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JEANETTE CHANCELLOR, Plaintiff, v. POTTSGROVE SCHOOL DISTRICT, et al., 
Defendants.

CIVIL ACTION NO. 06-1067

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

501 F. Supp. 2d 695; 2007 U.S. Dist. LEXIS 58045

August 8, 2007, Decided 

OPINION
MEMORANDUM
EDUARDO C. ROBRENO, J.
Plaintiff Jeanette Chancellor, a former student at Pottsgrove High School, 
had an approximately ten-month-long sexual relationship with her band 
teacher, Defendant Christian Oakes, during the 2003-04 school year, her 
senior year of high school. On March 10, 2006, Plaintiff instituted the 
present suit against Oakes, as well as against Pottsgrove School Dis-trict 
and Joyce Wishart, the principal of the high school. 1

1   For convenience, the school district  [*2] and Wishart will be referred 
to collectively as "Pottsgrove," except where neces-sary to distinguish 
between these two defendants. Oakes will be treated separately.
The complaint also named as a defendant Joseph Bender, the as-sistant 
superintendent of the school district, but he has since been dismissed from 
the case (doc. no. 26). 
Pottsgrove failed to include the statute of limitations as an affirma-tive 
defense in its answer, but has since moved to amend its pleading. For the 
reasons that follow, the Court will deny Pottsgrove's motion to amend its 
answer.
After granting in part and denying in part both Oakes's and Pottsgrove's 
motions to dismiss (doc. nos. 12, 20), the following five claims remain: (1) 
Title IX against Pottsgrove, (2) ß 1983 (Fourteenth Amendment) against 
Wishart, in her individual capacity, (3) intentional infliction of emo-tional 
distress against Wishart, (4) ß 1983 (Fourth and Fourteenth Amend-ments) 
against Oakes, and (5) inten-tional infliction of emotional dis-tress against 
Oakes.
Both Oakes and Pottsgrove have moved for summary judgment. For the reasons 
that follow, both parties' mo-tions will be denied.

I. BACKGROUND 
Oakes and Plaintiff began their sexual relationship  [*3] in the sum-mer of 
2003, at the end of Plaintiff's junior year of high school, shortly after 
Oakes selected Plaintiff for the position of drum major, a leadership 
position in the school band. Oakes, born January 25, 1974, was twenty-nine 
years old at the time. Plaintiff, born February 14, 1986, was seventeen years 
old at the time. From an early age, Plaintiff struggled with depression, 
anorexia, and bulimia.
Oakes and Plaintiff had sex ap-proximately thirty-eight times during the 
summer and fall of 2003, ceased their relationship from December 2003 to late 
January 2004, and had sex an-other approximately eight times be-tween late 
January 2004 and April 2004. 2 The sexual encounters took place during band 
camp in the summer of 2003, in the closet in the band room at the school and 
in Oakes's car during the 2003-04 school year, and in a hotel during the 
band's school trip to Virginia Beach in April 2004.

2   The precise dates of the sex-ual encounters is relevant be-cause the 
statute of limitations is at issue here. While the ma-jority of the sexual 
encounters took place prior to March 10, 2004, the operative date for statute 
of limitations purposes, approximately three sexual en-counters took place  
[*4] after March 10, 2004, placing them squarely within the actionable 
period. 
In April 2004, Oakes was apparently also engaged in a sexual relationship 
with another female student, identi-fied to protect her privacy as A.P. In 
late April 2004, A.P.'s mother re-ported the suspected relationship to the 
Lower Pottsgrove Township Police Department. The police, after conduct-ing an 
investigation that included in-terviewing Plaintiff, arrested Oakes. 
Ultimately, Oakes pled guilty in the Montgomery County Court of Common Pleas 
to two counts of corruption of a minor (one count for Plaintiff, one count 
for A.P.), in violation of 18 Pa. Cons. Stat. ß 6301. 3 Following Oakes's 
arrest, Plaintiff attempted suicide and was repeatedly hospital-ized for 
psychiatric reasons, includ-ing major depressive disorder. 

3   The statute reads in relevant part: 
 
   Whoever, being of the age of 18 years and upwards, by any act corrupts or 
tends to corrupt the morals of any minor less than 18 years of age, or who 
aids, abets, entices or encourages any such mi-nor in the commission of any 
crime, or who knowingly assists or encourages such minor in violating his or 
her parole or any order of court, commits a misde-meanor of the first  [*5] 
degree. 

 
18 Pa. Cons. Stat. ß 6301(a)(1). 
The crux of Plaintiff's case against Pottsgrove centers on whether Wishart, 
the school principal, was aware of the sexual relationship be-tween Plaintiff 
and Oakes, and whether, after becoming aware, Wishart was deliberately 
indifferent to the relationship. Plaintiff contends that Wishart was aware; 
Wishart contends that she was not. Plaintiff bases her contention on two 
incidents.
First, in summer 2003, a school board member told the school board 
su-perintendent, Dr. Sharon Richardson, that he had seen Oakes leaving a 
res-taurant with a female student. Dr. Richardson expressed her concerns to 
Wishart. Wishart, in turn, spoke with Oakes about the incident. The student 
in question was Plaintiff. Oakes told Wishart that he had taken both drum 
majors (Plaintiff and a male student) out for lunch following their uniform 
fittings. Wishart claims that Oakes's response satisfied her and that she 
reported Oakes's statement back to Dr. Richardson. Dr. Richardson claims that 
Wishart never reported back to her re-garding the conversation with Oakes. 
Second, in August 2003, Plaintiff told her friend A.P. (the other female 
student with whom Oakes later had a sexual  [*6] relationship) that 
Plain-tiff and Oakes were involved in a sex-ual relationship. A.P. told her 
mother about Plaintiff's statement, and A.P.'s mother confronted Oakes about 
the allegation. Oakes, in turn, ar-ranged a meeting with Wishart. Accord-ing 
to Wishart, "[Oakes] called me on the phone and he said that he would like to 
meet with me, because appar-ently one of the students had gone home and said 
something to her mother about something occurring between [Oakes] and another 
student. . . . I assumed that it was romantic or some-thing of that nature." 
Wishart Depo. at 54, 57. According to Wishart, at her meeting with Oakes, she 
asked him what it meant that Plaintiff had told A.P. that "something was 
going on" be-tween Oakes and Plaintiff. Id. at 64. Oakes replied that it was 
"something sexual. And at that point he blushed about it and appeared to be 
embar-rassed." Id. When asked "Did you ques-tion him about it?," Wishart 
re-sponded: "I did not. I did not, be-cause he brought it to me, and he said 
he would like to have it cleared up, and so I told him that I would make 
arrangements to meet with the girls and to get to the bottom of it." Id. 
Wishart claims she investigated the matter by speaking  [*7] with A.P., 
Plaintiff, A.P.'s mother, and Plain-tiff's parents. Id. at 73-92. Accord-ing 
to Plaintiff and Plaintiff's par-ents, Wishart never contacted or spoke with 
any of them regarding the allega-tion. Plaintiff Depo. at 112, 121; Douglas 
Chancellor Depo. at 22; Mary Jane Chancellor Depo. at 30.
Wishart also claims that she called Dr. Richardson, the superintendent, to 
report the allegation. Wishart Depo. at 68-69. Dr. Richardson has no 
recol-lection of this phone call, Richardson Depo. at 45-51, or indeed of 
"anyone telling her about any rumor and/or in-formation that Oakes was having 
an in-appropriate and/or intimate and/or sexual relationship with a School 
Dis-trict student prior to April 27, 2004," the day the police alerted the 
assistant superintendent of A.P.'s al-legation. Pottsgrove's Resp. to Pl.'s 
First Set of Interr., at 3.
...

9   While the verification was attached to the brief filed with the Clerk, it 
was, for some rea-son, not submitted on the ECF system. 

C. Application 

1. Pottsgrove's motion for summary judgment 
Plaintiff has three claims still pending against the Pottsgrove defen-dants: 
Title IX against the school district; ß 1983 (Fourteenth Amend-ment) against 
Wishart; and intentional infliction of emotional distress against Wishart. 
a. Title IX against Pottsgrove
Plaintiff alleges that Pottsgrove violated Title IX of the Education 
Amendments of 1972. Title IX provides that "[n]o person . . . shall, on the 
basis of sex, be excluded from par-ticipation in, be denied the benefits of, 
or be subjected to discrimination under any education program or activ-ity 
receiving Federal financial assis-tance." 20 U.S.C. ß 1681(a).
A private individual can both en-force Title IX, Cannon v. Univ. of Chicago, 
441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979),  [*20] and recover 
monetary damages under it, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 
60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992). See Warren ex rel. Good v. 
Reading Sch. Dist., 278 F.3d 163, 168 (3d Cir. 2002). However, a plaintiff 
can recover money damages under Title IX for a teacher's miscon-duct only 
upon showing that an "appro-priate person" had "actual notice of, and [wa]s 
deliberately indifferent to, the teacher's misconduct." Gebser v. Lago Vista 
Ind. Sch. Dist., 524 U.S. 274, 277, 290, 118 S. Ct. 1989, 141 L. Ed. 2d 277 
(1998).
In other words, under the teachings of Gebser, a school district may be 
liable for a teacher's sexual rela-tionship with a student if (1) the school 
district received federal fi-nancial assistance, (2) the student was 
subjected to discrimination on the basis of sex, and (3) an "appropriate 
person" (4) had actual notice of, and was deliberately indifferent to, the 
discrimination.
Pottsgrove does not contest that Plaintiff succeeds on factors one and three. 
There is no dispute here that Pottsgrove received federal financial 
assistance, bringing it within the am-bit of Title IX. And Pottsgrove does 
not dispute that Wishart is an "appro-priate person," defined by the Supreme 
Court as an "official of the school district who at a  [*21] minimum has 
authority to institute corrective measures on the district's behalf." Gebser, 
524 U.S. at 277; cf. Warren, 278 F.3d at 170 ("[W]e think it is ob-vious from 
the [Supreme] Court's dis-cussion [in Gebser ] that knowledge of a principal 
can be sufficient in an appropriate case." (citing Gebser, 524 U.S. at 
291-92)).
Instead, Pottsgrove focuses on fac-tors two and four. As to factor two, 
Plaintiff was indeed "subjected to discrimination on the basis of sex." As to 
factor four, actual notice and deliberate indifference, there is a disputed 
issue of material fact.
(I) "Subjected to discrimination on the basis of sex"
Pottsgrove argues that Plaintiff was not "subjected to discrimination on the 
basis of sex." In Gebser, the Supreme Court held that a teacher's "sexual[] 
harassment and abuse[] [of] a student" constitutes "discrimi-nat[ion] on the 
basis of sex." 524 U.S. at 281 (citing Franklin, 503 U.S. at 75). The 
question is thus whether Plaintiff was "sexually harassed" by Oakes such that 
it constituted a vio-lation of Title IX.
Pottsgrove argues that Plaintiff was not "harassed" because she "con-sented" 
to sex with Oakes. Indeed, in her deposition, Plaintiff testified that the 
sexual relationship  [*22] was "consensual." See Plaintiff Depo. at 133-34 
("Q: All the intimate rela-tions you had with [Oakes] were con-sensual; 
right? A: Yes. . . . Q: Did you choose to have sex with [Oakes]? A. Yes."). 
Pottsgrove, however, con-flates the question of whether Plain-tiff 
"consented" to Oakes's sexual ad-vances with the question of whether 
Plaintiff (a high school student in Oakes's class) had the legal capacity to 
consent to the sex. If Plaintiff lacked the capacity to consent, of course, 
she did not have the capacity to "welcome" Oakes's sexual advances. 10

10   The proper inquiry for sex-ual harassment purposes is not "consent" or 
"voluntariness," but rather "welcomeness." See Meritor Sav. Bank, FSB v. 
Vinson, 477 U.S. 57, 68, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) ("The 
gravamen of any sexual harassment claim is that the alleged sexual advances 
were 'unwelcome.'"). 
There are two helpful analogs in determining whether Plaintiff had the 
capacity to consent to sex with Oakes. The first is the custodial situation, 
in which the aggressor, by virtue of his 11 position of custody or authority 
over the aggrieved party, renders the aggrieved party incapable of offering 
her effective consent. For instance, a prisoner lacks the capacity to  [*23] 
consent to sex with her prison guard. See Deborah M. Golden, It's Not All In 
My Head: The Harm of Rape and the Prison Litigation Reform Act, 11 Car-dozo 
Women's L.J. 37, 39 (2004) ("[I]n a custodial context, consent is a le-gal 
impossibility: the federal govern-ment, the District of Columbia, and 
forty-seven states now criminalize sexual contact between correctional staff 
and prisoners."). Some states have taken this principle to its next logical 
step, explicitly providing that a student cannot consent to sex with her 
teacher. See, e.g., Ga. Code ß 16-6-5.1 ("A . . . custodian or su-pervisor of 
another person . . . com-mits sexual assault when he or she en-gages in 
sexual contact with another person . . . who is enrolled in a school . . . 
and such actor has super-visory or disciplinary authority over such other 
person."); Randolph v. State, 269 Ga. 147, 496 S.E.2d 258 (Ga. 1998) 
(upholding conviction for principal's sexual relationship with student); 
State v. Eastwood, 243 Ga. App. 822, 535 S.E.2d 246, 247 (Ga. Ct. App. 2000) 
(noting that it is the po-sition of the State of Georgia "that a student 
enrolled in a school cannot legally consent to acts of sexual in-timacy with 
the student's school teacher"). 

11   To mirror the  [*24] factual scenario at issue here, a male teacher 
having sex with a female student, when examining hypo-thetical or universal 
scenarios in this Memorandum the Court will employ the masculine form to 
re-fer to the teacher (or analog) and the female for the student (or analog). 
This decision is meant simply for the ease of the reader. 
The second helpful analog is the premise of statutory rape (or statu-tory 
sexual assault) and ages of con-sent. A minor under a certain age is legally 
unable to offer her consent to have sex with an adult over a certain age, 
even if the sexual conduct was free of coercion or duress. See, e.g., 18 Pa. 
Cons. Stat. ß 3122.1 (defining "statutory sexual assault" as a "per-son 
engag[ing] in sexual intercourse with a complainant under the age of 16 years 
[if] that person is four or more years older than the complainant and the 
complainant and the person are not married to each other"). Relatedly, many 
states have "corruption of mi-nors" laws, which are routinely used to hold 
adults criminally liable for engaging in sexual conduct with six-teen-and 
seventeen-year-olds -- minors who are above the age of consent for statutory 
rape purposes. See 18 Pa. Cons. Stat. ß 6301(a)(1)  [*25] (out-lawing the 
"corruption of minors"); Commonwealth v. Tharp, 525 Pa. 94, 575 A.2d 557 (Pa. 
1990) (upholding convic-tion for sex with sixteen-year-old). Moreover, the 
alleged consent of the minor is not a defense to a corruption of minors 
charge. See Commonwealth v. Decker, 698 A.2d 99, 100 (Pa. Super. Ct. 1997). 
In other words, at least in the corruption of minors context, a minor lacks 
the capacity to consent to sex with an adult.
Thus, one line of precedent deals with positions of authority and cus-tody. 
The other line deals with age. The teacher-student relationship en-capsulates 
both of these lines, with teachers exercising custodial control over high 
school students in their classrooms, see 24 Pa. Cons. Stat. ß 13-1317 
(providing that teachers exer-cise in loco parentis authority over students 
while the students are in at-tendance at the school). Under these 
circumstances, the Court concludes that Plaintiff did not have the legal 
capacity to welcome Oakes's sexual ad-vances.
This is the result obtained by many courts, which have implicitly pre-sumed, 
without much discussion, that a high school student's having sexual contact 
with her teacher constitutes sexual harassment or abuse. 12 See, e.g., 
Gebser, 524 U.S. at 277-78, 281  [*26] (presuming that a high school 
student's sexual relationship with her teacher, while the student was a 
freshman and sophomore, was "sexual harassment"); P.H. v. Sch. Dist. of 
Kansas City, 265 F.3d 653, 659 (8th Cir. 2001) (finding that the two-year 
sexual relationship between high school student and his teacher (court was 
silent on student's age or year in school) was "sexual abuse"); King v. 
Conroe Ind. Sch. Dist., 2005 U.S. Dist. LEXIS 36176, 2005 WL 1667803, at *1, 
4 (S.D. Tex. July 15, 2005) (as-suming that three-year sexual rela-tionship 
between student and teacher, beginning when plaintiff was fourteen years old, 
constituted "sexual harass-ment"); Doe v. Sch. Admin. Dist. No. 19, 66 F. 
Supp. 2d 57, 62 (D. Me. 1999) ("Sexual relations between a mi-nor student and 
teacher is considered sexual harassment even if the teacher does not 
expressly threaten to inflict a penalty . . . ."); see also Davis v. Monroe 
County Bd. of Educ., 526 U.S. 629, 675, 119 S. Ct. 1661, 143 L. Ed. 2d 839 
(1999) (Kennedy, J., joined by Rehnquist, C.J., and Scalia and Tho-mas, JJ., 
dissenting) ("A teacher's sexual overtures toward a student are always 
inappropriate . . . ."). And one appellate court, relying on a jury's adverse 
verdict, rejected the teacher's argument that  [*27] he could not have 
deprived the high school student of her constitutional rights because she had 
consented to the sexual relationship. Wilson v. Webb, 2000 U.S. App. LEXIS 
23585, 2000 WL 1359624, at *9 (6th Cir. Sept. 13, 2000) (unpublished). 

12   Neither the parties nor this Court, in its own research, has identified 
a case holding other-wise. 
Somewhat to the contrary is the in-dividualized circumstances approach 
endorsed by the Federal Department of Education (DOE), which has issued a 
formal "Guidance" on the subject of sexual harassment under Title IX. See 
Office of Civil Rights, Dep't of Educ., Revised Sexual Harassment Guid-ance: 
Harassment of Students by School Employees, Other Students, or Third Parties 
(Jan. 2001), available at 
http://www.ed.gov/about/offices/list/ocr/docs/shguide.pdf [hereinafter DOE ;
Sexual Harassment Guidance]. 13 The DOE recognizes that there are "particular 
issues of welcomeness if the alleged harassment relates to alleged 
'consen-sual' sexual relationships between a school's adult employees and its 
stu-dents." Id. at 8. The DOE divides stu-dents into three groups: 
elementary, secondary, and post-secondary. With regard to elementary and 
post-secondary students, the answers are clear-cut: elementary  [*28] school 
students lack, and post-secondary school students possess, the capacity to 
welcome sexual conduct from a teacher.

13   The DOE's Sexual Harassment Guidance provides just that: guidance. It is 
not binding on this Court, but rather a resource on the DOE's position. It 
sets out the "compliance standards that [the DOE] applies in inves-tigations 
and administrative en-forcement of Title IX," as "dis-tinguish[ed] from the 
standards applicable to private litigation for money damages." DOE Sexual 
Harassment Guidance at I. As the DOE explained in its request for comments, 
the Sexual Harassment Guidance is designed to "provide educational 
institutions with guidance about the standards un-der Title IX . . . that 
[the DOE] use[s], and that institutions should use, to investigate and 
resolve allegations of sexual harassment of students." Office of Civil 
Rights, Dep't of Educ., Notice, Revised Sexual Harassment Guidance: 
Harassment of Students by School Employees, Other Stu-dents, or Third 
Parties, 65 Fed. Reg. 66092, 66092 (2000). 
For high school students, and espe-cially relevant to this case, the line 
drawn by the DOE is more nice than bright. The DOE lists a number of fac-tors 
to be considered in  [*29] deter-mining whether the conduct could be 
considered "welcome." 14 Age, relation-ship of the student and teacher, and 
disability, according to the DOE, should be considered in the 
totality-of-the-circumstances test. 

14   The DOE provides:
 
   In cases involving secondary students, there will be a strong presumption 
that sexual conduct between an adult school employee and a student is not 
consensual. In cases involving older secon-dary students, subject to the 
presumption, [the DOE] will consider a number of factors in determining 
whether a school employee's sex-ual advances or other sexual conduct could be 
considered welcome. 

 
DOE Sexual Harassment Guidance at 8 (footnote omitted). 
The DOE Sexual Harassment Guidance with respect to sexual conduct between a 
teacher and high school students as-signed to his class is flawed for three 
reasons. One, the DOE conflates consent with capacity to consent. (As 
discussed above, Pottsgrove commits the same error.) Again, while a stu-dent 
may have seemingly willingly en-gaged in the sexual conduct, the stu-dent 
might nevertheless have lacked the legal capacity to do so. Two, the 
totality-of-the-circumstances test, imported from the Title VII 
jurispru-dence, is inapposite  [*30] because under Title VII, the question is 
not whether the subordinate employee had the capacity to welcome the 
superior's sexual advances, but rather whether the subordinate in fact did 
so. Three, as a matter of policy, the totality-of-the-circumstances test is 
unwork-able. Under the DOE Sexual Harassment Guidance's factors for 
"welcomeness," a high school teacher's having sex with some students might 
violate Title IX, while the same teacher's having sex with other students in 
the same class, because they are of a different age or mental capacity or the 
sex oc-curs under slightly different circum-stances, would not. In this 
situation, a murky line is worse than a bright one.
The Court therefore holds that a high school student who is assigned to a 
teacher's class does not have the capacity to welcome that teacher's physical 
sexual conduct. 15 Under these circumstances, the teacher's conduct is deemed 
unwelcomed. Unwelcome sexual conduct constitutes a sexually hostile 
educational environment, a form of sexual harassment. And sexual harass-ment 
constitutes discrimination on the basis of sex. Thus, a teacher who has sex 
with a high school student who is assigned to his class discriminates 
against  [*31] the student on the ba-sis of sex in violation of Title IX.

15   Indeed, here, the school su-perintendent, Dr. Richardson, testified in 
her deposition that, under the district's sexual har-assment policy, "[b]y 
definition, [a teacher's sexual conduct is] unwelcomed if it's with a 
stu-dent." Richardson Depo. at 105. 


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