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. This school is administered by the Commonwealth of 1

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),

The appellate briefs refer to the minor by his initials: 1

"J.A.A.S." But the pleadings and the parties' briefs before the

district court, none of which are under seal, are more forthcoming.

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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, plaintiffappellant 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,

The record contains Jherald's deposition testimony 2

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.

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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 showcause order. The district court acted on these submissions as a

unit. It concluded that the private defendants were not state

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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-cv01533, 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.

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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." RedondoBorges 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. See Rendell-Baker v. Kohn, 457 U.S. 3

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). 

Because the plaintiff's section 1983 claim is directed 3

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.

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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-tohome 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

Although we reaffirm that providing schooling is not an 4

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. This argument 5

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 RendellBaker, 457 U.S. at 842 n.7.

This argument is necessarily a statutory one, as the Supreme 5

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).

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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 rightsdepriving 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 relationship between the two. See id. at 6. 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 BarriosOur cases sometimes refer to the "nexus/joint action test" 6

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. 

Given the absence of any action under color of state law by 7

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 institution that receives federal funds but 8

not against individuals who merely work for such an institution. 

Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir. 2002).

The proper institutional defendant here is the Department, 8

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 visà-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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