Bruneau decision [forwarded]

Linda Purrington (
Tue, 05 Jan 1999 11:56:52 -0800

Student's Harassment Claim Is Dismissed

By Deborah Pines
New York Law Journal
Tuesday, January 5, 1999

A federal appeals panel has upheld a 1996 jury verdict rejecting a landmark
lawsuit in which a sixth-grade girl sought to hold her rural upstate
New York school district liable for failing to remedy a hostile environment
created by other students' sexual harassment.

The panel of the U.S. Court of Appeals for the Second Circuit found no error
sufficient to upset the Binghamton, N.Y., jury finding that the South
Kortright Central School District is not liable for the teasing, bra strap
snapping, and other unwanted touching endured by girls like the plaintiff, Eve
Bruneau, from boys during the 1993-1994 school year.

The panel also weighed in on two divisive legal issues in Bruneau v. South
Kortright Central School District, 97-7495, issued Dec. 31. First, it
found the exclusive remedy for claims like Ms. Bruneau's lies in the statute
barring discrimination by institutions that receive federal funds, Title IX of
the Education Amendments of 1972, and not the broader federal civil rights law,
42 USC 1983. Second, the court implicitly joined two other circuits that have
found student-on-student harassment actionable under Title IX. An Eleventh
Circuit ruling, finding only faculty-on-student
harassment actionable, is being reviewed by the U.S. Supreme Court.

Brooks R. Burdette, of Schulte Roth & Zabel, a lawyer for Miss Bruneau, who is
now 17 and attending a different school in Massachusetts, said his client's
family has not decided whether to appeal.

He said he was disappointed by the finding that "Title IX extinguished her 1983
claims" because 1983, in many respects, offers more favorable
terms for plaintiffs. As one example, he said, Title IX requires proof of a
"very high level of intentionality" by defendants, while 1983 plaintiffs may
claim in certain circumstances willful indifference or a failure to properly
train employees.

Frank W. Miller, of Ferrara, Fiorenza, Larrison, Barrett & Reitz, in East
Syracuse, a lawyer for the prevailing South Kortright Central School District,
praised the ruling but said it also sounds a cautionary note for school
districts. "This plaintiff didn't prove her case, but that's not to say given
another set of facts, that would happen again now that courts have recognized a
cause of action for peer-on-peer harassment."

Miss Bruneau attracted national headlines when she filed suit in 1996 against
South Kortright, a 400-student district located about 20 miles northeast of
Oneonta, N.Y. Hers was believed the first such suit in New York and one of the
first in the country blaming a school district for sexual harassment by students
against other students.

Her suit claimed the school district had failed to take appropriate steps when
she and her female classmates complained about boys calling them sexually
derisive names like bitches, prostitutes, whores and lesbians. She further
claimed the girls experienced bra snapping, hair pulling, spitting, shoving of
paper down their blouses and other unwanted touching.

Before trial, Northern District Chief Judge Thomas J. McAvoy dismissed her 1983
claim, finding Title IX to be her exclusive remedy. After a trial before a jury
and Northern District Judge Lawrence Kahn, the jury decided against Ms. Bruneau.
Testimony included claims by teachers and administrators that they had tried to
halt any harassment.

On appeal, Ms. Bruneau's lawyers, with backing from amicus briefs filed by the
federal government and a broad array of women's groups, challenged the dismissal
of the 1983 claim. They also attacked various trial rulings including jury
instructions which did not say the school district's corrective action had to
have been "prompt" to avoid liability.

The Second Circuit upheld the lower court in all respects.

Writing for the court, Second Circuit Judge Richard J. Cardamone acknowledged
the boys' actions were "no doubt hurtful" but the record revealed no trial
errors warranting the verdict's reversal.

His ruling was joined in by Judge Fred I. Parker. Judge James L. Oakes concurred

Siding with two other circuits in a position opposed by three circuits, Judge
Cardamone found "it was Congress's scheme that a claimed violation of Title IX
be pursued under Title IX and not section 1983."

Judge Cardamone found no problem with the jury instruction's phrasing requiring
the plaintiff to prove the school district "failed to take corrective action"
without using the word "prompt."

Although the circuit had previously approved the use of the word "prompt" in a
jury charge, that "does not mean the word must be inserted in every jury
charge," he wrote. He noted other cases where the word "appropriate" was used to
describe remedial action and suggest that action must be prompt.

In addition to Mr. Burdette, William H. Gussman, Jr. of Schulte Roth and Zael
and Merrick T. Rossein of Steel, Bellman, Ritz & Clark, represented Ms. Bruneau.

Mr. Miller was joined by Benjamin J. Ferrara and Craig M. Atlas of Ferrara,
Fiorenza in East Syracuse, in representing the school district.

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