                                   ___________

                                   No. 95-2809
                                   ___________

Janet Kinman,                       *
                                    *
           Appellant,               *
                                    *
      v.                            *    Appeal from the United States
                                    *    District Court for the
Omaha Public School District;       *    District of Nebraska.
Robert Whitehouse, individually     *
and in his official capacity;       *
John Mackiel, PH.D.,                *
individually and in his             *
official capacity; Sheryl           *
McDougall, individually and         *
in her official capacity,           *
                                    *
           Appellees.               *
                               ___________

                   Submitted:      April 12, 1996

                          Filed:   August 26, 1996
                                   ___________

Before WOLLMAN and HANSEN, Circuit Judges, and KYLE,* District Judge.
                               ___________


WOLLMAN, Circuit Judge.


     Janet Kinman appeals the district court's grant of summary judgment
in favor of the Omaha Public School District (the district), one of her
high school teachers, and several school officials on her 42 U.S.C. § 1983
and 20 U.S.C. §1681(a) (Title IX) sexual harassment claims.   We affirm the
grant of summary judgment on the section 1983 claim, but reverse and remand
for a trial on the merits of the Title IX claim.




     *The HONORABLE RICHARD H. KYLE, United States District
     Judge for the District of Minnesota, sitting by
     designation.
                           I.   Facts and Background


     This case arose out of a sexual relationship between Kinman and
Sheryl McDougall, one of Kinman's teachers.       Although defendant school
officials concede that the relationship occurred, the parties dispute
several factual issues, including which party initiated the relationship,
the voluntary nature of Kinman's involvement in the relationship, and the
timing and degree of knowledge obtained by school officials regarding the
relationship.   Because this is an appeal from summary judgment, we will set
out the disputed facts in the light most favorable to Kinman, the party
against whom judgment was entered.


     From September 1986 through May 1990 Kinman was a student at Bryan
High School in Omaha, Nebraska.      Between the fall of 1987 and the spring
of 1988, Sheryl McDougall was Kinman's sophomore English teacher.     During
this year, in response to her suspicion that McDougall was gay, Kinman
wrote McDougall a letter stating that she liked her but that she (Kinman)
was not gay.    Following McDougall's receipt of this letter, Kinman observed
McDougall staring at her, but she did not report this to any school
official.


     Kinman and McDougall remained friends during the following summer.
At some point during that summer, Kinman attempted suicide.     She told her
mother that one of her reasons for doing so was that McDougall was
attempting to convince her that she (Kinman) was gay.        Kinman told her
mother that she did not want to be gay.     Around this time, also allegedly
in reaction to pressure from McDougall, Kinman began drinking.


     During Kinman's junior year, McDougall called her out of study hall
and asked her if she had ever been abused as a child.    Kinman responded by
confiding in McDougall about her childhood abuse, and by describing the
sexual nature of that abuse.    In the course of this conversation, McDougall
told Kinman that she (McDougall) was




                                      -2-
gay.    McDougall then encouraged Kinman to attend an Alcoholics Anonymous
(AA) meeting with her, and Kinman assented.           Until her arrival at the
meeting, Kinman was unaware that it was a gay AA meeting.         At this meeting,
McDougall asked Kinman if she thought a particular woman sitting across the
room was attractive.      McDougall then informed Kinman that she had slept
with this woman.


       During the summer after Kinman's junior year, McDougall asked Kinman
out on a "friend date."      The two ended up at McDougall's residence, where
McDougall proceeded to first caress and then kiss Kinman.           Kinman claims
that she resisted these attentions.       Nonetheless, the two ended up having
sex and spending the night together.       They then apparently entered a sexual
relationship, which proceeded until McDougall temporarily discontinued it
in November 1989, after Kinman told her mother about the relationship and
her    mother   complained   to   the   school's   principal,   defendant   Robert
Whitehouse.


       School officials first began to investigate the possibility of a
relationship between McDougall and Kinman in the fall of 1989.            Contrary
to school policy, McDougall was not suspended during this investigation.
In fact, she was not even questioned initially.       School officials first met
with Kinman's mother, and then with Kinman herself.       They then arranged for
a tracing device to be installed on Kinman's phone in an attempt to
determine the truth of Kinman's allegations that McDougall was calling.
According to Kinman's mother, however, the school officials placed the
tracer on the wrong phone line -- that is, on Kinman's mother's line,
rather than on Kinman's.     School officials also arranged for Kinman to take
a polygraph exam.    When the results of the first test indicated deception,
Kinman took another test.     Apparently, this test also indicated some level
of deception.     In December 1989, defendant John Mackiel, the assistant
superintendent     for   personnel,     confronted    McDougall    with   Kinman's
allegations.     McDougall denied the allegations, claiming that Kinman was
stalking and harassing




                                        -3-
her.   McDougall was not given a polygraph exam.


       Approximately two years after Kinman's graduation, Mackiel received
a phone call from Whitehouse, advising him that Kinman's mother continued
to claim that the relationship between Kinman and McDougall was ongoing.
Kinman's mother informed Mackiel that she now had proof in the form of
McDougall's journal.        Mackiel requested a copy of the journal and had a
private investigator perform a handwriting analysis on it.                 The analysis
indicated    that   the    handwriting      was   indeed   McDougall's.      After    also
receiving incriminating pictures of McDougall and Kinman and a series of
cards written by McDougall to Kinman, the district began proceedings to
suspend     McDougall     for   violation    of   school   policy.1       McDougall   was
terminated, and her teaching certificate was revoked in 1992.


       School officials arguably were on notice of potential problems
between McDougall and Kinman as early as March 1988, when, during Kinman's
sophomore year of high school, McDougall received an unsatisfactory
evaluation for demonstrating a lack of professionalism in relation to an
incident involving plans to attend a rock concert with Kinman.               Also during
Kinman's sophomore year, her mother contacted the school's assistant vice-
principal and requested that Kinman be removed from McDougall's English
class.     Despite this request, Kinman remained in McDougall's class until
the end of the school year.


       Whitehouse received several reports of the relationship in the fall
of 1989.    First, Tom Grosse, a friend of Kinman's, informed




       1
      The district has a policy against sexual abuse or harassment
of students on the basis of sex. The prohibition extends to any
employee whether 1) he or she is on or off duty; 2) the conduct
occurs on or off the school's property; 3) the student does or does
not welcome or invite the conduct; and 4) the abuse or harassment
occurs within two years of the student leaving the district.


                                            -4-
him that McDougall and Kinman were involved in a sexual relationship.
Then, Susan Paar, the school's guidance counselor, reported a conversation
with Heather Hoffman, another friend of Kinman's, during which Hoffman
informed Paar that Kinman and McDougall were dating.   Carol Pasco, Kinman's
special education teacher, also expressed this concern to Whitehouse.
Finally, Barb Sears, a paraprofessional in Pasco's class, stated that she
was concerned that McDougall was constantly peering into her classroom to
check on Kinman, who was not at the time McDougall's student.


     Grosse also contacted Mackiel on October 16, 1989, informing him both
of the relationship between Kinman and McDougall and of Kinman's attempted
suicide.    After this meeting Mackiel met with Kinman's mother and with
Kinman, and the investigation began.


     After Kinman graduated in May 1990, she renewed her relationship with
McDougall, and it continued until at least August of 1992.    Following her
graduation, Kinman brought this action against the district and against
Whitehouse, Mackiel, and McDougall, individually and in their official
capacities, pursuant to section 1983 and Title IX.2


     When McDougall failed to respond to this action, the district court
entered    a default judgment against her.     That default judgment was
subsequently vacated in order to allow the court to dispose of the case in
its entirety.


     We review a district court's grant of summary judgment de novo,
applying the same standard as the district court and affirming only when
the evidence viewed in the light most favorable to the plaintiff shows the
existence of no genuine issue of




      2
      She also attached a pendent state claim under the Nebraska
Political Subdivisions Tort Claims Act, but she does not appeal the
dismissal of that claim.

                                   -5-
material fact and that the defendants are entitled to judgment as a matter
of law.    United States v. Green Acres Enters., Inc., 86 F.3d 130, 133 (8th
Cir. 1996).


                                II.   Section 1983


        Kinman's   section   1983   action   names    both   the   district   and   the
individual school officials as defendants.           The individual defendants are
liable under section 1983 only if Kinman can prove the following:             1) that
they received notice of a pattern of unconstitutional acts committed by
subordinates;      2) that they demonstrated deliberate indifference to or
tacit authorization of the offensive acts;            3) that they failed to take
sufficient remedial action; and 4) that such failure proximately caused
injury to the plaintiff.      Jane Doe A. v. Special Sch. Dist., 901 F.2d 642,
645 (8th Cir. 1990).


        To establish a claim against the school district, Kinman must show
that an official policy or custom caused her to suffer a constitutional
harm.    Thelma D. v. Bd. of Educ., 934 F.2d 929, 932 (8th Cir. 1991).              Such
a showing requires proof of the existence of a continuing, widespread,
persistent pattern of unconstitutional conduct, as well as deliberate
indifference or tacit authorization and causation.            Jane Doe A., 901 F.2d
at 646.


        The evidence viewed in the light most favorable to Kinman does not
support a finding of either deliberate indifference or tacit authorization
on the part of school officials, or of a pattern of persistent and
widespread unconstitutional practice throughout the school district of
ignoring complaints of student/teacher sexual relationships.            See Jane Doe
A., 901 F.2d at 644, 646 (no section 1983 liability even though school
officials received complaints over the course of two years that bus driver
had used foul language, physically restrained and assaulted children,
kissed a child, placed his hand down boy's pants, and touched boys'




                                        -6-
crotches).   See also Larson v. Miller, 76 F.3d 1446, 1453 (8th Cir. 1996)
(en banc).


     Once alerted to the possibility of a sexual relationship between
Kinman and McDougall, defendants Whitehouse and Mackiel did not turn a
blind eye and do nothing.    Rather, they attempted to monitor Kinman's phone
calls; they interviewed Kinman; they administered two polygraphs to Kinman;
and they confronted McDougall.        Moreover, once they had conclusive proof
of the relationship, they immediately began proceedings to terminate
McDougall and revoke her teaching certification.             Perhaps they could have
or should have acted sooner or done more to ensure the end of the
relationship, but their failure to do so does not constitute deliberate
indifference or tacit authorization.            Thus, the district court correctly
granted summary judgment on the section 1983 claim against the individual
defendants and against the district.


                                   III.   Title IX


     Title IX provides that "no person in the United States shall, on the
basis of sex, . . . be subjected to discrimination under any education
program or activity receiving Federal financial assistance . . . "                  20
U.S.C. § 1681(a).     In Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60
(1992), the Supreme Court recognized in Title IX an implied private cause
of action for money damages in cases of intentional discrimination.


     Kinman's Title IX action is based on the proposition that sexual
harassment is an actionable form of sexual discrimination.                See Meritor
Savings Bank v. Vinson, 477 U.S. 57, 64 (1986).               Courts have generally
separated    sexual   harassment    claims      into   two   categories   --   hostile
environment, and quid pro quo cases.         Quid pro quo harassment arises when
the receipt of benefits or the maintenance of the status quo is conditioned
on acquiescence to




                                          -7-
sexual advances.      Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir.
1995).   Hostile environment sexual harassment occurs when unwelcome sexual
advances, requests for sexual favors, or other verbal or physical conduct
have the purpose or effect of unreasonably interfering with an individual's
performance or creating an intimidating, hostile, or offensive environment.
Id. at 474.


      Kinman's Title IX claim is based on the theory of hostile environment
sexual harassment.      To establish a prima facie case of hostile environment
harassment in the educational context, Kinman must show: 1) that she
belongs to a protected group 2) that she was subject to unwelcome sexual
harassment; 3) that the harassment was based on sex; 4) that the harassment
was sufficiently severe or pervasive so as to alter the conditions of her
education and create an abusive educational environment; and 5) that some
basis for institutional liability has been established.        Seamons v. Snow,
84 F.3d 1226, 1232 (10th Cir. 1996).       The defendants argue that Kinman has
failed to offer evidence sufficient to prove the second, third, and fifth
elements.


      First, the defendants argue that the sexual contact between McDougall
and Kinman was not unwelcome.       This argument is based on the assertion that
Kinman willingly participated in the affair and that she continued to
engage in sexual relations with McDougall following graduation and through
the time of her suit.        We find that a genuine factual dispute remains
regarding this issue.       Kinman states in her affidavit that initially she
did   not   welcome   McDougall's    advances.   Moreover,   this   assertion   is
supported by Kinman's statement that the notion of being gay was so
upsetting to her that it led her to attempt suicide.                 If Kinman's
opposition to the idea of being gay was as strong as she alleges, it is
possible that any advances by a member of her own sex would have indeed
been unwelcome.




                                        -8-
          Furthermore, as the Supreme Court noted in Meritor Savings Bank, the
relevant question is not whether Kinman voluntarily participated in sexual
relations, but rather whether the advances were unwelcome.             477 U.S. at 68.
To distinguish between an actual desire for a relationship on one hand, and
a mere acquiescence to tendered sexual advances on the other, it is
necessary to consider the power disparity between the individuals involved.
The question "presents difficult problems of proof and turns largely on
credibility determinations committed to the trier of fact."               Id.


       Defendants next argue that, as a matter of law, Kinman was not
discriminated against on the basis of her sex, because sexual harassment
between members of the same gender is not actionable.           We recently rejected
this argument in Quick v. Donaldson Company, Inc., No. 95-3387, slip op.
(8th Cir. July 29, 1996), in which we held male employees' harassment of
another male employee to be actionable under Title VII.                We stated that
"[t]he proper inquiry . . . is whether `members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the
other sex are not exposed.'"     Id. at 12 (citing Harris v. Forklift Systems,
Inc., 510 U.S. ___, 114 S. Ct. 367, 372 (1993) (Ginsburg, J., concurring).
We see no reason to apply a different standard under Title IX.                     The
uncontroverted evidence shows that McDougall targeted Kinman because she
was   a   woman.    McDougall directed no similar attentions toward male
students.       Thus, defendants' argument regarding the third element is
without merit.


       Finally, defendants claim that Kinman has failed to offer evidence
to    support   liability   against   the   district    and   school   officials   for
McDougall's actions.        The courts that have discussed the standard of
liability for school districts under Title IX have failed to reach a
consensus regarding the appropriate standard.          Compare, Bolon v. Rolla, 917
F.Supp. 1423 (E.D. Mo. 1996) (holding school district strictly liable for
sexual harassment by its employees) with Rosa H. v. San Elizario Indep.
Sch. Dist., 887 F.




                                        -9-
Supp.    140, 143 (W.D. Texas 1995) (holding school liable for sexual
harassment by its employees only if the district knew or should have known
and negligently failed to take prompt, effective, remedial action) and
Patricia H. v. Berkeley Unified Sch. Dist., 830 F. Supp. 1288, 1297 (N.D.
Cal. 1993) (holding school district liable for teacher's sexual harassment
of student only upon knowing failure to act) and Rowinsky v. Bryan Indep.
School District, 80 F.3d 1006 (5th Cir. 1996) (refusing to hold school
district liable for student-on-student harassment unless the school itself
directly discriminated based on sex).


        The divergence of views on this issue stems in part from the factual
disparity in the cases.        Title IX cases vary in both the type of
discrimination alleged (hostile environment, quid pro quo, sexual abuse,
discriminatory hiring/firing, or some combination) and in the identity of
the perpetrators and victims (teacher/student harassment, student/student
harassment, or school official/teacher harassment).   But even those courts
which have addressed similar fact patterns have varied in their holdings.
Compare Bosley, 904 F. Supp. at 1022 (holding school board liable for
student-on-student harassment if school officials knew of harassment and
intentionally failed to take proper remedial action) with Rowinsky, 80 F.3d
1006 (refusing to hold school district liable for student-on-student
harassment unless the school officials themselves directly discriminated
based on sex -- i.e. responded differently to complaints made by girls than
to those made by boys).


        A number of courts that have addressed the appropriate standard for
school or district liability under Title IX have looked to Title VII for
guidance.     See, e.g., Murray v. New York Univ. College of Dentistry, 57
F.3d 243 (2d Cir. 1995); Bosley v. Kearney R-1 Sch. Dist., 904 F. Supp.
1006, 1022 (W.D. Mo. 1995).   Moreover, the Supreme Court relied upon Title
VII principles and authority in its holding that Title IX authorizes an
award of




                                    -10-
compensatory damages.     Franklin, 503 U.S. at 74-75.


     We recently held that Title VII standards for proving discriminatory
treatment should be applied to employment discrimination cases brought
under Title IX.    Brine v. University of Iowa, Nos. 95-2873/2875/3170/3288,
slip op. at 9-10 (8th Cir. July 19, 1996) (involving sex discrimination
claims brought by dental hygiene faculty against the University).       We now
extend that holding to apply Title VII standards of institutional liability
to hostile environment sexual harassment cases involving a teacher's
harassment of a student.


     The Supreme Court in Meritor Savings declined to set out a generally
applicable standard of liability for employers under Title VII.       477 U.S.
at 72.    Instead, the Court suggested that common law agency principles
should guide courts in determining employer liability on a case-by-case
basis.    Id.     For example, when a supervisor uses the power delegated
specifically to him by his employer to discriminate on the basis of sex,
that employee's actions should be imputed to the employer.   Id. at 70.    On
the other hand, in a hostile environment sexual harassment case, "the usual
basis for a finding of agency will often disappear."     Id. at 71.   In such
cases, the employer should not be held liable unless the employer itself
has engaged in some degree of culpable behavior.   For example, the employer
could be held liable if it knew or should have known of the harassment and
failed to take appropriate remedial action.     Callanan v. Runyun, 75 F.3d
1293, 1296 (8th Cir. 1996).


     We   hold that the "knew or should have known" standard is the
appropriate standard to apply in a case such as this one involving a
teacher's hostile environment harassment of a student.      In light of this
standard, we find that a factual dispute remains regarding exactly when the
defendants obtained knowledge of the relationship between McDougall and
Kinman and whether, once they obtained this




                                    -11-
knowledge, they took reasonable steps to remedy the situation.


                               V.   Conclusion


     We affirm the district court's grant of summary judgment on Kinman's
section 1983 claim.   We reverse the grant of summary judgment on Kinman's
Title IX claim and remand the case to the district court for trial on that
cause of action.


     A true copy.


           Attest:


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




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