Doe ex rel. Doe v. Petaluma City School District

dissenting:

The majority opinion concludes that Hom-righouse, a school counselor, is entitled to qualified immunity because when he failed to *1453 stop students from sexually harassing Jane Doe, Title IX did not clearly establish a school official’s duty to stop peer-to-peer sexual harassment. In reaching this conclusion, the majority opinion states: “[N]o case has been cited ... holding that a school counsel- or has any duty to prevent Doe’s peer sexual harassment_” 1 By requiring strict factual similarity between pre-existing case law and the present case, the majority improperly dismisses case law that clearly indicated a school official’s duty to stop peer-to-peer sexual harassment. Accordingly, I respectfully dissent.

The majority opinion does acknowledge that “specific binding precedent is not required to show that a right is clearly established for qualified immunity purposes.” Yet, in summarily brushing aside relevant ease law that clearly established a school official’s duty’to stop teachers from sexually harassing their students, and an employer’s duty to stop employees from sexually harassing their co-workers, the majority opinion in effect conditions the denial of…

Opinion by Chief Judge WALLACE; Dissent by Judge PREGERSON.

Homrighouse appeals from a district court order denying him qualified immunity. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . Mendocino Environmental Ctr. v. Mendocino County, 14 F.3d 457, 460 (9th Cir.1994) (denial of qualified immunity appealable on refusal to grant motion to dismiss). We reverse.

*1449 I

Beginning in September 1990, Doe reported to Homrighouse, her school counselor, that she was being harassed by some of her male and female peers. The harassment took the form of sexual comments and lewd writings about Doe on the restroom walls. Homrighouse states that he summoned female students in groups to his office to discuss the unacceptable behavior, and advised Doe about how to work out the problems. Doe alleges that Homrighouse also told her that “boys will be boys” and never told Doe’s parents or Doe that the school had a Title IX policy or a Title IX officer, who was responsible for enforcement. It is not contended that Homrighouse sexually harassed Doe. Rather, it is Homrighouse’s inaction that Doe argues violated her rights under Title IX and thereby gives rise to a cause of…