Washington v. Pierce

Washington v. Pierce (2003-487); 179 Vt. 318; 895 A.2d 173

2005 VT 125

[Filed 16-Dec-2005]

[Motion for Reargument Denied 20-Jan-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2005 VT 125

                                No. 2003-487


  Celeste Washington 	                         Supreme Court
  b/n/f Martha Daley and
  Arthur Washington
                                                 On Appeal from
       v.	                                 Washington Superior Court


  Robin Pierce, as Principal of 	         November Term, 2004
  Harwood Union High School, et al.


  Geoffrey W. Crawford, J.

  David F. Kelley, Montpelier, Eileen M. Blackwood of Blackwood Associates,
    P.C., Burlington, and David Putter, Montpelier, for Plaintiff-Appellant.

  Heather E. Thomas of Lynn & Associates, Burlington, for
    Defendants-Appellees.

  Robert Appel, Montpelier, for Amicus Curiae Vermont Human Rights
    Commission. 


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned  

       ¶  1.  SKOGLUND, J.   Plaintiff filed suit alleging that she was
  denied access to full and equal educational opportunities because of a
  hostile environment caused by pervasive student-student racial and sexual
  harassment at Harwood Union High School.  On appeal she challenges the
  superior court's summary judgment dismissal of her claims under Vermont's
  Public Accommodations Act, 9 V.S.A. §§ 4500-4507, and 16 V.S.A. §§ 565 and
  1161a. 
   
       ¶  2.  This case requires us to decide whether a VPAA claim may be
  based on allegations of student-student harassment in a school, and, if so,
  what elements comprise such a claim.  In Section III.A, we hold that such a
  claim is viable in light of the broad sweep of the VPAA and Vermont's
  educational statutes aimed at eradicating harassment from places of
  learning.

       ¶  3.  Next, we must determine the correct standard by which to
  measure the conduct of schools and school officials in cases of
  student-student harassment.  All parties, and the trial court, agree that,
  under any standard, there must be harassing conduct "that is so severe,
  pervasive, and objectively offensive that it can be said to deprive the
  victims of access to the educational opportunities or benefits provided by
  the school."  Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650
  (1999).  We agree.  
   
       ¶  4.  The dispute, then, centers on the "mental state" of the
  school and school officials-plaintiff argues that defendants are liable if
  they knew or should have known of the harassment, while defendants argue
  that the trial court correctly held that they could only be liable for
  their "deliberate indifference" to the harassing conduct.  As explained
  below, we decline to adopt either party's proposed standard.  Instead, we
  hold that in a peer harassment case under the VPAA, a plaintiff must
  demonstrate that she exhausted her administrative remedies or that a valid
  reason existed for bypassing those remedies.  This standard, imported from
  the recently-enacted 16 V.S.A. § 14, strikes a balance between the
  deliberate indifference and negligence standards urged by the parties, and
  does so by focusing on more easily-ascertainable criteria.  In particular,
  the school's knowledge of the harassment, the point of contention between
  the parties here, falls out of the equation under this standard-on the one
  hand, exhaustion of remedies implies actual notice to the school, and, on
  the other, proof of a valid reason for failing to exhaust remedies relieves
  the burden to prove notice.

       ¶  5.  Finally, we must decide whether defendant is entitled to
  summary judgment under that standard, given the record developed by the
  parties.  We affirm the trial court's grant of summary judgment because
  plaintiff cannot show that the school had actual notice of the harassment
  forming the basis of her complaint or that she exhausted her remedies at
  the school or met an exception to the exhaustion requirement. 

                           I.  Factual Background

       ¶  6.  The trial court found the following facts to be undisputed. 
  Plaintiff, the daughter of a black father and white mother, attended
  Harwood Union High School from the fall of 1995 to the 2000 Christmas
  break.  During her time at Harwood, she heard other students using a wide
  array of racially and sexually inappropriate terms.  She was the target of
  such expressions only twice, but she heard them at school on a daily basis. 
  The conduct of which she complains never involved faculty or school
  personnel-the alleged harassment involved students exclusively.  She
  testified at her deposition that she chose not to lodge a complaint with
  the school about any of the harassing conduct.
   
       ¶  7.  Finding the atmosphere at Harwood hostile, plaintiff
  transferred to Montpelier High School to complete her secondary education,
  at her parents' expense.  In September 2001, plaintiff commenced this
  action, alleging: (1) a violation of the Vermont Public Accommodations Act,
  9 V.S.A. § 4502, claiming that an "atmosphere fraught with ethnic, racial
  and gender based student harassment" existed at Harwood and deprived her of
  "full access to the educational benefits intended and expected to be
  provided by public secondary schools"; and (2) violations of 16 V.S.A. §
  565, which requires schools to create anti-harassment policies.  In May
  2003, defendants moved for summary judgment, arguing, in essence, that
  plaintiff was seeking to hold defendants liable for failing "to prevent the
  harassment from happening in the first place."  Defendants reasoned that
  plaintiff had failed, under the deliberate indifference standard announced
  in Davis, 526 U.S.  at 650, to allege sufficiently that defendants were on
  notice regarding the alleged harassment.


       ¶  8.  In opposing summary judgment, plaintiff relied on the following
  facts.  First, Harwood sent a letter in 1997 to all of its students'
  families, acknowledging that "the negative attitudes toward others that
  students exhibit at Harwood are also common generally in society today,"
  and enclosing some relevant reading material.  In addition, a teacher
  supplied an affidavit stating that she filed at least twelve reports "based
  on some form of harassing behavior" while teaching there from 1994 2001.  A
  member of the community also submitted an affidavit stating that he had
  witnessed the use of racial epithets at Harwood and had reported them to
  the principal, defendant Pierce. 

       ¶  9.  In addition, plaintiff's Statement of Material Facts in
  Opposition to Defendants' Motion for Summary Judgment highlighted portions
  of her deposition testimony reflecting that: during her time at Harwood,
  she would hear racial slurs "every day probably"; she recalled one specific
  instance when a student directed a racial epithet at her; at some point she
  was called a "dyke"; that she believed that "some people reported
  harassment claims"; and she did not think complaining to the administration
  about any of the above would ameliorate the problem.  Plaintiff also stated
  in an affidavit that after she left Harwood she learned of a student who
  had submitted a written complaint describing incidents of racial and sexual
  comments directed at the complaining student by another student.  
   
       ¶  10.  Plaintiff also offered the deposition testimony of her
  mother, Martha Daley.  Ms. Daley's testimony, in sum, relates that she: had
  periodic meetings with school personnel concerning her son, during which
  she complained about the environment at Harwood; told an individual at the
  school about specific incidents of racism; and attended meetings at the
  school aimed at addressing the hostile environment and raising awareness
  around issues of multi-culturalism.  Ms. Daley also testified that she did
  not complain to the school about racism or harassment directed at
  plaintiff. 

       ¶  11.  In granting summary judgment, the trial court adopted the
  deliberate indifference standard.  The court concluded that plaintiff had
  sufficiently alleged that she was exposed to harassment "so severe,
  pervasive, and objectively offensive" that it could be said to deprive
  plaintiff of access to the school's educational opportunities or benefits. 
  The court, however, held that plaintiff "has not been able to provide
  evidence that any school official actually knew of acts of harassment and
  responded with deliberate indifference."  The court also rejected
  plaintiff's argument that "the acts of harassment were so ubiquitous that
  school officials must have known about them and could have acted
  affirmatively on that basis alone."  While acknowledging that the "claim
  that school administrators should have known generally what was going on is
  consistent with the observation in the June 1997 letter that the community
  had a problem that was reflected at school," the court concluded that
  plaintiff failed to support a "reasonable inference that a school official
  failed to respond to a particular incident."

       ¶  12.  On appeal, plaintiff argues that the court erred because it
  applied the wrong legal standard to her hostile environment claim.  Rather
  than requiring deliberate indifference to known misconduct on the part of
  school and school officials, plaintiff claims that the VPAA permits a
  hostile environment claim based on peer harassment as long as the school
  officials knew or should have known of the misconduct.  Plaintiff also
  argues that the court misused the summary judgment standard by shifting to
  plaintiff the "burden of persuasion" on the issue of defendants' response,
  or lack thereof, to any alleged acts of harassment. (FN!)   Defendants
  maintain that the trial court employed the correct standard based on United
  States Supreme Court precedent, including Davis, which applies the
  deliberate indifference standard to student claims of harassment brought
  under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et
  seq.   II.  Statutory Framework

       ¶  13.  The VPAA creates a private right of action for certain
  discrimination claims.  Specifically, it prohibits an owner or operator of
  a "place of public accommodation," or an agent or employee of an
  owner/operator, from withholding from or denying to any person "any of the
  accommodations, advantages, facilities and privileges of the place of
  public accommodation" based on that person's "race, creed, color, national
  origin, marital status, sex or sexual orientation."  9 V.S.A. § 4502(a). 
  The Act defines a place of public accommodation explicitly to include "any
  school."  Id. § 4501(1).  Finally, a person aggrieved by a violation of the
  Act "may bring an action for injunctive relief and compensatory and
  punitive damages and any other appropriate relief in the superior court of
  the county in which the violation is alleged to have occurred."  Id. §
  4506(a).  We recognize that, "[a]s a remedial statute, the [VPAA] must be
  liberally construed in order to suppress the evil and advance the remedy
  intended by the Legislature."  Human Rights Comm'n v. Benevolent &
  Protective Order of Elks, 2003 VT 104, ¶ 13, 176 Vt. 125, 839 A.2d 576
  (quotations omitted). 
   
       ¶  14.  This case also implicates several provisions of Title 16
  dealing with harassment in schools.  In 1994, the Legislature added 16
  V.S.A. § 11(a)(26), which defined harassment as 

    verbal or physical conduct based on a student's race, creed,
    color, national origin, marital status, sex, sexual orientation or
    disability and which has the purpose or effect of substantially
    interfering with a student's educational performance or creating
    an intimidating, hostile or offensive environment.  Sexual
    harassment is also a form of unlawful harassment and means
    unwelcome sexual advances, requests for sexual favors and other
    verbal or physical conduct of a sexual nature.

  1993, No. 162 (Adj. Sess.), § 2.  At the same time, the Legislature added
  16 V.S.A. § 565, requiring all Vermont schools to adopt a harassment policy
  and procedures for dealing with harassment of students.  Id. § 4.  In May
  2000, the Legislature amended § 565, to require that harassment policies
  include procedures directing students and staff how to report violations
  and file complaints and outlining how to investigate such reports.  1999,
  No. 120 (Adj. Sess.), § 6. 

       ¶  15.  Although they occurred after the operative events at issue
  here, we also note several key amendments the Legislature passed in 2004. 
  First, the Legislature amended § 11(a)(26)'s definition of harassment to
  encompass 

    an incident or incidents of verbal, written, visual, or physical
    conduct based on or motivated by a student's or a student's family
    member's actual or perceived race, creed, color, national origin,
    marital status, sex, sexual orientation, or disability that has
    the purpose or effect of objectively and substantially undermining
    and detracting from or interfering with a student's educational
    performance or access to school resources or creating an
    objectively intimidating, hostile, or offensive environment.  
     
  2003, No. 91 (Adj. Sess.), § 2.  It also added subsections 26(B)(i)-(iii),
  which define, respectively, sexual harassment, racial harassment, and
  harassment based on other protected categories.  Id.  Second, § 565 was
  amended to provide time limits within which a school must investigate and
  decide on reports of harassment and to establish a procedure for
  independent review of a school's final determination of a harassment
  complaint.  Id. § 4.

       ¶  16.  Third, the Legislature added § 14 to Title 16.  Id. § 3. 
  Section 14(a) provides that "[a]n educational institution that receives
  actual notice of alleged conduct that may constitute harassment shall
  promptly investigate to determine whether harassment occurred."  16 V.S.A.
  § 14(a).  The statute then directly addresses claims brought under the
  VPAA:

    In regard to claims brought pursuant to 9 V.S.A. chapter 139, if
    after notice, the educational institution finds that the alleged
    conduct occurred and that it constitutes harassment, the
    educational institution shall take prompt and appropriate remedial
    action reasonably calculated to stop the harassment.  No action
    shall be brought pursuant to 9 V.S.A. chapter 139 until the
    administrative remedies available to the claimant under the policy
    adopted by the educational institution pursuant to subsection . .
    . 565(b) of this title . . . have been exhausted.  Such a showing
    shall not be necessary where the claimant demonstrates that: (1)
    the educational institution does not maintain such a policy; (2) a
    determination has not been rendered within the time limits
    established under subdivision 565(b)(1) of this title; (3) the
    health or safety of the complainant would be jeopardized
    otherwise; (4) exhaustion would be futile; or (5) requiring
    exhaustion would subject the student to substantial and imminent
    retaliation.

  Id. § 14(b) (emphasis added).  Thus, the Legislature has conditioned a
  harassment victim's ability to seek relief in court under the VPAA on the
  victim's exhaustion of his or her administrative remedies, or proof of a
  valid reason for not exhausting those remedies. 
   
                            III.  Legal Analysis

       ¶  17.  We review a trial court's grant of summary judgment de novo,
  applying the same standard as the trial court.  Hardwick Recycling &
  Salvage, Inc. v. Acadia Ins. Co., 2004 VT 124, ¶ 14, 177 Vt. 421, 869 A.2d 82.  We grant summary judgment if there are no genuine issues as to any
  material fact, and any party is entitled to summary judgment as a matter of
  law.  V.R.C.P. 56(c)(3).  Our review of legal questions presented by a
  summary judgment motion is plenary and nondeferential.  Hardwick Recycling
  & Salvage, Inc., 2004 VT 124, ¶ 14.  "If the nonmoving party fails to
  establish an essential element of its case on which it has the burden of
  proof at trial, the moving party is entitled to summary judgment as a
  matter of law."  State v. G.S. Blodgett Co., 163 Vt. 175, 180, 656 A.2d 984, 988 (1995).  

       A.  Availability of VPAA for student-student harassment claims
   
       ¶  18.  We conclude that the VPAA encompasses hostile school
  environment claims based on peer harassment.  When the Legislature added 16
  V.S.A. § 11(a)(26)'s definition of harassment and 16 V.S.A. § 565's
  requirement that schools adopt harassment policies, it stated that, in
  doing so, it "intended to implement the provisions of [the VPAA] as they
  affect schools as places of public accommodation."  1993, No. 162 (Adj
  Sess.), § 1.  A school administration's power over its students is
  "custodial and tutelary, permitting a degree of supervision and control
  that could not be exercised over free adults."  Vernonia Sch. Dist. 47J v.
  Acton, 515 U.S. 646, 655 (1995); see also Tinker v. Des Moines Indep. Cmty.
  Sch. Dist., 393 U.S. 503, 507 (1969) (recognizing that school officials
  have "comprehensive authority" over students, "consistent with fundamental
  constitutional safeguards, to prescribe and control conduct in the
  schools").  This authority necessarily places a responsibility on school
  administrators to exercise their power so as to provide their charges with
  an atmosphere conducive to education and personal growth, free from
  impediments like pervasive student misbehavior.  Not surprisingly, the
  Legislature has explicitly recognized that "it is the policy of the state
  of Vermont that all Vermont educational institutions provide safe, orderly,
  civil and positive learning environments."  1999, No. 120 (Adj. Sess.), §
  1.  

       ¶  19.  In light of these responsibilities, the VPAA encompasses
  claims against school officials, as owners and operators of places of
  public accommodation, as well as their agents and employees, for unlawful
  in-school harassment of their students, even when the harassing conduct is
  perpetrated by other students.  First, 16 V.S.A. § 11(a)(26)'s definition
  of harassment at the time of the alleged claim is broad enough to cover
  harassing conduct by students.  See 1993, No. 162 (Adj. Sess.), § 2
  (defining harassment as "verbal or physical conduct based on a student's
  race, creed, color, national origin, marital status, sex, sexual
  orientation or disability and which has the purpose or effect of
  substantially interfering with a student's educational performance or
  creating an intimidating, hostile or offensive environment").  Nothing in
  the statute exempts conduct committed by students from its definition of
  harassment. (FN2)  To read the definition otherwise would conflict with the
  Legislature's stated purpose to rid Vermont schools of harassment.  See
  1999, No. 120 (Adj. Sess.), § 1 ("Harassment, hazing and bullying have no
  place and will not be tolerated in Vermont schools.  No Vermont student
  should feel threatened or be discriminated against while enrolled in a
  Vermont school.").
   
       ¶  20.  Further, the clear links between the anti-harassment
  provisions of Title 16 and the VPAA confirm that the Legislature intended
  harassment in schools, including that perpetrated by students, to come
  within the VPAA's sweep.  The VPAA makes it unlawful to, "because of the
  race, creed, color, national origin, marital status, sex or sexual
  orientation of any person, refuse, withhold from or deny to that person any
  of the accommodations, advantages, facilities and privileges of the place
  of public accommodation."  9 V.S.A. § 4502(a).  The Act expressly includes
  "any school" within its definition of a "place of public accommodation." 
  Id. § 4501(1).  Thus, the definition of harassment in 16 V.S.A. § 11(a)(26)
  mirrors the VPAA's definition of unlawful conduct in the context of
  harassment in schools. 
        
       ¶  21.  Additionally, when the Legislature added 16 V.S.A. §
  11(a)(26)'s definition of harassment and § 565's requirement that schools
  adopt anti-harassment policies, its stated purpose was "to protect students
  by defining unlawful harassment as a form of discrimination which withholds
  from or denies to a student the accommodations, advantages, facilities, and
  privileges of the school."  1993, No. 162 (Adj. Sess.), § 1 (emphasis
  added).  The emphasized language appears verbatim in § 4502(a) of the VPAA,
  suggesting that the Legislature intended that any form of harassment in
  school, whether perpetrated by staff or students, would violate the VPAA.
   
       ¶  22.  Further, the 2004 amendments to Title 16 make explicit
  reference to VPAA claims for in-school harassment.  For example, 16 V.S.A.
  § 14(b) explains an educational institution's obligation to take prompt
  remedial action "[i]n regard to claims brought pursuant to 9 V.S.A. chapter
  139," when it has received actual notice of conduct that may be harassment. 
  Section 14(b) also states that "[n]o action shall be brought pursuant to 9
  V.S.A. chapter 139 until" the plaintiff has exhausted the school's
  administrative remedies or satisfied one of the exceptions to the
  exhaustion requirement.  Thus, the addition of 16 V.S.A. § 14 confirms that
  the Legislature envisioned the VPAA as the means of legal redress for
  victims of in-school harassment.  Accordingly, given the fact that §
  11(a)(26)'s definition of harassment includes harassment committed by
  students, we hold that  the VPAA encompasses claims based on in-school
  student-student harassment.

     B.  Standard of conduct for VPAA student-student harassment claims

       ¶  23.  As explained above, the parties diverge sharply on the issue
  of what standard of conduct governs a school's liability in a hostile
  environment claim based on student harassment. Defendants advocate for the
  more stringent standard applied by federal courts in student harassment
  cases under Title IX, which requires the student to demonstrate that school
  officials were deliberately indifferent to harassment of which they had
  actual knowledge.  Plaintiff, proposing a standard similar to that used in
  Title VII workplace harassment cases, asserts that, in addition to
  pervasive harassing conduct described above, she need prove only "that the
  school administration knew or in the exercise of reasonable care should
  have known of the harassment." 
   
       ¶  24.  Several Vermont trial courts have decided student-student
  harassment cases under the VPAA and reached different conclusions about
  which standard applies.  Compare N.S. v. St. Johnsbury Sch. Dist., No.
  S-301-11-99 Cacv, Special Jury Interrogs. at 1 (Caledonia Super. Ct. Apr.
  12, 2002) (requiring jury to determine whether defendants failed to take
  "timely, appropriate and reasonable steps" to prevent harassment "after
  they knew or should have known of the existence of such harassment");
  DeBono v. Milton Town Sch. Dist., No. S1789-97 CnC, slip op. at 6-9
  (Chittenden Super. Ct. Apr. 20, 2001) (holding that deliberate indifference
  standard did not apply to negligent supervision claim and denying
  defendants' summary judgment motion as to plaintiff's VPAA claim based on
  student-student sexual harassment); and Houlahan v. Norwich Univ., No.
  26-1-98 Wncv, slip op. at 7-8 (Washington Super. Ct. Apr. 24, 2000)
  (holding that plaintiff must show notice on part of school, but need not
  show deliberate indifference), with S.R. v. Montpelier Sch. Dist., No.
  503-99 WnCv, slip op. at 5-6 (Washington Super. Ct. Feb. 1, 2001) (applying
  deliberate indifference standard to student-student harassment claim). 
  Therefore, we take this opportunity to clarify the standard for such claims
  going forward.

                                     1.

       ¶  25.  Defendants urge us to affirm the trial court's application of
  the deliberate indifference standard that has evolved as the federal courts
  have addressed peer harassment in schools under federal anti-discrimination
  statutes.  Most of those cases have attempted to hold schools and school
  officials liable for student-student sexual harassment under Title IX of
  the Education Amendments of 1972.  Title IX provides that "[n]o 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."  20 U.S.C. § 1681(a).  
   
       ¶  26.  An implied private right of action for money damages exists
  under Title IX, Franklin v. Gwinnett County Public Schools, 503 U.S. 60,
  74-75 (1992), and, in "certain limited circumstances," it encompasses
  claims against schools and school officials based on peer harassment,
  Davis, 526 U.S.  at 643.  Specifically, recipients of Title IX funds are
  liable "only where they are deliberately indifferent to sexual harassment,
  of which they have actual knowledge, that is so severe, pervasive, and
  objectively offensive that it can be said to deprive the victims of access
  to the educational opportunities or benefits provided by the school."  Id.
  at 650.  Addressing the severity of the harassing behavior necessary to
  sustain a claim, the Davis Court recognized that because "students are
  still learning how to interact appropriately with their peers," they may
  regularly engage in conduct that "would be unacceptable among adults" and
  is "upsetting to the students subjected to it."  Id. at 651-52.

       ¶  27.  The Davis Court also explained that, in order to ensure that
  school administrators "continue to enjoy the flexibility they require," a
  school is deliberately indifferent to peer harassment of its students "only
  where the recipient's response to the harassment or lack thereof is clearly
  unreasonable in light of the known circumstances."  Id. at 648.  Thus, in
  the context of a Title IX claim, "there is no reason why courts . . . could
  not identify a response as not 'clearly unreasonable' as a matter of law." 
  Id. at 649.  

       ¶  28.  Because it has "repeatedly treated Title IX as legislation
  enacted pursuant to Congress' authority under the Spending Clause," the
  Court adopted the deliberate indifference standard in order to guarantee
  that a funding recipient could be liable only for conduct about which it
  had adequate notice.  Id. at 640.  Legislation enacted under the Spending
  Clause is "much in the nature of a contract: in return for federal funds,
  the States agree to comply with federally imposed conditions."  Pennhurst
  State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).  Thus, a Title IX
  recipient cannot be liable if it is unaware of those conditions or "unable
  to ascertain what is expected of it."  Id.  The deliberate indifference
  standard comports with the Court's Spending Clause jurisprudence because it
  conditions liability on the funding recipient's intentional violation of
  Title IX resulting from its decision to remain deliberately indifferent to
  acts of harassment.
   
       ¶  29.  We do not agree with defendants and the trial court that the
  deliberate indifference standard imported from Davis applies to a claim
  brought under the VPAA.  Because Title IX was created under Congress's
  Spending Clause authority, the Davis Court limited the liability of a
  funding recipient to damages resulting from "its own decision to remain
  idle in the face of known student-on-student harassment in its schools." 
  526 U.S.  at 641.  By contrast, the VPAA is a remedial statute aimed at
  "protect[ing] the citizens of Vermont from 'a number of serious social and
  personal harms.' "  Human Rights Comm'n v. Benevolent & Protective Order of
  Elks, 2003 VT 104, ¶ 14 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 625 (1984)).  Unlike Title IX-which essentially affords a school
  a choice between receiving funds as long as the school complies with the
  Act or not complying and thus not receiving funds-the VPAA requires all
  Vermont schools to comply.  Thus, the VPAA's remedies are not cabined by
  the contractual considerations present in the context of Spending Clause
  litigation.  In addition, the VPAA, unlike Title IX, provides an express
  private right of action.  9 V.S.A. § 4506(a).  Accordingly, the VPAA is
  sufficiently distinguishable from Title IX in its structure and purpose
  that we are not inclined to apply the liability standard fashioned under
  those federal statutes to a VPAA claim.

                                     2.
   
       ¶  30.  Next, we explain our rationale for declining to adopt
  plaintiff's proposed standard. Plaintiff advocates that defendants' conduct
  should be measured under a "knew or should have known" standard, relying on
  caselaw addressing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
  2000e to 2000e-17.  Title VII prohibits employers from discriminating
  "against any individual with respect to his compensation, terms,
  conditions, or privileges of employment, because of such individual's race,
  color, religion, sex, or national origin.  Id. § 2000e 2(a)(1).  While
  Title VII seeks to compensate victims of unlawful employment
  discrimination, its main objective, "like that of any statute meant to
  influence primary conduct, is not to provide redress but to avoid harm." 
  Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998).  To that end,
  the United States Supreme Court has conditioned an employer's vicarious
  liability for harassment perpetrated by its employee on both the employer's
  efforts to prevent and promptly rectify harassing behavior and the
  "coordinate duty" of the victim to avoid or mitigate harm.  Id. at 806. 
  Thus, in Faragher, (FN3) the Court held that an employer could defend a
  harassment claim based on a hostile work environment by showing "(a) that
  the employer exercised reasonable care to prevent and correct promptly any
  sexually harassing behavior, and (b) that the plaintiff employee
  unreasonably failed to take advantage of any preventive or corrective
  opportunities provided by the employer or to avoid harm otherwise."  Id. at
  807.

       ¶  31.  The standard proposed by plaintiff, then, is a truncated
  version of the Title VII standard-she asserts that a school should be
  liable under the VPAA if school officials knew or should have known there
  was harassment severe and pervasive enough to deny a student the privileges
  and benefits of the school.  Plaintiff's version eliminates from
  consideration (1) the steps, if any, taken by a school to prevent
  harassment and/or to correct it once it occurs, and (2) whether the alleged
  victim utilized the school's "preventive or remedial apparatus."  Id.  As a
  result, plaintiff's standard would expose schools to far greater liability
  than the VPAA can be construed to allow-for example, it would render a
  school liable regardless of how quickly and effectively it responded to an
  incident.  Accordingly, we decline to adopt the standard proposed by
  plaintiff.

                                     3.
   
       ¶  32.  So what standard should be used to measure the conduct of
  schools and school officials?  In 2004, the Legislature suggested a
  resolution when it amended 16 V.S.A. §§ 11(a)(26) and 565, and, more
  importantly, added 16 V.S.A. § 14.  2003, No. 91 (Adj. Sess.), §§ 2-4.  In
  passing Act 91, the Legislature specifically declared its intent to
  "recognize that educational institutions should have the opportunity to
  remedy promptly and appropriately allegations of harassment."  Id. § 1(4). 
  Therefore, the standard for VPAA claims must accommodate both a student's
  right to be "free of harassment in educational institutions," id. § 1(3),
  and a school's opportunity to respond to alleged harassment before being
  subject to litigation.

       ¶  33.  Before we fill out the elements of a VPAA claim for peer
  harassment, we note that we may properly consider Act 91 even though it was
  passed after the conduct at issue here.  Where, as here, a legislative body
  enacts a law that clarifies an earlier law, the "subsequent legislation
  declaring the intent of an earlier statute is entitled to great weight in
  statutory construction."  Loving v. United States, 517 U.S. 748, 770 (1996)
  (quotations omitted).  Because the later act can be viewed as the
  legislative body's interpretation of the earlier act "in the sense that it
  aids in ascertaining the meaning of the words as used in their contemporary
  setting," the later act is accorded "great weight in resolving any
  ambiguities and doubts."  Erlenbaugh v. United States, 409 U.S. 239, 244
  (1972) (quotations omitted).  When it passed Act 91, the Legislature spoke
  directly to the level of knowledge on the part of a school that a plaintiff
  must show in order to bring a valid claim for harassment under the VPAA-an
  issue upon which we have not ruled, and upon which neither the VPAA nor the
  pre-Act 91 anti-harassment statutes shed any light.  Thus, we may properly
  consider Act 91 here.  See In re Estate of Evanco, 955 P.2d 525, 528
  (Alaska 1998) ("When an ambiguous statute that we have not construed and an
  unambiguous successor statute can reasonably be interpreted in a consistent
  manner, the policy embodied in the successor statute is a factor that is
  appropriately considered in interpreting the old statute."); see also 2B N.
  Singer, Statutes and Statutory Construction § 49:11, at 126 (rev. ed. 2000)
  ("Permitting subsequent amendments to control the doubtful meaning of a
  former statute removes a great deal of uncertainty in the law.").
   
       ¶  34.  By the plain language of 16 V.S.A. § 14(b), the Legislature
  balanced the coordinate duties of the school to provide a harassment-free
  environment and the harassment victim to look first to the school's
  mechanisms to redress in-school harassment.  To that end, the statute, on
  the one hand, precludes the filing of a VPAA action "until the
  administrative remedies available to the claimant under the policy adopted
  by the educational institution pursuant to subsection 166(e) or 565(b) of
  this title . . . have been exhausted."  Id. § 14(b).  On the other hand, §
  14(b) also includes five exceptions to the exhaustion requirement:

    Such a showing shall not be necessary where the claimant
    demonstrates that: (1) the educational institution does not
    maintain such a policy; (2) a determination has not been rendered
    within the time limits established under subdivision 565(b)(1) of
    this title; (3) the health or safety of the complainant would be
    jeopardized otherwise; (4) exhaustion would be futile; or (5)
    requiring exhaustion would subject the student to substantial and
    imminent retaliation.

       ¶  35.  Accordingly, we hold that a plaintiff bringing a VPAA action
  based on a hostile school environment created by student-student harassment
  must show that: (1) he or she was the victim of harassing conduct so
  severe, pervasive, and objectively offensive that it deprived him or her of
  access to the educational opportunities or benefits provided by the school;
  and (2) the plaintiff exhausted the administrative remedies available, or
  that circumstances existed that relieved the plaintiff of the exhaustion
  requirement.  
   
       ¶  36.  This approach yields a number of advantages over the
  standards proposed by the parties.  First, it eliminates the necessity of a
  separate inquiry into the state of the school's knowledge or the notice
  received by the school.  This follows because, on the one hand, notice on
  the part of the school would follow logically from a showing that the
  plaintiff exhausted his or her remedies.  On the other hand, by showing
  that one of the exceptions to the exhaustion requirement applies, the
  plaintiff will have implicitly proven that a valid reason existed for
  allowing the action to proceed regardless of whether the school had notice.


       ¶  37.  At the same time, this standard provides courts with objective
  criteria for evaluating the conduct of the parties in a hostile school
  environment harassment case to a greater extent than the "knew or should
  have known" standard proposed by plaintiffs or the deliberate indifference
  standard.  See D. Greene, "You're So Gay!": Anti-Gay Harassment in Vermont
  Public Schools, 27 Vt. L. Rev. 919, 949-50 (2003) (suggesting that courts
  import the objective criteria of Title 16's anti-harassment statutes into
  harassment claims brought under the VPAA).  For example, a school is
  deliberately indifferent "only where the recipient's response to the
  harassment or lack thereof is clearly unreasonable in light of the known
  circumstances."  Davis, 526 U.S.  at 648 (emphasis added).  The standard we
  announce today replaces the "clearly unreasonable" determination with an
  inquiry into whether the school made adequate remedies available and
  whether the victim failed to exhaust them.  Similarly, the exhaustion
  inquiry rests on a more easily-ascertainable set of facts than whether
  school officials should have known of harassing conduct.  And the
  exceptions to the exhaustion requirement now set forth in 16 V.S.A. § 14(b)
  largely turn on objective criteria-the presence of a policy that complies
  with 16 V.S.A. § 565, the timing of the school's determination of a
  harassment complaint, the effect exhaustion would have on the victim's
  health or safety, or the likelihood of retaliation.  16 V.S.A. §
  14(b)(1)-(3), (5).  Although the fourth exception, the futility of
  exhausting one's administrative remedies, § 14(b)(4), is potentially more
  open-ended than the other four, overall the standard we announce today
  provides courts with more concrete, verifiable measures for testing a VPAA
  harassment claim than would either of the standards proposed by the
  parties.
   
       ¶  38.  This standard also has the advantage of promoting compliance
  with the anti-harassment provisions of Title 16.  In particular, by
  emphasizing the harassment policy mandated by 16 V.S.A. §§ 166(e) and
  565(b), it both provides an incentive for schools to adopt, publicize, and
  enforce these policies, which must include procedures for reporting
  harassment, 16 V.S.A. § 565(b)(1), and encourages victims to mitigate harm
  by utilizing the school's remedial procedures before resorting to
  litigation.

       ¶  39.  In addition, because this approach grafts the anti-harassment
  provisions of Title 16 onto the analysis of a VPAA harassment claim, it
  highlights the VPAA as a means to further the Legislature's stated goals of
  "protect[ing] students by defining unlawful harassment as a form of
  discrimination," 1993, No. 162 (Adj. Sess.), § 1, and guaranteeing "safe,
  orderly, civil and positive learning environments" for all Vermont
  students, 1999, No. 120 (Adj. Sess.), § 1.  In this way, it reflects the
  Legislature's intent to read Title 16 and the VPAA as complementary parts
  of a scheme to combat harassment in Vermont schools. 

                                     4.

       ¶  40.  Applying this standard to the case at hand, we reject the
  trial court's use of the deliberate indifference standard, but nonetheless
  we affirm its decision to grant summary judgment in defendants' favor
  because, as a matter of law, plaintiff cannot demonstrate that she
  exhausted her remedies at the school or that she somehow was relieved of
  that responsibility.
   
       ¶  41.  The facts adduced by plaintiff in response to defendants'
  summary judgment motion, at best, demonstrate that plaintiff's mother
  expressed some general grievances to unidentified school officials, and
  that plaintiff herself did not lodge any complaints with the school
  administration regarding harassing conduct by other students.  Indeed,
  plaintiff admits that she chose not to complain to any school administrator
  or teacher, nor did she engage the administrative remedies available to her
  through the school.  Additionally, plaintiff presented no evidence that any
  misconduct occurred in the presence of school personnel.  Although
  plaintiff did proffer evidence of a complaint made by another student,
  there is no identifiable link between that complaint and the conduct of
  which plaintiff complains.  Accordingly, by choosing not to raise any
  complaints with a school official, plaintiff failed to exhaust her
  administrative remedies.  Thus, her claim cannot survive summary judgment
  unless one of the exceptions to the exhaustion requirement applies.  

       ¶  42.  In that regard, the record is devoid of any evidence
  suggesting that complaining to school officials would have placed
  plaintiff's health or safety in jeopardy or subjected plaintiff to
  retaliation.  Additionally, because there was no complaint before the
  school, there was no possibility of the school failing to make a
  determination within the statutory time limits.  
   
       ¶  43.  With respect to the futility of complaining to school
  officials, although plaintiff did supply evidence of complaints having been
  lodged by other students, she did not furnish any evidence suggesting that
  the school somehow mishandled those complaints.  While plaintiff testified
  that harassment went on "every single day in the hallways" so that school
  officials "must be deaf or blind or something," she offered no evidence
  that the school had mishandled or refused to deal with issues of which it
  was aware.  Moreover, she testified that she was aware that she could
  report inappropriate behavior to the administration, and that the
  administration could then take steps to punish those responsible. 
  Nonetheless, she testified that she chose not to complain because, in her
  view, it would be "dumb" and not "appropriate" to punish offending
  students, rather than educate them.  In short, the record shows that
  plaintiff decided not to complain because she believed education was a
  better policy than punishment, not because she thought the school would do
  nothing if she did complain.  This disagreement over how best to address
  harassment issues in no way indicates that lodging a complaint would have
  been futile. 

       ¶  44.  Thus, the only exception that remains as a possibility is the
  school's failure to maintain a harassment policy pursuant to 16 V.S.A. §
  565(b).  The school's anti-harassment policy was published to students and
  parents within the school's student handbook.  The record contains copies
  of the handbook for academic years 1997-98 through 2000-01, which are
  substantially identical.  In substance, the policy: defines harassment,
  both in general and with reference to specific categories; states that any
  unlawful harassment by a member of the school, including a student, is a
  policy violation; states that the school "will act to investigate all
  complaints of harassment, either formal or informal, verbal or written";
  provides that any person found to violate the policy may be subject to
  consequences ranging from warning to expulsion or termination; and
  prohibits retaliation.
   
       ¶  45.  In most respects, the policy comports with the original
  version of 16 V.S.A. § 565, which was in effect at all times relevant to
  this case. (FN4)  That version of § 565(a) required each school's policy to
  include a statement prohibiting unlawful harassment of students, a
  definition of harassment pursuant to 16 V.S.A. § 11(a)(26), and
  consequences and appropriate remedial action for violators.  As noted
  above, the Harwood policy contains each of these elements.  Section
  565(b)(1)-(3) required each school district to establish rules for dealing
  with harassment, including procedures for reporting harassment, a procedure
  for publicizing the appropriate state and federal agencies to receive
  harassment complaints, and a statement that retaliation is unlawful under
  the VPAA.  Although the Harwood policy's statement concerning retaliation
  did not mention the VPAA, it substantially complied with § 565(b)(3) in
  that it clearly stated that retaliation was prohibited.

       ¶  46.  It is not clear, however, that the school adopted procedures
  for reporting harassment or for publicizing the government agencies
  available to field complaints.  Although the record contains no rules
  promulgated by the school concerning these issues, the policy does speak to
  the issue of reporting, stating that the school "will act to investigate
  all complaints of harassment, either formal or informal, verbal or
  written."  Thus, the policy makes clear that the school as an institution
  stood ready to receive even informal, oral reports of harassment and act
  upon them.  Accordingly, we do not find this discrepancy between the
  school's anti-harassment policy and § 565 sufficient to conclude that the
  school did not maintain a policy pursuant to § 565.  Similarly, we conclude
  that the absence of a procedure for publicizing to students the
  availability of governmental actors to receive complaints does not show
  that the school failed to maintain a policy pursuant to § 565(b),
  especially given plaintiff's testimony that she deliberately chose not to
  report the alleged harassment even to school officials.  

       ¶  47.  Therefore, plaintiff cannot demonstrate that any of the
  exceptions to the exhaustion requirement applies here.  Because there is no
  dispute that she did not even begin to engage, let alone exhaust, the
  school's remedial process, we conclude that her VPAA claim founders and was
  properly dismissed by the superior court.
   
       ¶  48.  In the context of a summary judgment motion, "[w]here the
  moving party does not bear the burden of persuasion at trial, it may
  satisfy its burden of production by showing the court that there is an
  absence of evidence in the record to support the nonmoving party's case." 
  Ross v. Times Mirror, Inc., 164 Vt. 13, 18, 665 A.2d 580, 583 (1995).  Upon
  such a showing, "[t]he burden then shifts to the nonmoving party to
  persuade the court that there is a triable issue of fact."  Id.  As
  explained above, plaintiff cannot demonstrate a triable issue as to the
  exhaustion of remedies or the existence of an exception to the exhaustion
  requirement.  Accordingly, while we reject the deliberate indifference
  standard applied by the trial court, we nonetheless affirm the trial
  court's grant of summary judgment in favor of defendants.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  The court also dismissed plaintiff's second count, which alleged
  negligence per se based on the school's purported failure to adopt and
  maintain an anti-harassment policy in violation of 16 V.S.A. § 565. 
  Because plaintiff has not pursued this point on appeal, we do not address
  it.

FN2.  The current version of 16 V.S.A. § 11(a)(26) expands on the former
  definition by including "incidents of verbal, written, visual, or physical
  conduct based on or motivated by a student's or a student's family member's
  actual or perceived race, creed, color, national origin, marital status,
  sex, sexual orientation or disability."

FN3.  The Court announced the same holding in Burlington Industries, Inc. v.
  Ellerth, 524 U.S. 742, 764-65 (1998), decided the same day as Faragher.

FN4.  Plaintiff attended Harwood from 1995 until the 2000 Christmas break. 
  Section 565 was amended in May 2000, with an effective date of August 1,
  2001 for each school district to come into compliance.  1999, No. 120 (Adj.
  Sess.), § 11(b).