276 F.3d 52 (1st Cir.

2002)

KATE FRAZIER ET AL., Plaintiffs, Appellants,

v.
FAIRHAVEN SCHOOL COMMITTEE ET AL., Defendants,
Appellees.
No. 01-1130

United States Court of Appeals For the First Circuit

Heard Nov. 5, 2001
Decided January 9, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS. Hon. Reginald C. Lindsay, U.S.
District Judge[Copyrighted Material Omitted][Copyrighted Material
Omitted][Copyrighted Material Omitted]
Michael W. Turner for appellants.
Gerald Fabiano, with whom Pierce, Davis & Perritano, LLP was on brief,
for appellees.
Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez,
Circuit Judge.
SELYA, Circuit Judge.

This appeal requires us to decide three issues of first impression in this circuit.
Answering a question that has divided our sister circuits, we hold that a plaintiff
who alleges that local educational officials have flouted her right to a free and
appropriate public education may not bring suit for money damages under 42
U.S.C. 1983 without first exhausting the administrative process established
by the Individuals with Disabilities Education Act (IDEA). We next conclude
that same-sex discrimination is actionable under Title IX of the Educational
Amendments of 1972 (although, due to shortcomings in the amended
complaint, the district court's dismissal of that claim nonetheless must stand).
Finally, we hold that the Family Educational Rights and Privacy Act (FERPA)
does not confer a private right of action upon either an aggrieved student or her

parents. The upshot is that we affirm the district court's dismissal of the
plaintiffs' amended complaint.
I. BACKGROUND
2

We approach this appeal mindful that we must accept as true all well-pleaded
factual averments contained in the operative pleading (the plaintiffs' amended
complaint) and indulge all reasonable inferences in favor of the pleading
parties. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996); see also Fed. R.
Civ. P. 12(b)(6).

We start by identifying the principal players. The plaintiffs in this case are Kate
Frazier (a young woman alleged to suffer from learning disabilities) and her
parents, Bradford and Judith Frazier. Their suit, commenced on January 15,
1999, grows out of Kate's matriculation at, and her troubled five-year odyssey
through, high school in a bucolic southeastern Massachusetts community (the
town of Fairhaven). The defendants are the Fairhaven School Committee, the
superintendent of schools, the principal of Fairhaven High School, and two
mid-level school administrators (a guidance counselor and a discipline matron).

The lower court has written a thoughtful, closely reasoned opinion in which it
has catalogued the plaintiffs' allegations in considerable detail. See Frazier v.
Fairhaven Sch. Comm., 122 F. Supp. 2d 104, 106-08 (D. Mass. 2000). It would
be pleonastic to repeat that recital here. Thus, we proceed directly to the issues
that confront us, referring those who hunger for factual context to the district
court's account.

Insofar as is pertinent here, the amended complaint asserts three claims arising
under federal law: (1) a claim that the defendants frustrated Kate's right to a
free and appropriate public education and, therefore, are liable for money
damages under 42 U.S.C. 1983; (2) a claim that the high school's discipline
matron sexually harassed Kate during school hours and, therefore, that the
defendants are liable for money damages under Title IX; and (3) a claim that
the defendants infringed Kate's right to privacy anent her school records and,
therefore, that they are liable for money damages under FERPA. After some
preliminary skirmishing (not material here), the defendants moved to dismiss
the amended complaint on the ground that it failed to state claims upon which
relief could be granted. Fed. R. Civ. P. 12(b)(6). The district court dismissed
the federal claims with prejudice. Frazier, 122 F. Supp. 2d at 111-14. At the
same time, the court declined to exercise supplemental jurisdiction over the
plaintiffs' state-law claims and dismissed those claims without prejudice. Id. at

114. This timely appeal ensued. In it, the plaintiffs challenge the lower court's
disposition of the three federal claims,1 but do not contest the dismissal of their
state-law claims.
II. THE IDEA-BASED SECTION 1983 CLAIM
6

The statutory engine that drives the plaintiffs' principal claim is 42 U.S.C.
1983. This statute provides in pertinent part that "[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage . . . , 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." Properly construed, section 1983 "supplies a
private right of action against a person who, under color of state law, deprives
another of rights secured by the Constitution or by federal law." Evans v.
Avery, 100 F.3d 1033, 1036 (1st Cir. 1996).

To maintain such a cause of action, a plaintiff first must allege official conduct,
that is, the occurrence of some act or omission undertaken under color of state
law. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir.
1996). Here, the plaintiffs easily satisfy this requirement: the defendants are
officials or employees of a public school system, and all of them admittedly
were acting under color of Massachusetts law. The plaintiffs also must allege
that the defendants' acts or omissions deprived them of a federally-secured
right. Baker v. McCollan, 443 U.S. 137, 142 (1979); Nieves v. McSweeney,
241 F.3d 46, 53 (1st Cir. 2001). To meet this requirement, the plaintiffs posit
that federal law guaranteed Kate a free and appropriate public education and
that the defendants' actions deprived her of that entitlement. 2

The plaintiffs' premise is sound: the IDEA guarantees a free and appropriate
public education to all children with disabilities. 20 U.S.C. 1400(d)(1)(A). To
realize that promise, the IDEA imposes a set of procedural safeguards upon
state and local educational agencies that receive federal grants earmarked for
special education and related services. See id. 1411, 1415. As a recipient of
such federal funds, Fairhaven High School was bound by the statutory
conditions that Congress attached to the grants. Since the IDEA violations
alleged by the plaintiffs all transpired while Kate Frazier was a student
attending Fairhaven High School, the plaintiffs have brought themselves within
the IDEA's reach.

The plaintiffs' conclusion -- that an IDEA violation can ground a section 1983
claim even without exhaustion of administrative remedies -- is considerably

more problematic. To address this aspect of the case, we must explore the
anatomy of the IDEA. We then consider the necessity for exhaustion.
10

A. The Statutory Scheme.

11

The IDEA is a comprehensive statutory scheme enacted by Congress "to ensure

that all children with disabilities have available to them a free appropriate
public education that emphasizes special education and related services . . . ;
[and] that the rights of children with disabilities and parents of such children are
protected." Id. 1400(d)(1)(A)-(B). To that end, the IDEA provides that public
school systems "shall establish and maintain procedures . . . to ensure that
children with disabilities and their parents are guaranteed procedural safeguards
with respect to the provision of free appropriate public education by such
agencies." Id. 1415(a). The IDEA contains a panoply of procedural
safeguards designed to assure that parents will have meaningful input into
decisions that affect the education of children with special needs. These include
the right of parents to examine all records related to their child, to participate in
meetings regarding the identification, evaluation, and educational placement of
their child, to obtain an independent educational evaluation of their child, and to
receive prior written notice whenever an educational agency proposes (or
refuses) to change their child's placement or program. Id. 1415(b).

12

The IDEA also provides parents with an opportunity to lodge formal

complaints "with respect to any matter relating to the identification, evaluation,
or educational placement of the child, or the provision of a free appropriate
public education to such child." Id. 1415(b)(6). A complaining parent has
recourse to an impartial due process hearing conducted by either the local or
state educational agency (and if the hearing is conducted at the local level, the
parent may then appeal to the state agency). Id. 1415(f)-(g). In Massachusetts,
the Department of Education has created the Bureau of Special Education
Appeals (BSEA) and empowered it to handle such appeals through mediations
and hearings. See Mass. Regs. Code tit. 603, 28.08.

13

The IDEA permits any party who is dissatisfied with the outcome of the due
process hearing to bring suit in state or federal court. 20 U.S.C. 1415(i)(2).
But that right of action is carefully circumscribed. As a condition precedent to
its exercise, an aggrieved party must satisfy the IDEA's exhaustion provision.
This provision states that:

14

Nothing in [the IDEA] shall be construed to restrict or limit the rights,

procedures, and remedies available under the Constitution, the Americans with

Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other

Federal laws protecting the rights of children with disabilities, except that
before the filing of a civil action under such laws seeking relief that is also
available under [subchapter II of the IDEA], the procedures under subsections
(f) and (g) of this section shall be exhausted to the same extent as would be
required had the action been brought under this subchapter.
15

Id. 1415(l). This requirement is not limited to claims based directly upon
violations of the IDEA. The exhaustion principle "applies even when the suit is
brought pursuant to a different statute so long as the party is seeking relief that
is available under subchapter II of IDEA." Rose v. Yeaw, 214 F.3d 206, 210
(1st Cir. 2000). Subchapter II of the IDEA includes, in pertinent part, the
procedural safeguards set forth in section 1415.

16

The requirement that plaintiffs exhaust administrative remedies available under

the IDEA is not absolute. For instance, "[a] plaintiff does not have to exhaust
administrative remedies if she can show . . . that the administrative remedies
afforded by the process are inadequate given the relief sought." Id. at 210-11;
see also Honig v. Doe, 484 U.S. 305, 327 (1988) (holding, under predecessor
statute, that "parents may bypass the administrative process where exhaustion
would be futile or inadequate"); 121 Cong. Rec. 37,416 (1975) (remarks of
Sen. Williams) ("[E]xhaustion of the administrative procedures . . . should not
be required for any individual complainant filing a judicial action in cases
where such exhaustion would be futile either as a legal or practical matter.").
Nevertheless, the IDEA's exhaustion requirement remains the general rule, and
a party who seeks to invoke an exemption bears the burden of showing that it
applies. See Honig, 484 U.S. at 326-27.

17

The plaintiffs acknowledge that they have not pursued administrative remedies.
They view this as inconsequential. Their argument for an exemption from the
exhaustion requirement, adroitly distilled by the district court, see Frazier, 122
F. Supp. 2d at 109, runs along the following lines. The amended complaint
does not rely upon the IDEA, but, rather, upon 42 U.S.C. 1983 -- and it seeks
relief exclusively in the form of money damages. Seizing on the fact that the
array of remedies available under the IDEA does not include money damages,
see Sellers v. Sch. Bd., 141 F.3d 524, 525 (4th Cir. 1998); Heidemann v.
Rother, 84 F.3d 1021, 1033 (8th Cir. 1996); Crocker v. Tenn. Secondary Sch.
Athletic Ass'n, 980 F.2d 382, 386 (6th Cir. 1992), the plaintiffs argue that
pursuing their claim through the IDEA's administrative process would be a
waste of time. Rather, they should be allowed to forgo exhaustion and bring
their section 1983 claim directly before a federal district court.

18

The defendants demur. They insist that the plaintiffs should be required to run
the administrative gauntlet established by the IDEA to the same extent as if
they originally had brought suit under that statute, notwithstanding that the
plaintiffs seek only money damages. The defendants note that the statutory
scheme hinges on facilitating the in-kind delivery of educational services, and
warn that granting the plaintiffs' request would create an "opt-out" device,
allowing future plaintiffs to bypass the IDEA's administrative procedures at
will and to substitute monetary damages for the educational assistance that
Congress intended to bestow upon handicapped children. The parties thus join
issue: to exhaust or not to exhaust -- that is the question.

19

B. The Necessity for Exhaustion.

20

The question of whether a plaintiff who seeks only money damages is required
to exhaust administrative remedies before instituting a section 1983 claim
predicated on a violation of the IDEA is one of novel impression in this circuit.
Five other courts of appeals previously have grappled with this question. Three
of them have permitted plaintiffs who seek only money damages to proceed
with their section 1983 claims without first exhausting the IDEA's machinery.
See Covington v. Knox County Sch. Sys., 205 F.3d 912, 917 (6th Cir. 2000);
Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275 (9th Cir. 1999); W.B. v.
Matula, 67 F.3d 484, 495-96 (3d Cir. 1995). Two other courts have reached the
opposite conclusion, holding squarely that plaintiffs may not bypass the IDEA's
administrative process merely by limiting their prayers for relief to money
damages. See Charlie F. v. Bd. of Educ., 98 F.3d 989, 991-92 (7th Cir. 1996);
N.B. v. Alachua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996) (per
curiam).

21

In addressing this problem, we think that it is useful to reflect upon the general
rationale that underlies exhaustion requirements in administrative regimes:

22

In the administrative state, exhaustion of administrative remedies is generally

required. This requirement is more than a matter of form. Insisting on
exhaustion forces parties to take administrative proceedings seriously, allows
administrative agencies an opportunity to correct their own errors, and
potentially avoids the need for judicial involvement altogether.

23

P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 104 (1st Cir. 1997) (citations
and internal quotation marks omitted). The IDEA fits comfortably into this
general pattern. Congress constructed the law on the premise that plaintiffs
would be "required to utilize the elaborate administrative scheme established by

the [IDEA] before resorting to the courts to challenge the actions of the local
school authorities." N.B., 84 F.3d at 1378 (citation omitted). That makes sense
because exhaustion "enables the [educational] agency to develop a factual
record, to apply its expertise to the problem, to exercise its discretion, and to
correct its own mistakes, and is credited with promoting accuracy, efficiency,
agency autonomy, and judicial economy." Christopher W. v. Portsmouth Sch.
Comm., 877 F.2d 1089, 1094 (1st Cir. 1989) (discussing predecessor statute).
24

Indeed, special benefits adhere to the exhaustion requirement in the IDEA

context. The IDEA's administrative machinery places those with specialized
knowledge -- education professionals -- at the center of the decision making
process, entrusting to them the initial evaluation of whether a disabled student
is receiving a free, appropriate public education. These administrative
procedures also ensure that educational agencies will have an opportunity to
correct shortcomings in a disabled student's individualized education program
(IEP). See Charlie F., 98 F.3d at 992 (explaining that an animating principle of
the IDEA is that "educational professionals are supposed to have at least the
first crack at formulating a plan to overcome the consequences of educational
shortfalls"). This too makes sense because the problems attendant to the
evaluation and education of those with special needs are highly ramified and
demand the best available expertise.

25

The reliance of courts upon the detailed evidentiary record developed during
the due process hearing further underscores the importance of the IDEA's
administrative procedures. The statutory requirement that the reviewing court
"shall receive the records of the administrative proceedings," 20 U.S.C.
1415(i)(2)(B)(i), means that the court must give due weight to those
proceedings. See Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982) (decided
under identically worded provision in predecessor statute). Put another way, the
provision of judicial review is "by no means an invitation to the courts to
substitute their own notions of sound educational policy for those of the school
authorities which they review." Id. Thus, judicial review in this type of case
"falls well short of complete de novo review." Lenn v. Portland Sch. Comm.,
998 F.2d 1083, 1086 (1st Cir. 1993). Allowing plaintiffs to bypass the IDEA's
administrative process en route to state or federal court disrupts this carefully
calibrated balance and shifts the burden of fact finding from the educational
specialists to the judiciary. That phenomenon is directly at odds with the
method of the IDEA: "[t]o allow parents to come directly to federal courts will
render the entire scheme [of the IDEA] nugatory." Crocker, 873 F.2d at 935.

26

The plaintiffs concede these benefits -- but they say that their value evaporates
where, as here, a claimant seeks a remedy that the administrative machinery

cannot provide. We do not agree. Exhaustion is beneficial regardless of

whether the administrative process offers the specific form of remediation
sought by a particular plaintiff. After all, the administrative process facilitates
the compilation of a fully developed record by a fact finder versed in the
educational needs of disabled children -- and that record is an invaluable
resource for a state or federal court required to adjudicate a subsequent civil
action covering the same terrain. Fidelity to the IDEA's exhaustion requirement
ensures such an outcome.
27

In concluding that exhaustion of administrative remedies is advantageous even

though the administrative process does not offer the specific form of relief
sought by the plaintiff, we find instructive a recent Supreme Court decision
involving a different, but analogous, administrative exhaustion requirement. In
Booth v. Churner, 121 S. Ct. 1819 (2001), an inmate at a Pennsylvania state
prison claimed that guards had violated his Eighth Amendment rights by
assaulting him and then withholding medical treatment. Id. at 1821. The
applicable administrative grievance system, promulgated by Pennsylvania
correctional authorities, did not provide for the recovery of money damages. Id.
at 1821-22. Booth filed a grievance but, after prison officials rejected it,
spurned administrative review, invoked 42 U.S.C. 1983, and sued in the
federal district court for money damages.

28

The district court dismissed the claim on the ground that Booth had failed to
exhaust available administrative remedies as required by the Prison Litigation
Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (codified as
amended in scattered sections of 18 U.S.C., 28 U.S.C., & 42 U.S.C.). The court
of appeals affirmed, 206 F.3d 289 (3d Cir. 2000), and the Supreme Court
granted certiorari.

29

The crux of the controversy was the PLRA's exhaustion requirement, which
provides that: "No action shall be brought with respect to prison conditions
under section 1983 . . . or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted." 42 U.S.C. 1997e(a). Booth implored the Court
to rule that this requirement was inapposite because the administrative review
process was not empowered to award the only form of relief that he sought -money damages. The Court refined the dispute to its bare essence: whether or
not a remedial scheme was "available" where the administrative process "has
authority to take some action in response to a complaint, but not the remedial
action an inmate demands to the exclusion of all other forms of redress." Booth,
121 S. Ct. at 1822-23. The Court answered this question in the affirmative,
concluding that a remedial scheme was "available" to Booth notwithstanding

the inability of that scheme to yield an award of money damages. Justice

Souter, writing for a unanimous Court, observed that:
30

[T]he word "exhausted" has a decidedly procedural emphasis. It makes sense

only in referring to the procedural means, not the particular relief ordered. . . . It
makes no sense to demand that someone exhaust "such administrative
[redress]" as is available; one "exhausts" processes, not forms of relief, and the
statute provides that one must.

31

Id. at 1824. On this basis, the Court concluded that Congress had mandated
exhaustion regardless of the particular relief offered (or not offered) through a
given set of administrative procedures. Id. at 1825.

32

What the Court said of the PLRA's exhaustion language is equally true of the
IDEA. The IDEA's exhaustion requirement mandates that "the procedures under
subsection (f) and (g) of this section shall be exhausted." 20 U.S.C. 1415(l).
By adopting this particular phraseology, Congress unmistakably evinced its
intent to require exhaustion of procedures available under the IDEA. Given this
similarity, there is every reason to apply in the IDEA context the core holding
of Booth, i.e., that a statutory exhaustion requirement means that a party must
exhaust all available avenues of administrative review regardless of whether
the administrative process offers the particular type of relief that is being
sought.

33

Booth is instructive in another respect as well. The prisoner there staked out a
position nearly identical to that staked out by the instant plaintiffs, arguing that
exhaustion should be excused under a futility exception on the ground that the
administrative process could not yield an award of money damages. The Booth
Court's pointed rejection of that argument strongly suggests that, whatever the
statutory context, a party must exhaust a mandatory administrative process even
if the precise form of relief sought is not available in the administrative venue.
This makes perfect sense: the administrative process, at the very least, should
facilitate the development of a useful record (and, thus, assist in the informed
disposition of any subsequent litigation). Seen in that light, exhaustion of the
enumerated administrative procedures is useful even though the procedures
cannot yield the particular redress that the claimant prefers. It follows
inexorably that, in such circumstances, exhaustion should not be excused on the
ground of futility.

34

This result is all the more attractive when one considers the practical
consequences of allowing the plaintiffs to pursue their section 1983 claim

without first exhausting the IDEA's administrative process. That course of

action would allow a plaintiff to bypass the administrative procedures merely
by crafting her complaint to seek relief that educational authorities are
powerless to grant. This would subvert not only the very existence of a
mandatory exhaustion requirement but also the overall scheme that Congress
envisioned for dealing with educational disabilities. We agree with the Eleventh
Circuit that "[p]ermitting parents to avoid the requirements of the IDEA
through such a 'back door' would not be consistent with the legislative intent of
the IDEA." N.B., 84 F.3d at 1379.
35

The plaintiffs have two other arguments peculiar to this case. First, they note
that since Kate already has graduated, the administrative process can do nothing
to ameliorate the bungling that marred her educational experience. We do not
think that this fact can tip the balance.

36

First, even after graduation, compensatory education is an available remedy.

See Pihl v. Mass. Dep't of Educ., 9 F.3d 184, 188-89 & n.8 (1st Cir. 1993).
Second -- and more importantly -- the entire matter of timing is largely within a
plaintiff's control. The IDEA provides a comprehensive remedial scheme, and
the plaintiffs could have invoked it at any of several different points during
Kate's high school years.3 It would be a hollow gesture to say that exhaustion is
required -- and then to say that plaintiffs, by holding back until the affected
child graduates, can evade the requirement. As the district court aptly observed,
permitting a plaintiff to proceed with an IDEA-based claim for money damages
under another federal statute without first exhausting administrative remedies

37

might simply encourage plaintiffs to wait to dispute the adequacy of their

educational programs until after graduation precisely in the hope of recovering
money damages. This would mean that plaintiffs would not actually address
educational issues when they occur -- a situation directly at odds with the
IDEA's primary goal of ensuring the education of children with disabilities.

38

Frazier, 122 F. Supp. 2d at 111.

39

The plaintiffs also assert that the BSEA will not hear cases which involve only
monetary damages. They attempt to leverage this point into the broader
proposition that it is futile for a plaintiff who seeks only money damages to
bring an IDEA claim before the BSEA. This argument overstates the matter.
While the BSEA has acknowledged its lack of authority to award damages in
IDEA cases, it simultaneously has asserted its power to retain jurisdiction over
IDEA claims that seek relief exclusively in the form of money damages. We

explain briefly.
40

Although the IDEA requires impartial due process hearings, Congress left the
details of those proceedings to the states. In response, Massachusetts has
adopted a panoply of statutes and regulations. Under the state scheme, a parent
may request a hearing by the BSEA regarding the evaluation of, and the
appropriate educational program for, a child with a disability. See Mass Gen.
Laws ch. 71B, 3; Mass. Regs. Code tit. 603, 28.08(3). Nothing in this
mosaic suggests that the BSEA is barred from the adjudication of special
education disputes in which a plaintiff seeks only money damages.

41

In furtherance of their claim that the BSEA categorically refuses to adjudicate

IDEA claims in which the plaintiffs seek only monetary damages, the plaintiffs
cite two BSEA proceedings. Neither precedent advances the plaintiffs' cause.

42

The first such case, In Re: Natick Pub. Schs., 6 Mass. Spec. Educ. Rep. 48
(BSEA 99-3852) (2000), involved plaintiffs who requested the hearing officer
to confirm that the BSEA lacked jurisdiction to award compensatory or
punitive damages in connection with their claims. When the school system
acquiesced in this position, the hearing officer ruled that the BSEA had no
authority to award money damages under the IDEA, but nonetheless retained
jurisdiction over the plaintiffs' claims.4 Id. at 56 n.11. This retention of
jurisdiction directly contradicts the plaintiffs' ipse dixit.

43

The second BSEA proceeding cited by the plaintiffs, In Re: Brockton Pub.
Schs., 6 Mass. Spec. Educ. Rep. 17 (BSEA 00-2572) (2000), similarly fails to
support their contention. Brockton involved serial hearings. The initial hearings
focused on amending the IEP of a potentially violent high school student. After
a full airing, the hearing officer made extensive findings of fact and concluded
that home tutoring represented the appropriate educational placement. The next
hearing focused on the plaintiffs' claim for compensatory and punitive damages
stemming from the school system's handling of the educational placement. The
hearing officer ruled that the BSEA lacked jurisdiction to award money
damages pursuant to the IDEA and deemed the plaintiffs' administrative
remedies fully exhausted. Id. at 23. The crucial point here is that the hearing
officer already had compiled the requisite findings of fact and, thus, a court of
competent jurisdiction could rely upon the administrative record developed by
the hearing officer to adjudicate the ensuing section 1983 claim.5

44

In sum, the plaintiffs have failed to carry their burden of proving that pausing to
exhaust the IDEA's administrative process would be futile (and, therefore, that

non-exhaustion should be excused). Accordingly, we hold that plaintiffs who

bring an IDEA-based claim under 42 U.S.C. 1983, in which they seek only
money damages, must exhaust the administrative process available under the
IDEA as a condition precedent to entering a state or federal court.
III. THE TITLE IX CLAIM
45

The plaintiffs advance a series of claims under Title IX of the Educational

Amendments of 1972, 20 U.S.C. 1681-1688. These claims stem from an
incident that allegedly occurred during Kate Frazier's third year at Fairhaven
High School. As the plaintiffs describe the incident, Kate was relieving herself
in a bathroom stall with the door closed when the school's discipline matron,
defendant Janet Morency, peered into the stall through a crack between the
door and the wall. The plaintiffs allege that the incident caused Kate profound
distress and that, although they reported it to the school psychologist, school
officials took no action against Morency. Moreover, they assert that Morency
stalked Kate, "continually leering," "scowling," and "pointing" at her.

46

The viability of this statement of claim depends in the first instance on a

question of first impression in this circuit: Is same-sex harassment actionable
under Title IX? The parties have, without analysis, assumed that it is. We
conclude that the assumption is well founded. Although strictly speaking, this
is not determinative of our disposition of the Title IX claim, which is based on
pleading inadequacy, we think it timely to pretermit later speculation by setting
forth our analysis.

47

Title IX prohibits gender-based discrimination in a wide array of programs and

activities undertaken by educational institutions. Cohen v. Brown Univ., 991
F.2d 888, 894 (1st Cir. 1993). It provides in pertinent part that "[n]o person . . .
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." 20 U.S.C. 1681(a). The
statute's enforcement machinery includes an implied private right of action
through which an aggrieved party may seek money damages. Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 283-84 (1998). Since this private right of
action extends only to claims against the educational institution itself, Lipsett v.
Univ. of P.R., 864 F.2d 881, 901 (1st Cir. 1988), the plaintiffs' Title IX claim
perforce fails as to all the individual defendants. The Fairhaven School
Committee is, however, potentially liable.

48

There are arguably two ways in which sexual harassment in the educational

milieu can constitute gender-based discrimination actionable under Title IX.6

The first, quid pro quo harassment, is not implicated in this case. The second,
hostile environment harassment, covers acts of sexual harassment sufficiently
severe and pervasive to compromise or interfere with educational opportunities
normally available to students. See Brown v. Hot, Sexy & Safer Prod'ns, 68
F.3d 525, 540 (1st Cir. 1995) (explaining that such a violation occurs when the
educational environment is "permeated with discriminatory intimidation,
ridicule, and insult" of sufficient severity) (citation and internal quotations
marks omitted).
49

We have not previously considered a Title IX claim of sexual harassment

involving a plaintiff and defendant of the same gender. For guidance, we turn
to Title VII of the Civil Rights Act of 1964. 42 U.S.C. 2000e-2000e-17. See
Wills v. Brown Univ., 184 F.3d 20, 25 n.3 (1st Cir. 1999) (recognizing that
certain aspects of Title VII and Title IX are to be construed in pari materia);
Lipsett, 864 F.2d at 896-98 (applying the legal framework governing Title VII
sexual harassment claims to similar allegations brought under Title IX); see
also Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75 (1992) (citing a
Title VII hostile environment case to support a holding that a teacher's sexual
harassment of a student was actionable under Title IX).

50

The Supreme Court has found same-sex harassment claims actionable under
Title VII. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).
We believe that the reasoning of Oncale is fully transferable to Title IX cases.
The Court's observation that "[b]ecause of the many facets of human
motivation, it would be unwise to presume as a matter of law that human beings
of one definable group will not discriminate against members of their group,"
id. at 78 (quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977)), has equal
force in a scholastic setting. Moreover, the Oncale Court extended the statutory
proscriptions of Title VII to same-sex harassment even though such harassment
was "assuredly not the principal evil that Congress was concerned with when it
enacted Title VII," id. at 79-80, and there is no principled basis for construing
Title IX more grudgingly. We therefore hold that a hostile environment claim
based upon same-sex harassment is cognizable under Title IX. Accord Doe ex
rel. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219-20 (5th Cir. 1998);
Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 468 (8th Cir. 1996).

51

While our recognition that the sexual harassment of a student by a faculty

member or school administrator of the same gender is actionable under Title IX
means that the instant plaintiffs have won a battle, they have not necessarily
won the war. It remains to be seen whether the amended complaint brings their
case within the confines of this cause of action. To succeed on that issue, the

amended complaint must show (1) that Kate was a student, who was (2)
subjected to harassment (3) based upon sex; (4) that the harassment was
sufficiently severe and pervasive to create an abusive educational environment;
and (5) that a cognizable basis for institutional liability exists. See Brown, 68
F.3d at 540. To satisfy the fifth part of this formulation, the plaintiffs must
prove that a school official authorized to take corrective action had actual
knowledge of the harassment, yet exhibited deliberate indifference to it.
Gebser, 524 U.S. at 290; Wills, 184 F.3d at 26.
52

The amended complaint flunks this test. Discrimination on the basis of sex is
the sine qua non of a Title IX sexual harassment case, and a failure to plead that
element is fatal. Cf. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,
258 (1st Cir. 1999) (explaining that "in same-sex harassment cases as in all
sexual harassment cases, the plaintiff 'must always prove that the conduct at
issue was not merely tinged with offensive sexual connotations,' but in fact
constituted discrimination 'because . . . of sex'" (quoting Oncale, 523 U.S. at
81)). There is nothing in the amended complaint to suggest that Morency's
behavior constituted discrimination on the basis of sex.

53

Nor can gender-based discrimination fairly be inferred from the circumstances

limned in the amended complaint. As the high school discipline matron,
Morency was "responsible for the general discipline in the halls and ways of
the School." Frazier, 122 F. Supp. 2d at 112 (citing plaintiffs' amended
complaint). Acting in that capacity, she had authorized access to the restrooms
used by female students in order to ensure that nothing was amiss. Given the
plethora of potential problems that persistently plague high schools in this day
and age -- drugs, alcohol, and the like -- Morency's actions, though insensitive,
do not exceed her mandate. Thus, we agree with the district court that "[t]he
plaintiffs have not alleged facts from which it reasonably can be inferred that
Morency's action was of a sexual nature or based on Kate's sex." Id.

54

The plaintiffs argue that the amended complaint, generously read, alleges a
second Title IX violation: the failure of school officials to investigate the
bathroom incident. But even if such a claim is properly before us -- a matter on
which we take no view -- it nonetheless fizzles. In the absence of conduct
creating a sex-based hostile educational environment, laxity on the part of
school officials in investigating an incident is not actionable under Title IX. Cf.
Karibian v. Columbia Univ., 930 F. Supp. 134, 147 (S.D.N.Y. 1996) ("If what
occurs is an employer's failure to investigate and take remedial measures in
response to a complaint of discrimination [based upon Title VII], and if it turns
out that no actual discrimination has occurred, then there is nothing which
actually constitutes any conduct banned by the statute.").

55

The plaintiffs' claim of retaliation fares no better. The amended complaint

alleges that once the plaintiffs protested to the school psychologist about the
bathroom incident, Morency retaliated by leering, stalking, and intimidating
Kate. Once again, the jurisprudence of Title VII supplies an applicable legal
framework. See Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243,
248 (2d Cir. 1995) (endorsing adoption of Title VII standards to govern review
of Title IX retaliation claims). Modifying the retaliation paradigm to fit the
educational context, a plaintiff may establish a prima facie case for a Title IX
retaliation claim by alleging facts sufficient to show that she engaged in activity
protected by Title IX, that the alleged retaliator knew of the protected activity,
that the alleged retaliator subsequently undertook some action disadvantageous
to the actor, and that a retaliatory motive played a substantial part in prompting
the adverse action. See, e.g., Hazel v. U.S. Postmaster Gen., 7 F.3d 1, 3 (1st
Cir. 1993) (discussing elements of Title VII retaliation claim).

56

Viewed through this prism, the plaintiffs' retaliation claim cannot endure. The
plaintiffs do not allege that Morency knew they had complained about the
bathroom incident. Furthermore, the amended complaint excoriates Morency's
conduct toward Kate both before and after the plaintiffs' protest and does not
allege that Morency's conduct escalated following their remonstrance. For these
reasons, the retaliation claim founders.

57

That ends this aspect of the matter. Because the amended complaint fails to
plead facts sufficient to support the plaintiffs' Title IX claims, we affirm the
district court's order of dismissal.
IV. THE FERPA CLAIM

58

The plaintiffs also assert that the defendants violated the Family Educational
Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, by failing to maintain the
confidentiality of Kate's records. Because we conclude that FERPA does not
confer a private right of action, we affirm the dismissal of this claim without
discussion of its factual predicate.

59

Congress enacted FERPA "to assure parents of students . . . access to their

educational records and to protect such individuals' rights to privacy by limiting
the transferability of their records without their consent." 120 Cong. Rec.
39,862 (1974) (joint statement of Sens. Pell and Buckley explaining major
amendments to FERPA). Under its terms, educational institutions, with a few
exceptions not material here, must obtain written parental consent prior to
releasing students' records or information derived therefrom. The statute takes a

carrot-and-stick approach: the carrot is federal funding; the stick is the

termination of such funding to any educational institution "which has a policy
or practice of permitting the release of educational records (or personally
identifiable information contained therein . . . ) of students without the written
consent of their parents." 20 U.S.C. 1232g(b)(1). Assuming, for argument's
sake, that the defendants disregarded this directive, the question becomes
whether the plaintiffs, as private parties, are entitled to maintain a claim for
money damages under FERPA. That question is a matter of first impression in
this court, and the answer to it hinges on whether FERPA confers an express or
implied private right of action.
60

The first part of the inquiry is straightforward: FERPA does not contain an
express private right of action. Given the absence of a provision explicitly
empowering private parties to sue, the plaintiffs may pursue their FERPA claim
only if a private right of action fairly can be implied from the statutory scheme.

61

The touchstone for determining whether a federal statute implies a private right
of action is congressional intent. Sterling Suffolk Racecourse Ltd. P'ship v.
Burrillville Racing Ass'n, 989 F.2d 1266, 1268 (1st Cir. 1993). In conducting
this analysis, we start with a presumption against reading an implied right of
action into a statute -- a presumption that can be overcome only by compelling
evidence of a contrary congressional intent. Stowell v. Ives, 976 F.2d 65, 70 n.5
(1st Cir. 1992); see also Karahalios v. Nat'l Fed'n of Fed. Employees, Loc.
1263, 489 U.S. 527, 532-33 (1989) ("Unless . . . congressional intent can be
inferred from the language of the statute, the statutory structure, or some other
source, the essential predicate for implication of a private remedy simply does
not exist.") (citation omitted). To glean the intent of Congress, we rely upon the
conventional tools of statutory interpretation. Sterling Suffolk, 989 F.2d at
1268.

62

It is apodictic that the language of a statute constitutes the preeminent indicator

of legislative intent. N.W. Airlines, Inc., v. Transport Workers Union, 451 U.S.
77, 91 (1981); United States v. Charles George Trucking Co., 823 F.2d 685,
688 (1st Cir. 1987). Thus, in harmony with the maxim inclusio unius est
exclusio alterius, the explicit provision of remedies within a statute cuts sharply
against the implication of a private right of action. See Sterling Suffolk, 989
F.2d at 1270 (suggesting that, in such a situation, an inquiring court ordinarily
may conclude with confidence "that the legislature provided precisely the
redress it considered appropriate").

63

This is such an instance. FERPA expressly authorizes the Secretary of

Education -- and only the Secretary -- to take "appropriate actions" to enforce

its provisions. 20 U.S.C. 1232g(f). To that end, the statute directs the
Secretary to create an apparatus within the Department of Education to
investigate, process, review, and adjudicate putative violations. Id. 1232g(g).
The sole enumerated remedy for unremediated violations -- the withholding of
federal funds -- is congruent with that grant of enforcement authority. This
paradigm plainly indicates that Congress contemplated public, rather than
private, enforcement. This indication becomes compelling when one pauses to
consider that, before stopping the flow of federal funding to an educational
institution, FERPA requires the Secretary to find not only that the institution
has failed to comply with the statutory protocol but also that compliance cannot
be secured by voluntary means. Id. 1232g(f).
64

Congress also empowered the Secretary to promulgate regulations to assist in

enforcing FERPA, and the Secretary has exercised this authority. See 34 C.F.R.
99.60-99.67. While parents and students may file written complaints through
this administrative machinery, see id. 99.63, the ultimate remedy remains the
same: the Secretary may terminate federal funding to the offending educational
institution, id. 99.67. The provision of a specific remedy replete with
administrative safeguards argues persuasively that Congress fashioned FERPA
to include precisely the remedial action that it delineated -- and none other.

65

If more were needed -- and we doubt that it is -- FERPA's legislative history is

devoid of any support for the proposition that Congress intended to allow
private parties to maintain causes of action for money damages. Because
FERPA sprung up as an amendment on the Senate floor instead of percolating
through the normal committee process, it lacks traditional legislative history
materials. This gap has been partly filled by a joint statement outlining a series
of critical amendments enacted shortly after FERPA became law. See 20 Cong.
Rec. 39,862-39,866 (1974). The joint statement represents the major source of
legislative history for FERPA.

66

Our review of this document fails to reveal a shred of evidence that Congress
intended FERPA to embody a private right of action. The joint statement
simply reinforces the plain language of the statute, charging the Secretary with
enforcing its provisions and cautioning that failure to comply with those
provisions can lead to the withdrawal of federal funding. Id. at 39,862.

67

The specific emphasis placed on the termination-of-funding remedy in both

FERPA's litany of specific prohibitions, see, e.g., 20 U.S.C. 1232g(a)(1)(A)
(declaring that "[n]o funds shall be made available under any applicable
program to any educational agency or institution" that violates FERPA); id.
1232g(a)(2) (to like effect), and in its enforcement provision, id. 1232g(f),

disavows the implication of any private right of action; and the legislative
history bears out the suggestion that Congress did not intend FERPA to
encompass a private right of action. It is, therefore, not surprising that the three
other courts of appeals that have addressed the question have held that FERPA
does not create an implied private right of action. See Tarka v. Franklin, 891
F.2d 102, 104 (5th Cir. 1989); Fay v. South Colonie Cent. Sch. Dist., 802 F.2d
21, 33 (2d Cir. 1986); Girardier v. Webster Coll., 563 F.2d 1267, 1276-77 (8th
Cir. 1977). We reach the same conclusion and, consequently, uphold the
dismissal of the plaintiffs' FERPA claim.7
V. CONCLUSION
68

We need go no further. We hold that the plaintiffs cannot proceed with a

section 1983 claim based upon alleged IDEA violations without first having
exhausted the IDEA's administrative process. We also hold that the plaintiffs
have not sufficiently alleged a claim for same-sex harassment under Title IX.
Finally, we hold that FERPA gives the plaintiffs no right to pursue a claim for
money damages.

69

Affirmed.

Notes:
1

To the extent that the amended complaint asserts other federal claims, they are
patently insubstantial, not pursued on appeal, or both.

The plaintiffs do not allege violations of Title IX or FERPA as predicates for

the section 1983 claim, but, rather, premise that claim exclusively upon the
alleged deprivation of Kate's right to a free and appropriate public education.
We evaluate their section 1983 claim accordingly.

Indeed, on one occasion the plaintiffs did take formal action. In the fall of
1998, the school system offered Kate an IEP that provided for an additional
year of tutoring to ensure that she was functional at a twelfth-grade level. The
Fraziers rejected various parts of the IEP, and the matter was referred to the
BSEA. No hearing was necessary, however, as mediation yielded a mutually
acceptable compromise. Kate graduated in the spring of 1999.

In Natick, the plaintiffs effectively distinguished their damages claim from a

claim for reimbursement of expenses incurred for special education services. 6
Mass. Spec. Educ. Rep. at 50 & n.1. This strikes a responsive chord as courts

typically treat reimbursement claims differently than claims for damages. E.g.,
Hall v. Knott County Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991)
(declaring that reimbursement claims should not be characterized as
"damages").
5

Brockton helps, rather than hurts, the defendants' position in another respect as
well. Fairly read, the case stands for the proposition that a BSEA
administrative hearing officer has the power to enter a finding that a school
system violated a student's rights. See In Re: Brockton Pub. Schs., 6 Mass.
Spec. Educ. Rep. at 23. Under ordinary circumstances, a trial court would have
to accord considerable respect to such a finding. See, e.g., Lenn, 998 F.2d at
1086.

We say "arguably" because the Supreme Court has raised doubts as to whether
these two theories should be treated separately. See Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 751 (1998). We need not probe that point today.

While several circuits have held or implied that FERPA violations may serve as
the basis for a suit under 42 U.S.C. 1983, see Padilla v. Sch. Dist. No. 1, 233
F.3d 1268, 1272 n.5 (10th Cir. 2000) (collecting cases), we need not reach that
issue inasmuch as the plaintiffs' amended complaint makes no such
juxtaposition.