-7-

soiling of Ms. Jones’ clothing. On at least one of the occasions on which Mr. Doe battered and sexually assaulted her, Ms. Jones informed the teachers of Mr. Doe’s conduct. The teachers told Ms. Jones not to tell her mother about the incident and encouraged her to forget it had happen ed at all. On or about November 24, 1993, Mr. Doe again took Ms. Jones to a secluded area of the school and battered and sexually assaulted her. Al though the teachers knew she had been battered and may have known she was sexual ly assaulted, they informed Ms. Jones’ mother only about the non-sexual battery

. Because of these incidents and because she had begu n to engage in selfdestructive and suicidal behavior, Ms. Jones left s chool and entered a psychiatric hospital. Only then did Ms. Murrell learn about th e sexual assaults and the batteries of her daughter by Mr. Doe. Although Ms. Murrell immediately contacted the teachers to advise them of what she h ad learned from Ms. Jones, the teachers denied the incidents could have occurred, told Ms. Murrell to send Ms. Jones back to school, and refused to discuss the matter further. Ms. Murrell asked that the information be provided to Principal Johnston in order that she might investigate Ms. Jones’ allegations. Ms. Murr ell then telephoned the principal herself and left a message on her answeri ng machine. The principal neither returned Ms. Murrell’s call nor undertook any investigation of the alleged incidents.-8-

Following her release from the hospital, Ms. Jones attempted to return to school on December 6, 1993, but stayed for only one day because she was once again battered by Mr. Doe and ridiculed by other st udents for Mr. Doe’s earlier sexual attacks on her. After making several unsucc essful attempts to contact the principal, Ms. Murrell eventually learned from the teachers and Mr. Doe’s mother that a meeting had been scheduled to discuss Mr. Doe’s sexual conduct with Ms. Jones. That meeting took place on Decembe r 10 at GWHS and was attended by the principal, Mr. Doe’s mother, the te achers, Ms. Murrell and her husband, and Ms. Jones. The teachers and the princ ipal were hostile towards Ms. Jones and Ms. Murrell. Indeed, the principal alleg edly suggested that the sexual contact between Mr. Doe and Ms. Jones might have be en consensual, although she knew Ms. Jones was legally incapable of consent ing and that Mr. Doe had admitted assaulting Ms. Jones after she had resiste d his advances. The principal declined to investigate the incident, and when Ms. Murrell suggested that both students be suspended pending an investigation, the principal responded by suspending only Ms. Jones for “[b]ehavior which is detrimental to the welfare, safety, or morals of other pupils or school personn el.” Aplt. App. at 14. In the meantime, the School District neither notifi ed appropriate law enforcement officials of the alleged sexual assault s by Mr. Doe nor disciplined him in any way. Not only did Mr. Doe continue to attend GWHS after the-9-

December 1993 meeting, he retained his job as a jan itor’s assistant with the same access to all parts of the school he had previouslyenjoyed.

II. We review de novo the grant of a motion to dismiss for failure to st ate a claim under Fed. R. Civ. P. 12(b)(6), accepting as true the factual allegations in the complaint and drawing all reasonable inferences in favor of the plaintiff. See
Seamons , 84 F.3d at 1231-32. Dismissal is inappropriate “ unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957); see also Shaw v. Valdez , 819 F.2d 965, 968 (10th Cir. 1987). “The Federal Rules of Civil Procedure require only that the pleadings give a defendant notice of the nature of the claims against him.” Morse v. Regents of the Univ. of Colo. , 154 F.3d 1124, 1127 (10th Cir. 1998).

A. We begin by addressing the School District’s argume nt that dismissal is required because educational institutions are not l iable under Title IX for peer sexual harassment. In dismissing the action, the d istrict court concluded Ms. Murrell failed to establish institutional liability based on the Fifth Circuit’s-10-

opinion in Rowinsky v. Bryan Indep. Sch. Dist ., 80 F.3d 1006, 1011, n.11, 1012 (5th Cir. 1996), which held that agency principles do not apply under Title IX and a school district is not liable for the conduct of a harassing student because the student is not an agent of the school, id. After oral argument on appeal, we abated this case pending the Supreme Court’s review of Davis v. Monroe County Bd. of Educ. , 120 F.3d 1390 (11th Cir. 1997), cert. granted, 119 S. Ct. 29 (1998). The Court has now handed d own an opinion in that case addressing “whether a recipien t of federal education funding may be liable for damages under Title IX under any circumstances for discrimination in the form of student-on-student se xual harassment.” Davis v. Monroe County Bd. of Educ. , 119 S. Ct. 1661, 1669 (1999). Specifically, the Court considered “whether a district’s failure to r espond to [such] harassment can support a private suit for money damages.” Id. The Court decided that it could, holding: funding recipients are properly held liable in dama ges only where they are deliberately indifferent to sexual harassm ent, of which they have actual knowledge, that is so severe, pervasive , and objectively offensive that it can be said to deprive the victim s of access to the educational opportunities or benefits provided by the school. Id. at 1675. Because Davis directly addresses many of the issues here, we anal yze Ms. Murrell’s claim in light of this recent precede nt, having received supplemental briefing from the parties on the effec t of Davis

.-11-

In Davis , the Supreme Court considered whether the Monroe C ounty Board of Education could be held liable for its failure t o respond to LaShonda D.’s numerous complaints that a fellow student, G. F., w as sexually harassing her. LaShonda was a fifth grader at a Monroe County elem entary school. She alleged that from December 1992 to May 1993, G. F. engaged in a course of sexually harassing conduct during which he, inter alia, atte mpted to touch her breasts and genital area, made vulgar comments to her, and rubb ed his body against hers in a sexually suggestive manner. Id. at 1667. LaShonda reported some of these incidents to classroom teachers, and reported other s to her mother, Aurelia Davis, who then contacted the teachers. Id. At least one teacher assured Ms. Davis that the principal had been informed of the harassing in cidents. Id. In addition, LaShonda and other female students unsuccessfully r equested a meeting with the principal to discuss G. F.’s behavior. In mid-May, Ms. Davis met with the principal, who was unsympathetic to the problem. Id. At no time did the school discipline G. F. and only after more than three mon ths of reported harassment did it permit LaShonda to change her classroom seat so she was no longer seated next
to G. F. Id. G. F.’s conduct interfered with LaShonda’s school attendance and performance, which was evidenced by a drop in her g rades over the relevant time period. Ms. Davis sued the school district for mon etary and injunctive relief under Title IX.3 Because Title IX is Spending Clause legislation, “p rivate damages actions

are available only where recipients of federal fund ing had adequate notice that they could be liable for the conduct at issue.” Davis , 119 S. Ct. at 1670. If funding recipients had adequate notice, they might be liable for damages under the rule that Davis articulates. See id. at 1672-73. -12- Title IX provides in relevant part, “‘[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied t he benefits of, or be subjected to discrimination under any education program or ac tivity receiving Federal financial assistance.’” Id. at 1669 (quoting 20 U.S.C. § 1681(a) (1994)). Tit le IX is enforceable through an implied private right of action for which money damages are available. See id

. 3
Davis affirmed that “a recipient of federal funds may be liable in damages under Title IX only for its own misconduct.” Id. at 1670; see also Gebser v. Lago Vista Indep. Sch. Dist. , 118 S. Ct. 1989, 1998 (1998) (rejecting the appli cation of vicarious liability and agency principles as bases for holding school districts liable under Title IX). Applying this principle, t he Court found Ms. Davis had a viable claim because she “attempt[ed] to hold the B oard liable for its own decision to remain idle in the face of known studen t-on student harassment in its schools.” Davis , 119 S. Ct. at 1670 (emphasis added). She did notassert the school district was liable for G. F.’s (or any othe r third party’s) inappropriate conduct. Title IX permits liability in such a case

. In order to confine Title IX liability to those cas es in which the school-13-

district itself acted improperly, Davis imposes liability only if the district remains deliberately indifferent to acts of harassment of w hich it has actual knowledge. Id. at 1672. That standard makes a school district lia ble only where it has made a conscious decision to permit sex discrimination in its programs, and precludes liability where the school district could not have remedied the harassment because it had no knowledge thereof or had no authority to respond to the harassment. After all, “[d]eliberate indifference makes sense a s a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment. A recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action.” Id. This rationale and the plain language of Title IX “limit a recipient’s damage li ability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.” Id.
Davis also recognizes the difference between children and adults, and between school and workplaces. The Court emphasizedthat [d]amages are not available for simple acts of teas ing and namecalling among school children . . . even where thes e comments target differences in gender. Rather, in the context of s tudent-on-student harassment, damages are only available where the be havior is so severe, pervasive, and objectively offensive that i t denies victims the equal access to education that Title IX is designed to protect. Id. at 1675. In sum, a plaintiff must allege four factors to state a claim of school district-14-

liability under Title IX. She must allege that the district (1) had actual knowledge of, and (2) was deliberately indifferent to (3) har assment that was so severe, pervasive and objectively offensive that it (4) dep rived the victim of access to the educational benefits or opportunities provided by the school. Id. at 1671-72. This limited rule imposes liability only on those s chool districts that choose to ignore Title IX’s mandate for equal educational opp ortunities. We now consider Ms. Murrell’s claim in light of Davis and other relevant authority. The School District’s argument and the district court’s order dismissing the case both rest on the premise that an educational institution cannot be held liable under Title IX for conduct not attri butable to the institution itself. The School District frames the question before us a s whether Title IX imposes “an affirmative duty on educational institutions re ceiving federal financial assistance to prevent students from sexually harass ing or assaulting one another,” Aplee. Br. at 1, and asserts that the plain languag e of the statute and the dictates of the Spending Clause preclude holding a grant rec ipient liable for the acts of its students. This argument misconstrues the nature of the liability Ms. Murrell seeks to impose. Like the plaintiff in Davis , Ms. Murrell asserts that school officials had actual knowledge of the repeated sexual assaultof her daughter and yet decided to remain idle. Ms. Murrell thus seeks to hold the School District liable for its own “intentional conduct that violates the clear terms of [Title IX].”-15-

Davis , 119 S. Ct. at 1671. The Court in Davis did not expressly set out the standard for determin ing when a school board has sufficient notice that hara ssment is taking place to be liable for failing to respond appropriately. Nonet heless, in contrasting a school district’s liability for its own failure to act wit h liability improperly based on agency principles, the Court held that liability pr operly attaches when the misconduct “takes place while the students are invo lved in school activities or otherwise under the supervision of school employees .” Id. at 1672-73. In so doing, the Court cited with approval Doe v. University of Ill. , 138 F.3d 653, 661 (7th Cir. 1998). Doe in turn held that a school district is liable if “ a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the [harasser] and the p ower to take action that would end such abuse and failed to do so.” Id. at 668 (internal quotation omitted); see also Rosa H. v. San Elizario Indep. Sch. Dist. , 106 F.3d 648, 660 (5th Cir. 1997). Accordingly, we believe the first two prongs of the Davis analysis require that a school official who possessed the requisite control over the situation had actual knowledge of, and was deliberately indifferent to, the alleged harassment. We decline simply to name job titles that would orwould not adequately satisfy this requirement. “[S]chool districts cont ain a number of layers below the school board: superintendents, principals, vice-pr incipals, and teachers and-16-

coaches, not to mention specialized counselors suchas Title IX coordinators. Different school districts may assign different dut ies to these positions or even reject the traditional hierarchical structure altog ether.” Rosa H. , 106 F.3d at 660. Because officials’ roles vary among school district s, deciding who exercises substantial control for the purposes of Title IX li ability is necessarily a fact-based inquiry. Davis makes clear, however, that a school official who h as the authority to halt known abuse, perhaps by measures such as tr ansferring the harassing student to a different class, suspending him, curta iling his privileges, or providing additional supervision, would meet this definition. Turning to Ms. Murrell’s complaint, we conclude she has sufficiently alleged actual knowledge and deliberate indifferenc e. Ms. Murrell alleged that she telephoned Principal Johnston to discuss Mr. Do e’s harassing conduct, and therefore that the principal had actual knowledge o f the assaults at least as of the time Ms. Jones was in the hospital. Nevertheless, Principal Johnston failed to take any action to remedy the situation when Ms. Jo nes returned to school. Indeed Principal Johnston allegedly refused to inve stigate the matter or discipline Mr. Doe, and instead suspended Ms. Jones and sugges ted that the sexual conduct was consensual. We find little room for doubt that the highest-rank ing administrator at GWHS exercised substantial control of Mr. Doe and the GWHS school4 We also note that in Franklin v. Gwinnett County Pub. Sch. , 503 U.S. 60

(1992), a teacher-student harassment case, no schoo l official above the principal had notice of the alleged sexual harassment. See Franklin v. Gwinnett County Pub. Sch ., 911 F.2d 617, 618 (11th Cir. 1990), rev’d, 503 U.S. 60 (1992) (noting that the band director, assistant principal, and later principal knew of the inappropriate conduct). In Gebser v. Lago Vista Indep. Sch. Dist. , 118 S. Ct. 1989 (1998), the Court noted that in Franklin actual notice could be satisfied because “there was evidence that school officials k new about the harassment but took no action to stop it.” Id. at 1995-96. In contrast, in Gebserthe principal had no knowledge of the teacher’s sexual relationship w ith the plaintiff, and therefore the school district did not have actual notice of t he harassment. See id. at 2000. -17- environment during school hours, and so her knowled ge may be charged to the School District. See Davis , 119 S. Ct. 1661 (finding a basis for Title IX lia bility when principal allegedly had actual knowledge of se xual harassment and failed to respond to ameliorate the situation). 4 The Denver Public Schools’ sexual harassment policy, which prohibits peer sexual hara ssment, provides that “grievances would routinely be filed” with the prin cipal. Aplt. App. at 117-18. Principal Johnston had the authority to suspend stu dents “for ‘[b]ehavior which is detrimental to the welfare, safety, or morals of ot her pupils,’” id. at 14; indeed, she allegedly enforced this policy against Ms. Jone s, although not against Mr. Doe. According to the complaint, the principal and teachers “never appropriately disciplined Doe,” id. , and he continued to enjoy access to unsupervised parts of the GWHS facility. Principal Johnston’s alleged “r esponse to the harassment or lack thereof [wa]s clearly unreasonable in light of the known circumstances.”
Davis , 119 S. Ct. at 1674. Her complete refusal to inve stigate known claims of-18-

the nature advanced by Ms. Murrell, if true, amount s to deliberate indifference. As Ms. Murrell has adequately alleged actual knowle dge and deliberate indifference on the part of Principal Johnston, she has satisfied the first two elements of the Davis inquiry. Ms. Murrell also asserts that the teachers had a duty to supervise and ensure the safety of all GWHS students including Ms. Jones . They allegedly had actual knowledge of Mr. Doe’s conduct toward Ms. Jones fro m almost the moment it began to occur, and not only refused to remedy the harassment but actively participated in concealing it, including telling Ms . Jones not to inform her mother of Mr. Doe’s actions and refusing to inform her mother themselves when presented with myriad opportunities to do so. It i s possible that these teachers would also meet the definition of “appropriate pers ons” for the purposes of Title IX liability if they exercised control over the har asser and the context in which the harassment occurred. Where the victim is compl aining about a fellow student’s action “during school hours and on school grounds,” id. at 1672, teachers may well possess the requisite control nec essary to take corrective action to end the discrimination. See Gebser , 118 S. Ct. at 2004 n.8 (Stevens, J., dissenting) (“If petitioner had been the victim of sexually harassing conduct by other students during those classes, surely the tea cher would have had ample authority to take corrective measures.”). At this stage in the proceedings we must-19-

accept as true the allegation that Ms. Jones’s teac hers were invested with the authority to halt Mr. Doe’s known sexually assaulti ve behavior. If they were, their alleged response quite plainly amounts to del iberate indifference. We next consider whether the harassment inflicted upon Ms. Jones was sufficiently “severe, pervasive, and objectively of fensive” to satisfy Davis , 119 S. Ct. at 1676. Ms. Murrell has alleged that over the course of about a month, Mr. Doe repeatedly took Ms. Jones to a secluded area an d battered, undressed, and sexually assaulted her. Although Mr. Doe’s behavio r did not last as long as the harassment in Davis , we easily conclude that Ms. Murrell has alleged w rongdoing “sufficiently severe, pervasive and objectively off ensive” to state a claim. Our final consideration under Davis is whether the school officials’ deliberate indifference deprived Ms. Jones of acces s to the educational opportunities or benefits provided by GWHS. Again, we have little difficulty concluding that it did under the allegations set fo rth here. After the assaults, Ms. Jones became a danger to herself and had to leave s chool to be hospitalized. Moreover, Principal Johnston suspended Ms. Jones wh en Ms. Murrell suggested the School District should investigate the claim. Ms. Jones is now home bound as a result of her experience at GWHS. The School Dis trict’s deliberate indifference to her claims totally deprived Ms. Jones of its edu cational benefits. Ms. Murrell’s complaint satisfies the four factors necessary to impose Title5 Ms. Murrell argued below that the School District v iolated Ms. Jones’s

rights under the Due Process Clause by failing to p rotect her from harassment by Mr. Doe. Ms. Murrell has not revisited that claim in this appeal and we therefore deem it waived. -20- IX liability on school districts for student-on-stu dent harassment and she has therefore stated a claim on which relief can be gra nted. We reverse the district court’s order dismissing Ms. Murrell’s Title IX cla im.

B. We next address the district court’s dismissal of M s. Murrell’s claim under 42 U.S.C. § 1983. Ms. Murrell alleged that by fail ing to take steps to eradicate the hostile environment created by Mr. Doe, the Sch ool District, and the principal and teachers individually, deprived Ms. Jones of he r constitutional right to equal protection of the laws under the Fourteenth Amendme nt. 5 The district court summarily dismissed the equal protection claim. On appeal, defendants argue that the claim was properly dismissed on the following g rounds: 1) Ms. Murrell’s complaint fails to allege intentional gender-based discrimination by the School District in the form of an official policy to discr iminate and therefore fails to state an equal protection claim as a matter of law; 2) respondeat superiorliability is not available under section 1983; and 3) the indivi dual defendants are entitled to qualified immunity.-21-

1. School district liability for sexual harassment under the Equal Protection Clause The Fourteenth Amendment to the United States Const itution provides that “[n]o state shall . . . deny to any person within i ts jurisdiction the equal protection of the laws.” Denials of equal protection by a mun icipal entity or any other person acting under color of state law are actionab le under 42 U.S.C. § 1983. It is well established in this circuit that sexual har assment by a state actor can constitute a violation of the equal protection clau se. See Starrett v. Wadley , 876 F.2d 808, 814 (10th Cir. 1989) (quoting Bohen v. City of East Chicago , 799 F.2d 1180, 1185 (7th Cir. 1986) (“‘Sexual harassment of female employees by a state employer constitutes sex discrimination for purpose s of the equal protection clause of the fourteenth amendment.’”)). In order to establish municipal, or in this case Sc hool District, liability for sexual harassment under the Fourteenth Amendment, aplaintiff must demonstrate that a state employee’s discriminatory actions are representative of an official policy or custom of the municipal institution, or a re taken by an official with final policy making authority. See Randle v. City of Aurora , 69 F.3d 441, 446-50 (10th Cir. 1995). To subject a governmental entity to li ability, “a municipal policy must be a ‘policy statement, ordinance, regulation, or decision officially adopted and promulgated by [a muncipality’s] officers.’” See Lankford v. City of Hobart , 73 F.3d 283, 286 (10th Cir. 1996) (quoting Starrett , 876 F.2d at 818); see also-22-

Monell v. New York City Dep’t of Social Servs. , 436 U.S. 658 (1978). Absent such an official policy, a municipality may also be held liable if the discriminatory practice is “so permanent and well s ettled as to constitute a ‘custom or usage’ with the force of law.” Lankford, 73 F.3d at 286 (quoting Adickes v. S.H. Kress & Co. , 398 U.S. 144, 168 (1970)). We agree with the School District that even the mos t liberal construction of Ms. Murrell’s complaint fails to reveal any allegat ion that the School District engaged in an official policy of deliberate indiffe rence to sexual harassment. Acts that do not rise to the level of official poli cy may nonetheless create liability if they are sufficiently widespread and pervasive s o as to constitute a “custom.”
See Starrett , 876 F.2d at 820. However, acts of sexual harass ment by a student directed solely at Ms. Jones do not demonstrate a c ustom or policy of the School District to be deliberately indifferent to sexual h arassment as a general matter.
See Monell , 436 U.S. at 691 & n.56. In addition, plaintiffs’ complaint gives no indicat ion that either the principal or the teachers possessed the “final poli cymaking authority” the Supreme Court requires for purposes of establishing municipal liability under section 1983 on the basis of a decision specific to a particular situation. See Randell , 69 F.3d at 447-50; see also Pembaur v. City of Cincinnati , 475 U.S. 469, 483 (1986); City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). Ms. Murrell’s6 Ms. Murrell argues on appeal that the district court erred in refusing to

grant her leave to amend her complaint. Under our precedent, however, Ms. Murrell’s pleadings below did not place a motion to amend before the court and the court therefore did not err in failing to addre ss the matter. See Calderon v. Kansas Dep’t of Soc. & Rehabilitation Servs. , No. 98-3183, 1999 WL 454360 (10th Cir. July 6, 1999); Glenn v. First Nat’l Bank, 868 F.2d 368, 370-71 (10th Cir. 1989). -23- section 1983 claim against the School District was therefore properly dismissed. 6
2. Individual liability of the principal and teachers for sexual harassment under the Equal Protection Clause By way of contrast to the institution itself, a gov ernmental official or supervisory employee may be held liable under secti on 1983 upon a showing of deliberate indifference to known sexual harassment. Although conduct by a state actor is required in order to support a claim undersection 1983 and the primary conduct in this case is that of a student, we have found the possibility of state action where “a supervisor or employer participates in or consciously acquiesces in sexual harassment by an outside third party or b y co-workers.” Noland v. McAdoo , 39 F.3d 269, 271 (10th Cir. 1994) (quoting Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992) (emphasis ad ded)). “[L]iability under § 1983 must be predicated upon a ‘deliberate’ deprivation of constitutional rights by the defendant” and not upon mere negligen ce. Woodward, 977 F.2d at 1399. In order to state a claim of “deliberate” di scriminatory conduct, Ms. Murrell must state facts sufficient to allege “defe ndants actually knew of and7 Throughout its briefs, the School District repeated ly attempts to

characterize the conduct by school officials of whi ch Ms. Murrell complains as a failure to preventone student from harassing another. Although it i s true that Ms. Murrell originally alleged, but has apparently sinc e abandoned, a Fourteenth Amendment due process claim based on the School Dis trict’s failure to protect Ms. Jones given the School District’s knowledge of her impairments and Mr. Doe’s proclivities, her remaining claims allege that the School District failed to reasonably respond to sexual harassment of which ithad actual knowledge. We agree with the School District that a failure to pr event sexual harassment by a student before it occurs does not violate Title IX or the Fourteenth Amendm ent absent a showing of an institutional policy of indi fference. However, a refusal to remedy known sexual harassment is actionable. We also note the School District’s repeated efforts to argue that Ms. Murrell’s complaint does not allege actual knowledg e of Mr. Doe’s conduct by the principal or the teachers. This amounts to a b latant misstatement of the allegations in the complaint. It is not remotely c redible for the School District to argue a failure to allege actual knowledge when the complaint – though hardly a model of clarity – quite clearly asserts, among oth er things, that the principal refused to investigate Doe’s conduct after she was informed of it by Ms. Murrell, that the teachers knew Doe had sex with Ms. Jones and told her not to inform her mother about it, and that Doe admitted to the teach ers that he had sex with Ms. Jones without her consent. It is possible that the course of litigation will reveal these allegations to be untrue. However, our only inquiry on this review of a motion to dismiss is to determine whether the alleg ations were made, not whether they are true. -24- acquiesced in” Mr. Doe’s behavior. Jojola v. Chavez , 55 F.3d 488, 490 (10th Cir. 1995). This is precisely Ms. Murrell’s claim – that the principal and the teachers knew about Mr. Doe’s harassment of Ms. Jones and ac quiesced in that conduct by refusing to reasonably respond to it. 7Ms. Murrell has therefore stated a claim under section 1983 against the principal and the te achers in their individual capacities unless their assertion of qualified immu nity is valid. In an action under section 1983, individual defen dants are entitled to-25-

qualified immunity unless it is demonstrated that t heir alleged conduct violated clearly established constitutional rights of which a reasonable person in their positions would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In order for the law to be clearly establ ished, “there must be a Supreme Court or other Tenth Circuit decision on point, or the clearly established weight of authority from other circuits must have found th e law to be as the plaintiff maintains.” Medina v. City and County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992). In this circuit, it has been clearly established since our holding in 1989 in Starrett , 876 F.2d at 814, that “sexual harassment . . . ca n violate the Fourteenth Amendment right to equal protection of t he laws.” See Woodward, 977 F.2d at 1398. Moreover, it has been clearly es tablished since at least 1992 that a person who exercises the state’s supervisoryauthority may be held liable for consciously acquiescing in sexually harassing c onduct by a non-state actor over whom the state actor has authority. Id. at 1401. The events forming the basis for Ms. Murrell’s claims in this case occurre d in late 1993. The School District asserts the individual defendants are entitled to qualified immunity because there has previously bee n no case holding an individual school employee liable for sexual harassment under the Fourteenth Amendment. This argument carries the concept of “c learly established” to an extreme we decline to adopt. We have never said th at there must be a case8 The School District also cites Doe v. Petaluma City Sch. Dist. , 54 F.3d

1447, 1450-51 (9th Cir. 1995), in support of its cl aim that the individual defendants are entitled to qualified immunity becau se peer harassment under Title IX was not clearly established as actionable when t he conduct at issue in this case occurred. This argument is unavailing because Ms. Murrell’s section 1983 claim is predicated not on Title IX, but rather on the Fo urteenth Amendment. A state actor’s acquiescence in sex discrimination is indep endently actionable under the Fourteenth Amendment regardless of the dictates of Title IX which, as noted above, provides its own private right of action. Cf. Gebser , 118 S. Ct. at 2000 (“Our decision does not affect any right of recovery that an individual may have against a school district . . . or against [a teach er] in his individual capacity under . . . 42 U.S.C. § 1983.”); Starrett , 876 F.2d at 814 (“If a plaintiff can show a constitutional violation by someone acting under co lor of state law, then the (continued...) -26- presenting the exact fact situation at hand in orde r to give parties notice of what constitutes actionable conduct. Rather, we require parties to make reasonable applications of the prevailing law to their own cir cumstances: The contours of the right must be sufficiently clea r that a reasonable official would understand that what he is doing vio lates that right. This is not to say that an official action is prote cted by qualified immunity unless the very action in question has pre viously been held unlawful. . . but it is to say that in light of pre-existi ng law the unlawfulness must be apparent. Id. at 1398 (quoting Anderson v. Creighton , 483 U.S. 635, 639-40 (1987)) (emphasis added). Applying this test, the fact that we have said other supervisory municipal employees may be held liable under the Fo urteenth Amendment for deliberate indifference to the discriminatory condu ct of third parties was sufficient to make apparent the unlawfulness of suc h deliberate indifference by a school employee exercising supervisory authority ov er students. 88 (...continued)

plaintiff has a cause of action under Section 1983, regardless of Title VII’s concurrent application.”). -27- Because Ms. Murrell properly alleges that the princ ipal and the teachers, who had supervisory authority over the students at GWHS, met Mr. Doe’s sexually harassing conduct with deliberate indiffer ence, and because they are not entitled to qualified immunity, we reverse the dist rict court’s order dismissing the Section 1983 equal protection claim against the pri ncipal and the teachers in their individual capacities.

III.
We REVERSE the district court’s order dismissing Ms. Murrell’ s Title IX claim, as well as its order dismissing Ms. Murrell’ s section 1983 equal protection claim as to the individual defendants, and REMAND for further proceedings consistent with this opinion. We AFFIRM the district court’s order dismissing the section 1983 equal protection claim against the School District.No. 97-1055, Murrell v. School Dist. No. 1

Anderson, Circuit Judge, concurring in part and con curring in the judgment:

The majority wisely “decline[s] . . . to name job t itles that would or would not adequately satisfy” Davis ’ requirement that the school have control over the harassing student for a finding of Title IX liabili ty. Slip op. at 15. Davis did not answer this question precisely, leaving liability l imited in general terms to cases involving “an official decision by the [Title IX] r ecipient not to remedy the violation.” 119 S. Ct. at 1671 (quoting Gebser v. Lago Vista Independent Sch. Dist. , 524 U.S. 274, 290 (1998)); see also Davis , 119 S. Ct. at 1688 (Kennedy, J., dissenting) (“[T]he majority says not one word about the type of school employee who must know about the harassment before it is act ionable.”). I write separately to point out that given the fact s of this case, some of the language in the majority’s Title IX analysis is unn ecessarily broad. After concluding that Principal Johnston’s alleged delibe rate indifference and actual knowledge are enough to trigger liability under Tit le IX, the majority proceeds to state that “teachers may well possess the requisite control necessary to take corrective action to end . . . discrimination.” Sl ip op. at 18. So stating, the majority implies that a single teacher’s inaction m ay in some circumstances be enough to trigger Title IX liability. That questio n is not before us in this case, at least not at this juncture. There is simply no nee d for such employee-by--2-

employee analysis, given that the facts alleged cle arly amount to an “official decision” by Principal Johnston, the highest-rankin g school official, “not to remedy the violation.” Davis , 119 S. Ct. at 1671. A single teacher’s sexual misconduct was not enough to subject a recipient to liability in Gebser , and I believe it is still an open question after Davis whether a single teacher’s indifference is ever sufficient for recipient liabi lity, notwithstanding the Davis dissent’s characterization of the opinion, see Davis , 119 S. Ct. at 1689 (Kennedy, J., dissenting) (postulating that a district might “be held liable for a teacher’s failure to remedy peer harassment.”). Moreover, with respect to Ms. Murrell’s Equal Prote ction Clause claim against the principal and the teachers individually , I emphasize that the “deliberate indifference” standard provides a high hurdle for plaintiffs. Such a high hurdle is necessary, given the myriad contacts which occur daily in this country between teachers and students and between s tudents and their peers. The allegations in this case are so egregious, however, that I agree that Ms. Murrell has stated a claim against the principal and the te achers under the Equal Protection Clause. Whether less egregious facts wi ll suffice in future cases remains to be seen.