United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
Jane Doe H. attended Haskell Indian Nations University in
Lawrence, Kansas from 2014 to 2016. Haskell is a unique
federally-owned university, providing tuition-free higher
education to members of recognized Indian
Nations.Doe brings the present action against
Haskell, the United States, the Secretary of the Department
of Interior, and two individual Haskell officers and one
plaintiff alleges in her complaint that she was subjected to
a sexual assault by two male students at a dormitory in
November of 2014. After an investigation, the male students
were criminally charged. (Dkt. 1, ¶¶ 16-18).
Haskell provided plaintiff counseling and support for the
next sixteen months, and the complaint identifies no actions
by defendants during that period which support her claims for
relief. (Id., at ¶¶ 21-22).
March 31, 2016, the complaint alleges that plaintiff
experienced a physical altercation with a third male student.
The male student reported that plaintiff assaulted him.
Plaintiff alleges that university officers pressured the male
student to file Title IX charges against her, even though the
officers did or should have known that she was the victim of
the altercation. (Id., at ¶¶ 26-27).
administrators issued an order to plaintiff that she should
have no contact with the male student. Plaintiff alleges that
the she was constructively expelled and banned from campus
without any additional investigation. (Id., at
¶¶ 32-33). Plaintiff alleges she was not allowed
any opportunity to oppose this decision prior to the
constructive expulsion. Plaintiff withdrew from the
university and did not engage in any subsequent appeal or
procedural opposition to the administrator's actions.
Plaintiff filed the present action on October 24, 2016.
complaint, the plaintiff raises three claims against the
Secretary, Haskell, and the United States: (Count 1) that she
was subjected to a hostile educational environment at Haskell
in violation of Title IX; (Count 2), that they violated her
rights under Title IX by retaliating against her; and (Count
6), that they violated her rights under the Rehabilitation
Act by constructive expelling, even though they knew she was
mentally traumatized by the 2014 assault. Against the
individual defendants, plaintiff brings Bivens
claims for (Count 3) deprivation of due process,
(Count 4) violation of her equal protection rights, and
(Count 5) violated her privacy rights by providing copies of
her Haskell records, without a subpoena, to defendants'
counsel during the June, 2016, trial of the students involved
in the alleged 2014 assault.
the defendants have moved to dismiss the action. Citing
U.S. Dep't of Transp. v. Paralyzed Veterans of
Am., 477 U.S. 597, 605-06 (1986), the
government argues that the plaintiff's claims
against it are precluded by sovereign immunity, and
alternatively that plaintiff's Title IX and
Rehabilitation Act claims are inapplicable, since Haskell is
not an institution receiving federal assistance within the
meaning of those statutes. The individual defendants argue
that plaintiff's claims are not appropriate
Bivens actions, and alternatively that defendants
are protected by qualified immunity. All defendants argue
that, even if plaintiff's claims are otherwise properly
before the court, her allegations fail to support the claims
plaintiff responds to the government's argument by
contending that it has misapprehended Paralyzed
Veterans, and focuses on the Court's reference in
that case to its earlier decision in Grove City College
v. Bell, 465 U.S. 555 (1984). According to the
plaintiff, Paralyzed Veterans merely held that a
private entity (an airline) receiving an indirect benefit
from federal airport construction assistance, was outside the
reach of Section 504 of the Rehabilitation Act. She contends
that Grove City, which involved student financial
assistance under Title IX, is the more relevant decision.
Paralyzed Veterans, the Court rejected an argument
by the plaintiffs that Grove City supported
their position by distinguishing the nature of the federal
assistance in the earlier decision:
This argument confuses intended beneficiaries with
intended recipients. While we observed in Grove
City that there is no “distinction between direct
and indirect aid” and that “[t]here is no basis
in the statute for the view that only institutions that
themselves apply for federal aid or receive checks directly
from the Federal Government are subject to regulation,
” we made these statements in the context of
determining whom Congress intended to receive the federal
money, and thereby be covered by Title IX. 465 U.S., at 564,
104 S.Ct., at 1217. It was clear in Grove City that
Congress' intended recipient was *607 the college, not
the individual students to whom the checks were sent from the
Government. It was this unusual disbursement pattern of money
from the Government through an intermediary (the students) to
the intended recipient that caused us to recognize that
federal financial assistance could be received indirectly.
While Grove City stands for the proposition that
Title IX coverage extends to Congress' intended
recipient, whether receiving the aid directly or indirectly,
it does not stand for the proposition that federal coverage
follows the aid past the recipient to those who merely
benefit from the aid. In this case, it is clear that the
airlines do not actually receive the aid; they only benefit
from the airports' use of the aid.
477 U.S. at 605-06.
court finds that Grove City does not support an
exercise of jurisdiction over the plaintiff's claims in
the present action. First, in Grove City the Court
had stressed the distinct nature of the federal assistance in
question - Basic Education Opportunity Grants (BEOGs) which
were made payable to students but which inevitably flowed
into the defendant college's financial aid program.
“The BEOG program was designed, not merely to increase
the total resources available to educational institutions,
but to enable them to offer their services to students who
had previously been unable to afford higher education.”
Grove City, 465 U.S. at 573. The Court determined
under the circumstances of the case that the government could
enforce Title IX's certification requirements, but only
against the college's financial aid program, not against
the college itself:
It is true, of course, that substantial portions of the BEOGs
received by Grove City's students ultimately find their
way into the College's general operating budget and are
used to provide a variety of services to the students through
whom the funds pass. However, we have found no persuasive
evidence suggesting that Congress intended that the
Department's regulatory authority follow federally aided
students from classroom to classroom, building to building,
or activity to activity…. We conclude that the receipt
of BEOGs by some of Grove City's students does not
trigger institution-wide coverage under Title IX. In purpose
and effect, BEOGs represent federal financial assistance to
the College's own financial aid program, and it is that
program that may properly be regulated under Title IX.
Id. at 573-74.
present case, the financial assistance provided by the
federal government is far more indirect than in Grove
City. Haskell is a unique national institution of higher
learning for Native Americans. It provides a tuition-free
education for members of indigenous Nations, and any federal
assistance takes the form of Pell Grants or other assistance
for limited expenses, such as books and lodging, which
students may otherwise incur.
importantly for present purposes, Grove City
involved an effort by the government to enforce Title
IX's certification requirement against a private college.
As a result, the decision provides no guidance as to whether
Congress has waived the federal government's sovereign
immunity as to actions for monetary damages arising under
basic rule of federal sovereign immunity is that the United
States cannot be sued at all without the consent of
Congress.” Block v. North Dakota, 461 U.S.
273, 287, (1983). Such a waiver of sovereign immunity must be
“unequivocally expressed” in statutory text.
See, e.g., Lane v. Peña, 518 U.S. 187, 192, 116
S.Ct. 2092, 135 L.Ed.2d 486 (1996); United States v.
Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011,
117 L.Ed.2d 181 (1992); Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435
(1990). Any ambiguities in the statutory language are to be
construed in favor of immunity. United States v.
Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d
608 (1995). If there is any doubt, waiver will not be found
because waiver cannot be implied, assumed, or based upon
speculation, surmise, or conjecture. United States v.
King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52
separate statute, Congress has explicitly stated that
“[a] State shall not be immune under the Eleventh
Amendment of the United States from suit in federal
court” for violations of Title IX and Section 504 of
the Rehabilitation Act. 42 U.S.C. § 2000d-7(a)(1).
See, e.g., Franks v. Ky. Sch. for the Deaf, 142 F.3d
360, 363 (6th Cir. 1998) (“Congress successfully
abrogated the states' Eleventh Amendment immunity from
Title IX lawsuits”). But Congress has not explicitly
waived sovereign immunity by the federal government for such
“Title IX of the Education Amendments of 1972, Section
504 of the Rehabilitation Act, Title II of the Americans with
Disabilities Act, and the False Claims Act do not waive the
sovereign immunity of the United States.” Wije v.
Texas Woman's Univ., No.
4:14-CV-571-ALM-CAN, 2015 WL 9872534, at *8 (E.D. Tex. Dec.
22, 2015), report and recommendation adopted, No.
4:14-CV-571, 2016 WL 231151 (E.D. Tex. Jan. 19, 2016) (as to
his claims under “Title IX of the Education Amendments
of 1972 [and] Section 504 of the Rehabilitation Act …
against the United States Department of Education …
Plaintiff has not satisfied his burden to demonstrate the
immunity of the United States has been (or could have been
Lane, 518 U.S. at 192, the Supreme Court concluded
that “[t]he clarity of expression necessary to
establish a waiver of the Government's sovereign immunity
against monetary damages for violations of § 504 is
lacking.” The Court stressed that Congress explicitly
waived federal sovereign immunity in 29 U.S.C. § 791 for
Rehabilitation Act cases charging disability in employment
discrimination under Section 501. In contrast, in the
remedies provision for Section 504 cases,
Congress decreed that the remedies available for violations
of Title VI would be similarly available for violations of
§ 504(a) “by any recipient of Federal assistance
or Federal provider of such assistance.” 29 U.S.C.
§ 794a(a)(2). This provision makes no mention whatsoever
of “program[s] or activit[ies] conducted by any
Executive agency, ” the plainly more far-reaching
language Congress employed in § 504(a) itself. Whatever
might be said about the somewhat curious structure of the
liability and remedy provisions, it cannot be disputed that a
reference to “Federal provider[s]” of financial
assistance in § 505(a)(2) does not, without more,
establish that Congress has waived the Federal
Government's immunity against monetary damages awards
beyond the narrow category of § 504(a) violations
committed by federal funding agencies acting as such-that is,
by “Federal provider[s].”
Id. at 192-93.
Court also rejected the plaintiff's argument resting on
earlier decisions such as Franklin v. Gwinnett County
Public Schools, 503 U.S. 60 (1992) recognizing an
implied right of action under Title IX against the recipients