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A federal sexual harassment suit brought by a college student whose professor allegedly compared her repeatedly to Monica Lewinsky can proceed under both the Title IX educational equality statute and the civil rights provisions of 42 U.S.C. Section 1983, a judge with the U.S. District Court for the Northern District of New York has ruled. U.S. District Judge David N. Hurd declined to follow the reasoning of two federal Courts of Appeal and instead followed a Northern District trial-level colleague in finding that a Section 1983 action against an individual is not subsumed by Title IX. The suit giving rise to this decision involves a foreign-born woman of Israeli descent, Inbal Hayut, who enrolled in the State University of New York at New Paltz as a political science major for the 1998-99 academic year. Hayut alleges that one of her teachers, Professor Alex Young, sexually harassed her throughout the fall semester by continuously referring to her in class as “Monica Lewinsky,” and by making comments that associated her with the notorious conduct of the former White House intern. Those comments, according to the decision, referenced President Clinton and a cigar and were made in front of the entire class. Hayut contends that she asked Young to stop, and when he persisted in making public remarks, approached his superiors, who she says basically ignored her. “Because of Professor Young’s harassment, Hayut was overcome with shame and humiliation,” Judge Hurd wrote. “She was unable to concentrate, and her academic performance was adversely affected.” Hurd said Hayut barely passed her courses in the fall semester, received failing grades for the spring semester, and after withdrawing from SUNY New Paltz, had to complete a year of remedial work before she was allowed to matriculate to another university. She sued the institution, Young and several of his supervisors asserting various causes of action, including violations of the Title IX Educational Amendments of 1972 and for deprivation of her federal constitutional rights under Section 1983. Under Title IX, “no person in the United States 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.” Section 1983 provides as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress.” The defendants moved to dismiss, alleging that while Young’s remarks may have been insensitive or politically incorrect, they did not give rise to an action under any of the theories advanced by Hayut. Judge Hurd disagreed. “The substance of plaintiff’s allegations of sexual harassment is that Professor Young, in front of the entire class, continually referred to her as ‘Monica Lewinsky’ throughout the fall 1998 semester and made numerous comments. … Those comments, taken in the context of the White House sex scandal, would be the equivalent of Professor Young telling plaintiff’s classmates that plaintiff would give, or was giving, oral sex to older men in positions of authority,” Hurd said. He added in a footnote that the “parallel between ‘intern’ Lewinsky and ‘student’ Hayut is obvious.” Hurd said the timing of the remarks, made at the height of the scandal, is “a significant consideration” since they were made by an older man in a position of influence and control over Hayut’s future. Young was one of a small number of political science professors at SUNY New Paltz, and in order to fulfill her degree requirements, Hayut would need to pass his courses. Hurd said the sufficiency of Hayut’s allegations is not affected by the “mere fact that these comments were not accompanied by requests for sexual favors.” From a legal standpoint, the critical portion of Hurd’s decision in Hayut v. State University, 00-CV-0725, addressed the unresolved question of whether a Title IX claim precludes a plaintiff from pursuing a statute-based Section 1983 claim. The U.S. Supreme Court has not definitively settled the matter, although it has provided some guidance, and lower courts remain divided. In determining whether a statute subsumes Section 1983 claims predicated on statutory rights, the Supreme Court applies the comprehensiveness test it crafted in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981). Under that test, a determination on the enforceability of a statute through Section 1983 is based on Congressional intent; if Congress provided a comprehensive remedy in the statute itself, it is presumed that it foreclosed the use of Section 1983 to enforce the provisions of the statute in question. Using that analysis, the 2nd U.S. Circuit Court of Appeals concluded in Bruneau v. South Kortright Central School District, 163 F3d 749 (1998), that “given Title IX’s administrative and judicial remedies, we believe it was Congress’ scheme that a claimed violation of Title IX be pursued under Title IX and not Section 1983.” However, the Bruneau court made clear that its decision applied only to non-individual defendants, and did “not address the extent to which Title IX subsumes a Section 1983 claim against the individual defendants.” Northern District Judge Norman A. Mordue addressed the lingering issue involving individuals last year in Cinquanti v. Tompkins-Cortland Community College, 99-CV-1478. In that case, Mordue, basing his analysis on Bruneau, found that Title IX cannot preclude a Section 1983 action against individual defendants, since they are not subject to suit under Title IX. That position is at odds with at least two Circuit Court decisions: the 1990 opinion of the 3rd Circuit in Pfeiffer v. Marion Center Area School District, 917 F.2d 779, and the 1996 ruling by the 7th Circuit in Waid v. Merrill Area Public Schools, 91 F3d 857. Regardless, Judge Hurd adopted the reasoning of Mordue and held that since the individual defendants in Hayut are “not amenable to suit under Title IX … it cannot be said that Title IX provides plaintiff’s comprehensive remedy as against the individual defendants.” Although Hurd dismissed most of Hayut’s claims, he is allowing the matter to proceed as a Title IX case against the university, as a Section 1983 equal protection suit against Young and three supervisors, and as a ministerial neglect action against the supervisors. He also declined to dismiss a state constitutional tort (equal protection) and a New York Human Rights Law complaint against Young and the supervisors. PRACTICAL IMPACT The practical impact of the decision, in the Hayut case in particular and in others where courts follow the rationale of Judges Mordue and Hurd, may be that it allows plaintiffs to avail themselves of a lower burden of proof. Section 1983 generally requires a showing of gross negligence for establishing supervisory liability; in contrast, Title IX requires both actual knowledge plus deliberate indifference. Appearing were William Martin and Lisa Fern Colin, of the Colin Law Office in White Plains, N.Y., for Hayut; Assistant Attorney General Deborah A. Ferro for the State University defendants; and Kenneth J. Kelly and Lauren A. Malanga, of Epstein, Becker & Green, for Professor Young. Martin said he is anticipating an appeal on the issue of Section 1983 versus Title IX.

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