Schultzen v. Woodbury Central Community School District (187 F. Supp. 2d 1099, 2002)

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT WOODBURY CENTRAL COMMUNITY SCHOOL DISTRICT’S MOTION TO DISMISS

BENNETT, Chief Judge.

TABLE OF CONTENTS

I. INTRODUCTION.1101

1103 II. LEGAL ANALYSIS.

1103 A. Standard Governing 12(b)(6) Motion To Dismiss.

1104 B. The School District’s Motion.

1104 1. Punitive damages under section 1983 and Chapter 216.

1104 2. Availabilitg of punitive damages in general under Title IX....

1109 3. Can a prevailing plaintiff recover punitive damages against a school district under Title IX?.

a. The common-law tradition of municipal immunity: City of Newport v. Fact Concerts, Inc. o t — i r-H

b. Newport’s analytical fi-amework: Two-part inquiry. o rH rH

1112 c. The common-law tradition of the availability of all remedies: Frankin v. Gwinnett County

cl. Reconciling Franklin with Newport.1113

e. District courts’ treatment of Title IX, municipal entities, and punitive damages: An overview.1114

f. Step one: Newport as the starting point.1122

g. Step two: Public policy considerations .1122

h. Newport as the ending point.1125

III. CONCLUSION. .1128

This case presents a fundamental question under Title IX: whether punitive damages are available against a school district for alleged violations of Title IX. No court of appeals has addressed this issue; and, while a handful of district courts have undertaken the task of resolving this question, a consensus has not been reached. The crux of the matter necessitates reconciling two well-established common-law traditions. Under one tradition, local governmental entities are immune from awards of punitive damages. Under the other tradition, once a cause of action has been recognized, any appropriate remedies, including punitive damages, are presumptively available. In order to resolve the question raised in this motion to dismiss, the court must give due weight to these traditions, examine the scant legislative history of Title IX and its predecessor, Title VI, explore the contours of public policy, and ultimately discern congressional intent. In the final analysis, this case presents a “close call,” but, in the end, the stronger of the two traditions must prevail, at least until Congress speaks on this issue.

I. INTRODUCTION

This matter is before the court on defendant Woodbury Central Community School District’s Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). In this civil rights action, the plaintiff (“Schultzen”) asserts four counts of discrimination. Count I alleges violation of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., against defendant Woodbury Central Community School District for alleged discriminatory treatment of females in the school system. Count II avers constitutional violations against both defendants, which Schultzen seeks to vindicate vis-a-vis 42 U.S.C. § 1983. Count III similarly alleges the defendants violated Schultzen’s constitutional rights. However, Count III asserts a state-law claim pursuant to the Iowa Civil Rights Act, Iowa Code Chapter 216. Finally, on behalf of a class of other women against whom the defendants have allegedly discriminated based on their gender, Count IV of Schultzen’s complaint requests that this court certify this litigation as a class action.

Because this motion to dismiss presents purely legal issues, the underlying facts of the litigation are not pertinent. However, in order to contextualize this motion, the court will engage in a brief synopsis of the facts.

April Marie Schultzen (“Schultzen”) was a student-athlete in the Woodbury Central Community School District system. The defendants in this action are the Wood-bury Central Community School District (“the school district”) and Larry Bumsted (“Bumsted”). Bumsted is employed as a police officer for the City of Moville, Iowa, and Schultzen has sued him in both his individual and official capacities.

On September 9, 2000, defendant Bumsted, a local law enforcement officer, observed Schultzen, who was eighteen years of age at the time, smoking a cigarette at the Conoco convenience store in Moville, Iowa. After inquiring whether Schultzen was involved in any interscholastic athletic activities and learning that Schultzen was a member of the women’s volleyball team, Bumsted reported the incident to Mr. Wisniewski, the principal of the Woodbury Central high school. On September 12, 2000, Mr. Wisniewski confronted Schultzen with Bumsted’s allegation that he observed her smoking. Because smoking violated the school district’s “Good Conduct Code,” Schultzen was suspended from all extra-curricular activities for a period of six weeks. The situation worsened for Schultzen when, on September 12, 2000, her mother questioned Mr. Wisniewski about the suspension and was informed that the suspension had been increased to twelve weeks because Schult-zen was a repeat offender, having previously violated the school district’s Good Conduct Code. The school board affirmed the suspension on September 25, 2000.

In her complaint, Schultzen avers that female athletes are treated more severely for violating the school district’s Good Conduct Code than are similarly situated male athletes. Specifically, she contends that male students with similar or worse violations of the Good Conduct Code are treated substantially better than aré female students. To support her argument, Schultzen points to the school district’s alleged treatment of a male football player. According to Schultzen, the male student violated the Good Conduct Code on three separate occasions. On one occasion in particular, a police officer apprehended this individual for drinking alcohol. The officer issued the student a citation for being a minor in possession of alcohol, but the school board did not suspend him from participating in extra-curricular activities, ostensibly because he was on private property at the time he was caught drinking.

The school district moved to dismiss portions of Schultzen’s complaint on the ground that portions of the complaint fail to state a claim upon which relief can be granted. Namely, the school district asserts that Schultzen’s punitive damage claims are not cognizable under Title IX, section 1983, nor under Chapter 216 as against the school district. First, the school district contends that it is immune as a matter of law from an award of punitive damages under section 1983. Second, the school district maintains that punitive damages cannot be assessed against governmental entities, including public school districts, under Title IX. And last, the school district asserts that Chapter 216 of the Iowa Civil Rights Act does not provide for the recovery of punitive damages.

Schultzen filed a resistance on November 5, 2001. However, she agreed that punitive damages are not available against defendant Woodbury Central Community School District under either 42 U.S.C. § 1983 or Chapter 216 of the Iowa Civil Rights Act. Schultzen did not, therefore, resist those portions of the defendant’s motion.

However, she did resist the defendant’s assertion that Title IX does not provide for an award of punitive damages against a public school district because no court of appeals has of this date decided that issue. Schultzen asserts that she has pled sufficient facts to support a finding of ongoing violations by the defendants, which would allow for an award of punitive damages. Accordingly, she requests that the court deny the defendant’s motion to dismiss.

II. LEGAL ANALYSIS

A. Standard Governing 12(b)(6) Motion To Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides:

(b) Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted....

Fed. R. Civ. P. 12(b)(6).

“A dismissal under Federal Rule of Civil Procedure 12(b)(6) is essentially a ruling on a question of law.” North Star Internal v. Arizona Corp. Comm’n, 720 F.2d 578, 580 (9th Cir.1983) (citing Yuba Consolidated Gold Fields v. Kilkeary, 206 F.2d 884, 889 (9th Cir.1953)). In considering a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the court must “accept the complaint’s factual allegations as true and construe them in the light most favorable to [the plaintiff].” Whitmore v. Harrington, 204 F.3d 784, 784 (8th Cir.2000); accord Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Anderson v. Franklin County, Mo., 192 F.3d 1125, 1131 (8th Cir.1999); Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir.1999); Midwestern Mach. v. Northwest Airlines, Inc., 167 F.3d 439, 441 (8th Cir. 1999); Valiant-Bey v. Morris, 829 F.2d 1441, 1443 (8th Cir.1987). A complaint should be dismissed under Rule 12(b)(6) only if, taking the allegations as true, “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Knapp v. Hanson, 183 F.3d 786, 788 (8th Cir.1999) (“A motion to dismiss should be granted only if ‘it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.’ ”) (quoting Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986), and citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). This court also observes that a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) does not test whether the plaintiff will prevail on the merits, but rather tests whether the plaintiff has properly stated a claim upon which relief can be granted. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

Furthermore, pertinent to this 12(b)(6) motion, the court is mindful that in treating the factual allegations of a complaint as true pursuant to Rule 12(b)(6), the court must “reject conclusory allegations of law and unwarranted inferences.” Silver v. H & R Block, Inc., 105 F.3d 394, 397 (8th Cir.1997) (citing In re Syntex Corp. Securities Lit., 95 F.3d 922, 926 (9th Cir.1996)); Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990) (the court “do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts,” citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987), and 5 Charles A. Weight And Arthur R. Miller, Federal Practice And Procedure § 1357, at 595-97 (1969)); see also LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1103 (6th Cir.1995) (the court “need not accept as true legal conclusions or unwarranted factual inferences,” quoting Morgan, 829 F.2d at 12). Conclu-sory allegations need not and will not be taken as true; rather, the court will consider whether the facts alleged in the complaint, accepted as true, are sufficient to state a claim upon which relief can be granted. Silver, 105 F.3d at 397; Westcott, 901 F.2d at 1488.

B. The School District’s Motion 1. Punitive damages under section 1983 and Chapter 216

The court agrees with the parties that an award of punitive damages is not available against the school district under either section 1983 or Chapter 216. Compare City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (“[A] municipality is immune from punitive damages under 42 U.S.C. § 1983.”), with Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 738, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (stating public school districts are considered municipal entities); see Schwarz v. Northwest Iowa Cmty. College, 881 F.Supp. 1323, 1338-40 (N.D.Iowa 1995) (recognizing “[t]he Iowa Supreme court has consistently rejected the argument that [Chapter 216] authorized punitive damages.”); Smith v. ADM Feed Corp., 456 N.W.2d 378, 382-88 (Iowa 1990) (holding that neither courts nor administrative agencies are authorized to award punitive damages under the Iowa act). Therefore, the court will grant the school district’s motion to dismiss Sehultzen’s claims for punitive damages against the school district under Counts II (§ 1983) and III (Chapter 216) of her complaint.

2. Availability of punitive damages in general under Title IX

The school district also seeks dismissal of Schultzen’s claim for punitive damages on the ground that punitive damages are not available against the school district under Title IX. Title IX provides in pertinent part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681 (2000). Under Title IX, an educational entity receiving federal funding may be held hable if students suffer discriminatory treatment, and the United States Supreme Court has recognized that Title IX provides for an implied private cause of action. See Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Monetary damages are also available for violations of Title IX. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 74-75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

However, neither the Supreme Court nor the Eighth Circuit, nor any other circuit court for that matter, has determined whether punitive damages are recoverable in a Title IX action against municipal entities. In addition, this court was unable to locate any Northern District of Iowa decisions regarding the issue of municipal exposure to punitive damages under Title IX. This court did uncover one Southern District of Iowa case in which the court dismissed the plaintiffs claim for punitive damages against the defendant school district on the ground the school district was immune from an award of punitive damages under Title IX. See Murphy v. Pleasantville Sch. Dist., 2000 WL 33361989, at *7 (S.D.Iowa May 4, 2000). Understandably, however, that decision provides little guidance because the plaintiff in Murphy did not resist that portion of the defendant’s motion to dismiss. Id. Here, the school district argues that the plaintiffs punitive damage claim should be dismissed because the school district is a municipality and is immune from punitive damages. Schultzen argues that punitive damages are allowed pursuant to the Supreme Court’s decision in Franklin, which opined that “all appropriate relief’ should be available under Title IX. Franklin, 503 U.S. at 69, 112 S.Ct. 1028.

Eighth Circuit easelaw regarding a related statute, the Rehabilitation Act of 1973, § 504, as amended, 29 U.S.C. § 794 (“Section 504”), provides clear support for the proposition that the Eighth Circuit would allow punitive damages in a Title IX action. Cf. Gorman v. Easley, 257 F.3d 738 (8th Cir.2001) (holding full spectrum of available remedies includes punitive damages); Todd v. Elkins Sch. Dist. No. 10, 105 F.3d 663, 1997 WL 7551 (8th Cir.1997) (per curiam) (table op.) (reversing district court’s dismissal, which district court based on school district’s claim of immunity); Rodgers v. Magnet Cove Pub. Schs., 34 F.3d 642 (8th Cir.1994) (holding Franklin presumption of all available remedies applied to action brought under Section 504).

In Rodgers v. Magnet Cove Public Schools, the Eighth Circuit Court of Appeals considered whether Section 504 of the Rehabilitation Act provided a cause of action for legal damages. Rodgers, 34 F.3d at 643. On summary judgment, the district court dismissed the plaintiffs claim, concluding that traditional legal damages were unavailable under Section 504. Id. The Eighth Circuit, however, reversed, and held that the Supreme Court’s decision in Franklin was controlling on the issue. Id. at 644. The court reasoned that because Title IX and Section 504 were both modeled after Title VI and because Section 504’s enforcement regime, as well as legislative history, closely track that of Title IX, the court of appeals concluded that the Franklin Court’s holding translated into the context of Section 504. Id. at 643-44. Therefore, the Eighth Circuit held that the availability of all appropriate remedies is presumed under Section 504. Id. at 644. Because the statute does not evince a congressional intent to limit or restrict the remedies available, the court concluded that “the full spectrum of remedies” is available under Section 504. Id. at 645. The court did not, however, rule upon whether punitive damages were available against the public school district defendant because the plaintiff had not sought to recover them. See id. at 643.

In Todd v. Elkins School District, an unreported decision, the Eighth Circuit reversed in part and affirmed in part the district court’s denial of the defendant school district’s motion to dismiss on the basis of qualified immunity. Todd, 105 F.3d at 663, 1997 WL 7551, at *1. In pertinent part, the court affirmed the denial of the motion to dismiss with respect to the plaintiffs claim under Section 504. Id., 1997 WL 7551, at *2. The court did not, however, discuss whether the plaintiffs claim for punitive damages against the school district was cognizable under Section 504.

Most recently, in Gorman v. Easley, the Eighth Circuit tackled head-on the issue of whether or not Section 504 permits the recovery of punitive damages. See Gorman, 257 F.3d at 745-49. Relying on Franklin and the relationship between Title IX, Title VI, and Section 504, the court held that “logic dictatesf] [that] the full panoply of remedies available under Title VI, including punitive damages, must be available under section[ ] 504.” Id. at 747. The court’s thoughtful analysis in Gorman began by recognizing that Section 504 borrows its remedies from Title VI. Id. at 745. Thus, the court reasoned that “[t]he pertinent question ... is what remedies Title VI permits.” Id.

Furthermore, Title IX was also modeled on Title VI, and in Cannon, the Supreme Court held that Title IX created an implied cause of action, despite the fact Title VI does not expressly so provide. Gorman, 257 F.3d at 745 (citing Cannon, 441 U.S. at 694-703, 99 S.Ct. 1946). In Cannon, the Supreme Court presumed that Congress knew that some lower courts had interpreted Title VI to include an implied cause of action; therefore, when Congress enacted Title IX modeled on Title VI, Congress must have intended Title IX to similarly include an implied cause of action. Cannon, 441 U.S. at 696-97, 99 S.Ct. 1946.

In Franklin, the Supreme Court arguably extended its holding in Cannon and clarified that money damages were an available remedy under Title IX. Franklin, 503 U.S. at 70-71, 112 S.Ct. 1028. Again “indulging in the assumption that Congress legislates in light of prevailing precedent,” Gorman, 257 F.3d at 746 (explaining Franklin), the Court relied on Section 504 caselaw and the 1986 and 1987 amendments to Title IX to find that Congress did not intend to limit the availability of remedies under Title IX. Franklin, 503 U.S. at 72-73, 112 S.Ct. 1028.

The Eighth Circuit held in Rodgers that the full spectrum of remedies is available under Section 504, just as it is under Title IX. Rodgers, 34 F.3d at 644. Thus, the quandary with which the Eighth Circuit was confronted in Goman was whether this “full spectrum” included punitive damages. Because “[t]he Supreme Court has long made clear that punitive damages are an integral part of the common law tradition and the judicial arsenal,” the Eighth Circuit held that “[p]unitive damages ... fall within the panoply of remedies usually available to American courts.” Gorman, 257 F.3d at 746. Therefore, the court unequivocally held that punitive damages are an available remedy for a prevailing Section 504 plaintiff, if appropriate. Id.

In addition, the Gorman court rejected a Sixth Circuit Court of Appeals decision that reached the contrary conclusion. Id. at 747-49. In Moreno v. Consolidated Rail Corp., 99 F.3d 782 (6th Cir.1996), the Sixth Circuit held that punitive damages were not available under Section 504. The Eighth Circuit noted that it was “sympathetic to the Sixth Circuit’s concerns,” but rejected the Sixth Circuit’s methodology in reaching its conclusion. Gorman, 257 F.3d at 747. The underlying concerns propelling the Sixth Circuit’s decision were (1) since the enactment of Section 504, lower courts had been in near unanimity that Section 504 did not support punitive awards, and (2) given this fact, the Civil Rights Act of 1991, which provides for punitive damages for certain classes of violations, proved that Congress did not intend the availability of punitive damages for Section 504 claims. Id. (citing Moreno, 99 F.3d at 789-91).

The Eighth Circuit opined that the Sixth Circuit’s reasoning was flawed for two primary reasons. See id. at 747-48. First, according to the Eighth Circuit, Franklin dictates that, in determining congressional intent, courts must look at the remedies available at the time of enactment. Id. at 747. With respect to Section 504, this requirement meant beginning with the enactment of Title VI in 1964, because Section 504 draws its remedies from Title VI. Id. The Sixth Circuit, however, looked at subsequent amendments to Section 504 in 1986, 1987, and 1991. Id. This approach, opined the Eighth Circuit, undermined basic principles of statutory construction:

To draw a contrary conclusion from those amendments would be to hold that Congress’ understanding of section 504 in 1986 and 1987, and its understanding of section 504 and 202 [of the Americans with Disabilities Act] in 1991 trumped Congress’ intent regarding those statutes when they were originally enacted, and in this way retroactively amended them.

Id. at 747-48 (citing Brown & Williamson Tobacco Corp. v. FDA, 158 F.3d 155, 167 (4th Cir.1998), which noted that a statute’s intent at the time of its enactment governs over subsequent congressional understandings, and, in turn, citing MCI Telecomm. Corp. v. AT & T, 512 U.S. 218, 222, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994), aff'd, 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)).

Second, while the court noted that, at the time Congress enacted Section 504 and at the time of the subsequent amendments, most courts agreed that neither Section 504 nor Title VI afforded monetary relief to prevailing plaintiffs, “the governing statutes and precedents in this case operate as a one-way rachet: once a cause of action is discovered, it automatically entitles a plaintiff to all appropriate remedies; and that finding then extends those remedies to all other interrelated statutes.” Id. at 748. Therefore, the Sixth Circuit’s concern over precedent that predated Franklin was misplaced. See id.

In short, the Eighth Circuit held, although somewhat begrudgingly, that the proper construction of Section 504 necessitated a finding that the statute supported an award of punitive damages:

Cannon, Rodgers, and Meiner postulate the creation of a private cause of action Title VI in 1964. Under Franklin we are to assume that action to have provid-all remedies. Absent any subsequent contrary instruction, we are to assume those remedies to remain available under section[ ] 504 ... today. We therefore rule, albeit not with great satisfaction, that [this] section[] permit[s] an award of punitive damages.

Id. at 749.

The majority of courts to have addressed punitive damages under Section 504 post-Franklin have reached the same conclusion as the Gorman court — like Title IX, Section 504 provides for the full spectrum of available remedies, which includes punitive damages, to a prevailing plaintiff. See Patricia N. v. Lemahieu, 141 F.Supp.2d 1243, 1253 (D.Haw.2001) (refusing to create blanket prohibition on punitive damage awards under § 504); Worthington v. City of New Haven, 1999 WL 958627, at *16 (D.Conn. Oct. 5, 1999) (“[P]revailing plaintiffs may obtain punitive damages against a private party for a violation of the ADA or Section 504....”); Proctor v. Prince George’s Hosp. Ctr., 32 F.Supp.2d 820, 829-30 (D.Md.1998) (holding punitive damages are recoverable under § 504); Hernandez v. City of Hartford, 959 F.Supp. 125, 133-34 (D.Conn. 1997) (“Since Franklin, this court held that ‘because of the relationship among Title IX, Title VI and § 504, the Supreme Court’s determination that money damages are available under Title IX is dis-positive of whether money damages are available under § 504.’ Accordingly, ‘the analysis developed in Franklin governs the inquiry under the Rehabilitation Act as well and inescapably leads to the conclusion that both compensatory and punitive damages are available.’ ”) (quoting DeLeo v. City of Stamford, 919 F.Supp. 70, 73 (D.Conn.1995)); Burns-Vidlak v. Chandler, 980 F.Supp. 1144, 1148 (D.Haw. 1997) (“ ‘[Appropriate relief by its very terms cannot be subject to blanket rules such as no punitive damages because what is appropriate very much depends on the facts of the case.”); Kilroy v. Husson College, 959 F.Supp. 22, 24 (D.Me.1997) (“The Court is persuaded that a private cause of action to enforce the provisions of § 504 exists by implication and that punitive damages are recoverable under § 504.”); Garrett v. Chicago School Reform Bd. of Trustees, 1996 WL 411319, at *4 (N.D.Ill. July 19, 1996) (refusing to strike plaintiffs claim for compensatory and punitive damages under § 504); Zaffino v. Surles, 1995 WL 146207, at *3 (S.D.N.Y. Mar. 31, 1995) (denying motion to dismiss and motion for summary judgment and rejecting defendant’s argument that § 504 does not provide for punitive damages); Kedra v. Nazareth Hosp., 868 F.Supp. 733, 740 (E.D.Pa. 1994) (“[Pjunitive damages are appropriate for § 504 violations....”); cf. W.B. v. Matula, 67 F.3d 484, 494 (3d Cir.1995) (“ ‘The traditional presumption in favor of all appropriate relief ” had not been rebutted; therefore, “plaintiffs may seek monetary damages directly under § 504”) (quoting Franklin, 503 U.S. at 66, 112 S.Ct. 1028); Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 832 (4th Cir.1994) (holding right to trial by jury is part of the full panoply of legal remedies available under Section 504); Fitzgerald v. Green Valley Area Educ., 589 F.Supp. 1130, 1138 (S.D.Iowa 1984) (interpreting “full panoply” to encompass punitive damages and holding that, while available, their assessment was not justified under the facts of the case). Furthermore, most courts that have held, post-Franklin, that punitive damages are not available under Section 504 cite to cases that antedated the Franklin decision. Dertz v. City of Chicago, 1997 WL 85169, at *20 (N.D.Ill. Feb. 24, 1997) (“Section 504 of the Rehabilitation Act does not provide for punitive damages.”) (citing Cortes v. Board of Governors, 766 F.Supp. 623, 626 (N.D.Ill. 1991)); Williams v. Express Airlines I, Inc., 1993 WL 246228, at *1 (W.D.Tenn. Apr. 9, 1993) (same) (citing Gelman v. Department of Educ., 544 F.Supp. 651, 654 (D.Colo.1982)). But see Moreno, 99 F.3d at 782 (finding that despite Franklin holding, punitive damages are not available under Section 504).

The punitive damages doctrine has been accepted as “settled law by nearly all state and federal courts, including [the Supreme Court],” for more than a century. Smith v. Wade, 461 U.S. 30, 35, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (citations omitted); accord Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15-18, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (reviewing history of punitive damages from Blaekstone through the English and American courts); International Brotherhood of Elec. Workers v. Foust, 442 U.S. 42, 53, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979) (Blaekmun, J., concurring) (noting the general rule that courts can award the “full panoply” of remedies and stating that “[pjunitive damages, being one of these tools, thus are presumptively available for use in appropriate cases”); Day v. Woodworth, 54 U.S. (13 How.) 363, 370, 14 L.Ed. 181 (1851) (observing common law principle that juries may award “exemplary, punitive or vindictive” damages). Given this backdrop, the import of the Eighth Circuit’s decisions in Gorman and Rodgers is clear: Because the Eighth Circuit interpreted Franklin, which was itself a Title IX case, and its presumption of “all appropriate remedies” to include punitive damages, the logical extension of Eighth Circuit precedent inescapably leads to the conclusion that the Eighth Circuit would likewise hold that Title IX supports the recovery of punitive damages, which is in accord with the dominant post-Franklin trend among lower courts. “[Tjhere is no adequate basis, in the Franklin opinion or elsewhere, for exempting punitive damages from the full spectrum of remedies generally available for violation of a federal statute such as Title IX” DeLeo, 919 F.Supp. at 74.

3. Can a prevailing plaintiff recover punitive damages against a school disti'ict under Title IX?

Concluding that Title IX supports an award of punitive damages, however, does not reach the heart of this motion to dismiss because determining whether punitive damages are available against a municipal entity is an entirely discrete inquiry. The sticking point of this determination is reconciling the Newport Court’s holding that “[gjiven that municipal immunity from punitive damages was well established at common law by 1871, ... ‘Congress would have specifically so provided had it wished to abolish the doctrine[ ]’ ” Newport, 453 U.S. at 263, 101 S.Ct. 2748 (quoting Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)), with the Franklin Court’s holding that “ ‘where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’ ” Franklin, 503 U.S. at 65, 112 S.Ct. 1028 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).

a. The common-law tradition of municipal immunity: City of Newport v. Fact Concerts, Inc.

In Newport, Fact Concerts sued the City of Newport, and several Newport officials, when the city reneged on a license agreement between the parties. Newport, 453 U.S. at 250, 101 S.Ct. 2748. Specifically, Fact Concerts was a corporation whose business was to promote musical concerts. Id. It received permission from the Rhode Island Depai’tment of Natural Resources to present a summer jazz series in a state park located in the city of Newport. Fact Concerts obtained the proper licenses from Newport to hold two jazz concerts in August of 1975. Id.

Pursuant to the contract, Newport had the option of cancelling the contract if it deemed cancellation would protect the public. Id. Fact Concerts, however, retained complete control over the choice of performers and the type of music to be played. Id. When a booked performer cancelled his performance, Fact Concerts was forced to find a replacement and was able to hire the band, Blood, Sweat and Tears. Id. Despite the fact Blood, Sweat and Tears was a renowned jazz group that had performed at Carnegie Hall, the city council, “fear[fulj of attracting ‘long-haired hangers-on,’ ” determined the band was a rock group and cancelled Fact Concerts’s license for both days of the music series. Id. (quoting contemporary press accounts that attributed irrational fear to the council members).

Fact Concerts sued the city, the Newport mayor, and six other city council members, alleging, inter alia, that the license cancellation amounted to content-based censorship and was a violation of Fact Concerts’s constitutional rights to free expression and due process. Id. at 252, 101 S.Ct. 2748. Fact Concerts sought both compensatory and punitive damages against the city and its officials under 42 U.S.C. § 1983. Id. The jury returned a verdict in favor of Fact Concerts and indeed awarded compensatory and punitive damages. Id. at 253, 101 S.Ct. 2748. The city appealed, arguing that punitive damages cannot be awarded against a municipality under section 1983, and the Supreme Court agreed. Id.

b. Newport’s analytical framework: Two-part inquiry

The import of the Neivport decision on Schultzen’s claim for punitive damages under Title IX has significantly less to do with the facts than it does with the Newport Court’s reasoning. In Newport, the Court set out a two part test to determine whether punitive damages were available against a municipality. First, the Court held that Congress must evince an intent to eviscerate the well-established immunity of a municipal corporation from punitive damages before courts are empowered to award punitive damages against a municipality. See id. at 264-65, 101 S.Ct. 2748. Relying on the common-law tradition of municipal immunity, which was well entrenched at the time section 1983’s predecessor was enacted in 1871, the Court reasoned that Congress must have been aware of this tradition; therefore, had it intended to abolish the doctrine, Congress would have so provided. Id. at 263, 101 S.Ct. 2748 (citing Pierson, 386 U.S. at 555, 87 S.Ct. 1213). To illustrate the pervasiveness of this common-law tradition, the Court cited several cases, dating back to 1846. See id. at 260-61, 101 S.Ct. 2748 (citing Woodman v. Nottingham, 49 N.H. 387 (1870); City of Chicago v. Langlass, 52 Ill. 256 (1869); City Council of Montgomery v. Gilmer & Taylor, 33 Ala. 116 (1858); Order of Hermits of St. Augustine v. County of Philadelphia, 4 Clark 120, 7 Pa. L.J. 124 (1847); McGary v. President & Council of the City of Lafayette, 12 Rob. 668 (La.1846)).

Enacted in light of this tradition, the Court then looked to the legislative history of section 1983 and its predecessor to ascertain Congress’s views on municipal liability. See id. at 263-66, 101 S.Ct. 2748. Noting the extreme opposition to “punishing innocent taxpayers and bankrupting local governments” in the context of amendments to the Sherman Act, the Court educed that the concerns over the extension of public liability and its effect on the public fisc “reflect policy considerations similar to those relied upon by the common-law courts in rejecting punitive damages awards.” Id. at 265-66, 101 S.Ct. 2748. Accordingly, the Court opined that the opposition to municipal liability for punitive damages voiced during the debates surrounding amendments to the Sherman Act was no “less applicable with regard to the novel specter of punitive damages against municipalities” under section 1983. Id. at 266, 101 S.Ct. 2748. Given the common-law backdrop, the pregnant silence of the text of the statute itself, and the legislative history of the act, the Court held that Congress did not intend to disturb the settled common-law immunity. Id.

However, the second step of the Newport Court’s analysis transgressed the text of the statute and its legislative history and examined “whether considerations of public policy dictate a contrary result.” See id. With respect to punitive damages, the Court outlined their function:

Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct. See Restatement (Second) Of ToRts § 908 (1979); W. PROSSER, Law Of Torts 9-10 (4th ed.1971). Regarding retribution, it remains true that an award of punitive damages against a municipality “punishes” only the taxpayers, who took no part in the commission of the tort. These damages are assessed over and above the amount necessary to compensate the injured party. Thus, there is no question here of equitably distributing the losses resulting from official misconduct. Cf. Owen v. City of Independence, 445 U.S. at 657, 100 S.Ct. at 1418. Indeed, punitive damages imposed on a municipality are in effect a windfall to a fully compensated plaintiff, and are likely accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill. Neither reason nor justice suggests that such retribution should be visited upon the shoulders of blameless or unknowing taxpayers.

Under ordinary principles of retribution, it is the wrongdoer himself who is made to suffer for his unlawful conduct. If a government official acts knowingly and maliciously to deprive others of their civil rights, he may become the appropriate object of the community’s vindictive sentiments. See generally Silver v. Cormier, 529 F.2d 161, 163 (C.A.10 1976); Bucher v. Krause, 200 F.2d 576, 586-588 (C.A.7 1952), cert. denied, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404 (1953). A municipality, however, can have no malice independent of the malice of its officials. Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself.

Id. at 266-67, 101 S.Ct. 2748.

Furthermore, the Court identified the purpose of section 1983 specifically, observing that “the deterrence of future abuses of power by persons acting under color of state law is an important purpose of § 1983.” Id. at 268, 101 S.Ct. 2748 (citing Owen v. City of Independence, 445 U.S. 622, 651, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Robertson v. Wegmann, 436 U.S. 584, 591, 98 S.Ct. 1991, 56 L.Ed.2d 554(1978)). However, for several reasons, the Court ultimately determined that this end was not better served by the imposition of punitive damages against a municipality. See id. at 267-71, 101 S.Ct. 2748. First, the Court opined that it was “far from clear” that officials would be deterred from wrongdoing by the threat of punitive awards against the city that employs them. Id. at 268-69, 101 S.Ct. 2748. Second, the Court noted that discharge of the offending official or other corrective action would occur regardless of the imposition of punitive damages. Id. at 269, 101 S.Ct. 2748. “ ‘The more reasonable assumption is that responsible superiors are motivated not only by concern for the public fisc but also by concern for the Government’s integrity.’” Id. (quoting Carlson v. Green, 446 U.S. 14, 21, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)).

Moreover, the Court reiterated the substantial costs of punitive damages awards when they are assessed against a municipality. See id. at 270, 101 S.Ct. 2748. Because the Court only one year prior to the Newport decision in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), had interpreted section 1983 to encompass liability for violations of federal statutory as well as constitutional law, “the possibility of having to assure compensation for persons harmed by abuses of governmental authority covering a large range of activity in everyday life” created “a serious risk to the financial integrity of these governmental entities.” Newport, 453 U.S. at 270, 101 S.Ct. 2748. The Court deemed this expanded liability, coupled with the fact that evidence of a tortfeasor’s wealth is traditionally admissible as a measure of the amount of punitive damages to assess, too risky of an approach to allow. See id. at 270-71, 101 S.Ct. 2748.

However, the Court arguably placed greatest emphasis on the fact that a more effective means of deterrence was available under section 1983. See id. at 269-70, 101 S.Ct. 2748. Namely, the Court determined that section 1983’s deterrent effect was sufficiently advanced by the threat of punitive damages against the individual wrongdoer:

By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based on his personal financial resources, the statute directly advances the public’s interest in preventing repeated constitutional deprivations. In our view, this provides sufficient protection against the prospect that a public official may commit recurrent constitutional violations by reason of his office .... [A] damages remedy recoverable against individuals is more effective as a deterrent than the threat of damages against a government employer.

Id. (citing Carlson, 446 U.S. at 21, 100 S.Ct. 1468) (footnote omitted).

Thus, in the Court’s view, public policy was not furthered by imposing the threat of punitive damages against a municipality. Id. at 271. Rather, public policy would be hindered by the possibility of large damages awards because the taxpayer would ultimately have to foot the bill. Id. Guided by both the purposes of section 1983 and general principles of public policy, the Court concluded that “a municipality is immune from punitive damages under 42 U.S.C. § 1983.” Id.

c. The common-law tradition of the availability of all remedies: Fran-kin v. Gwinnett County

Eleven years after Newport, the Supreme Court in Franklin addressed “whether the implied right of action under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1988 (Title IX) ... supports a claim for monetary damages.” Franklin, 503 U.S. at 62-63, 112 S.Ct. 1028. In Franklin, the petitioner, Christine Franklin, was subjected to continual sexual harassment by a high school teacher for approximately two years. Id. at 63, 112 S.Ct. 1028. After investigating complaints of sexual harassment by Franklin and other female students, the school district terminated the teacher but took no further action against him and closed the investigation. Id. Franklin, unsatisfied with this purported “resolution” of her complaint, filed an action under Title IX in federal district court seeking monetary damages. Id. at 64, 112 S.Ct. 1028. The district court, however, dismissed Franklin’s complaint on the ground Title IX did not authorize an award of damages, and the Eleventh Circuit Court of Appeals affirmed. Id.

Reversing, the Supreme Court traced a long-standing rule whose anchor was first cast in Marbury v. Madison: where there is a right there is a remedy. Id. at 66, 112 S.Ct. 1028 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803)). Specifically, Chief Justice Marshall animadverted that remedies to right a wrong are critical to the survival of the republican form of government:

[O]ur Government “has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” This principle originated in the English common law, and Blackstone described it as “a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” 3 W. Blackstone, Commentaries 23 (1783). See also Ashby v. White, 1 Salk. 19, 21, 87 Eng. Rep. 808, 816 (Q.B.1702) (“If a statute gives a right, the common law will give a remedy to maintain that right ...”).

Id. at 66-67, 112 S.Ct. 1028 (quoting Marbury, 5 U.S. (1 Cranch), at 163).

The Court also observed that it has repeatedly held that “ ‘where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’ ” Id. at 66, 112 S.Ct. 1028 (quoting Bell v. Hood., 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). In Franklin, the Title IX plaintiffs wrong could not be righted in the absence of monetary damages. Id. at 75-75, 112 S.Ct. 1028. The traditional presumption of the availability of all appropriate relief was presumptively known to Congress at the time it enacted Title IX, and, if Congress intended to limit the applicability of the presumption, such intent must be evaluated at the time of Title IX’s passage. Id. at 71, 112 S.Ct. 1028 (citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 358, 378, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982)). “In the years before and after Congress enacted this statute, the Court ‘followed] a common-law tradition [and] regarded the denial of a remedy as the exception rather than the rule.’” Id. (citing Curran, 456 U.S. at 375, 102 S.Ct. 1825) (alteration provided by Franklin Court).

The Court specifically examined amendments to Title IX, passed in 1986 and in 1987. See id. at 72-73, 112 S.Ct. 1028. Because these amendments did not alter, and, by implication ratified, the Cannon Court’s recognition of an implied cause of action under Title IX, the Court determined that Congress legislated with full cognizance of the traditional presumption of the availability of all remedies in the face of a recognized legal right and did not seek to alter this presumption. See id. The Court reasoned as follows:

In the years after the announcement of Cannon ... a more traditional method of statutory analysis is possible, because Congress was legislating with full cognizance of that decision. Our reading of the two amendments to Title IX enacted after Cannon leads us to conclude that Congress did not intend to limit the remedies available in a suit brought under Title IX. In the Rehabilitation Act Amendments of 1986, 100 Stat. 1845, 42 U.S.C. § 2000d-7, Congress abrogated the States’ Eleventh Amendment immunity under Title IX, Title VI, § 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. This statute cannot be read except as a validation of Cannon’s holding. A subsection of the 1986 law provides that in a suit against a State, “remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.” 42 U.S.C. § 2000d-7(a)(2). While it is true that this saving clause says nothing about the nature of those other available remedies, ef. Milwaukee v. Illinois, 451 U.S. 304, 329, n. 22, 101 S.Ct. 1784, 1798-1799, n. 22, 68 L.Ed.2d 114 (1981), absent any contrary indication in the text or history of the statute, we presume Congress enacted this statute with the prevailing traditional rule in mind.

In addition to the Rehabilitation Act Amendments of 1986, Congress also enacted the Civil Rights Restoration Act of 1987, Pub.L. 100-259, 102 Stat. 28. Without in any way altering the existing rights of action and the corresponding remedies permissible under Title IX, Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act, Congress broadened the coverage of these antidiscrimination provisions in this legislation. In seeking to correct what it considered to be an unacceptable decision on our part in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), Congress made no effort to restrict the right of action recognized in Cannon and ratified in the 1986 Act or to alter the traditional presumption in favor of any appropriate relief for violation of a federal right. We cannot say, therefore, that Congress has limited the remedies available to a complainant in a suit brought under Title IX.

Id. at 72,112 S.Ct. 1028.

d. Reconciling Franklin with Newport

Thus, critical to both the Netvport and the Franklin analyses was the assumption that Congress legislates in light of common-law tradition. In Newport, the tradition in question was municipality immunity from punitive damages. See Newport, 453 U.S. at 268-64, 101 S.Ct. 2748. In Franklin, the tradition in question was the presumptive validity of all available remedies. See Franklin, 503 U.S. at 66, 112 S.Ct. 1028. Since Franklin, courts have struggled with reconciling these two traditions. Citing to Newport and its general proposition that punitive damages are not recoverable against a municipality absent express statutory authority, some district courts have found that punitive damages are not allowed in a Title IX action. See London v. Oswego Unit Sch. Dist. No. 308, 143 F.Supp.2d 1011, 1014 (N.D.Ill.2001); Flores v. Saulpaugh, 115 F.Supp.2d 319, 320 n. 1 (N.D.N.Y.2000); Booker v. Boston, 2000 WL 1868180 (D.Mass. Dec.12, 2000); Morlock v. West Cen. Educ. Dist., 46 F.Supp.2d 892, 924 (D.Minn.1999); Crawford v. School Dist. of Philadelphia, 1998 WL 288288 (E.D.Pa. June 3, 1998); Doe v. Londonderry Sch. Dist., 970 F.Supp. 64, 76 (D.N.H.1997). Relying on Franklin, other district courts have held that the presumption of the availability of all remedies in a Title IX action includes the recovery of punitive damages. See Mercer v. Duke University, 2001 WL 1729629, at *15 (M.D.N.C. Mar. 12, 2001); Henkle v. Gregory, 150 F.Supp.2d 1067, 1077-78 (D.Nev. 2001); Canty v. Old Rochester Reg. Sch. Dist., 54 F.Supp.2d 66, 70 (D.Mass.1999); Doe v. Oyster River Coop. Sch. District, 992 F.Supp. 467, 483 (D.N.H.1997).

This court, however, sees no inconsistency between the two opinions. Generally, punitive damages are not recoverable against municipalities or municipal subdivisions absent express statutory authority, unless considerations of public policy would dictate a contrary result. See Newport, 453 U.S. at 260 n. 21, 101 S.Ct. 2748 (holding punitive damages are unavailable against a municipality under § 1983). On its face, Title IX provides no statutory authority for the recovery of a punitive damages award against a municipality. See 20 U.S.C. § 1681 et seq. The Neivport tradition of municipal immunity dates back at least to 1871, Newport, 453 U.S. at 258, 101 S.Ct. 2748; thus, Title IX was enacted within the context of that tradition. See Franklin, 503 U.S. at 70, 112 S.Ct. 1028. At the same time, Franklin expressly held that Title IX supports an award of all available remedies, which the Eighth Circuit has determined includes punitive damages. Compare id. (authorizing any available remedies under Title IX), with Gorman, 257 F.3d at 746 (interpreting Franklin's full spectrum of remedies to include punitive damages). Neither the text of Title IX nor its legislative history reveals any indicia of congressional intent to abandon either tradition. While Eighth Circuit caselaw has interpreted “all available remedies” to include punitive damages, Gorman, 257 F.3d at 746, punitive damages against a municipality were not “available,” in terms of the common-law tradition, at the time either Title IX or its archetype, Title VI, was passed, in 1972 and in 1964, respectively. Cf. Newport, 453 U.S. at 263, 101 S.Ct. 2748 (stating common-law tradition immunizing municipalities from punitive damages was well-established by 1871). Nevertheless, this court would be remiss of its responsibilities if it ceased its inquiry at this point without exploring the second step of the Newport test, which examines whether public policy dictates a divergence from the common-law tradition of municipal immunity from punitive damages.

e. District courts’ treatment of Title IX, municipal entities, and punitive damages: An overview

The district courts that have relied on Newport in rejecting the availability of punitive damages awards under Title IX make much of the cost of such awards to innocent taxpayers and note that the rationale underlying Newport regarding the common-law rule immunizing municipalities from punitive damages is equally applicable to claims against municipal entities under Title IX. For instance, the United States District Court for the District of New Hampshire held that Title IX did not support an award of punitive damages against a municipality because “Title IX contains no statutory authority for awarding a punitive damage award against a municipality.” Doe v. Londonderry Sch. Dist., 970 F.Supp. 64, 76 (D.N.H.1997) (citing 20 U.S.C.A. § 1681 (West 1990)). Furthermore, the district court found support for its conclusion in the text of Title VII, which it determined was often utilized as a teaching tool in interpreting Title IX. Id. Under Title VII, “ ‘[a] complaining party may recover punitive damages ... against a respondent (other than a government, governmental agency or political subdivision)....”’ Id. (quoting 42 U.S.C.A. § 1981a(b)(l) (West 1994)).

This court will not adopt the Londonder-ry court's reasoning because, in this court’s opinion, the Londonderry court’s failure to reach the second step of the Newport inquiry is in error. While the Newport Court indeed held that punitive damages are not generally recoverable against municipalities absent statutory authority, the Court indicated that public policy may compel a different result. See Newport, 453 U.S. at 266, 101 S.Ct. 2748. The New Hampshire district court, however, neglected to address any considerations of public policy.

Moreover, the Londonderry court’s analogy to Title VII’s punitive damages provision is inapposite. Franklin and Newport both command that statutes are to be interpreted at the time of their enactment. See Franklin, 503 U.S. at 71, 112 S.Ct. 1028; Newport, 453 U.S. at 259-60, 101 S.Ct. 2748. The Title VII provision regarding governmental immunity from punitive damages cited by the Lon-donderry court was passed in 1991 and does not on its face apply to Title IX. Thus, the Title VII analogy is inapt, and there is no logical basis upon which to retroactively apply a 1991 Title VII amendment to Title IX. Cf. Gorman, 257 F.3d at 747 (stating 1991 amendment did not affect status quo that punitive damages are available under sections 504 and the ADA).

“Title IX was patterned after Title VI of the Civil Rights Act of 1964,” and the statutes contain virtually identical language. Cannon, 441 U.S. at 694, 99 S.Ct. 1946.

Except for the substitution of the word “sex” in Title IX to replace the words “race, color, or national origin” in Title VI, the two statutes use identical language to describe the benefited class. Both statutes provide the same administrative mechanism for terminating federal financial support for institutions engaged in prohibited discrimination. Neither statute expressly mentions a private remedy for the person excluded from participation in a federally funded program. The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been ■ during the preceding eight years.

Id. at 694-96, 99 S.Ct. 1946 (footnotes omitted). Thus, because of this close relationship between the two acts, amendments to Title VI would be highly relevant to this court’s interpretation of Title IX, but amendments to Title VII have little bearing on this court’s interpretation of Title IX. Cf. Lipsett v. University of Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988) (limiting application of Title VII principles to only those Title IX cases involving employment discrimination). While it is true that the 1991 amendments are difficult to reconcile with the presumptive availability of punitive damages, “Cannon and Franklin compel the conclusion that punitive damages were available as a remedy to a private cause of action under Title VI in 1964, and it is that assumption which provides the baseline against which subsequent amendments must be gauged.” Gorman, 257 F.3d at 747.

In Gorman, the Eighth Circuit held that the 1986, 1987, and 1991 amendments to the Rehabilitation Act and the Americans With Disabilities Act (“ADA”) did not disturb the common-law tradition that the full panoply of remedies, including punitive damages, is available under those acts. See id. at 746^17. That is so because “[a]s in Franklin, we must ... conclude that Congress assumed the availability of all remedies, including punitive damages, under Title VI [the act on which Title IX, Section 504, and the ADA were modeled]. Congress has not since amended Title VI to limit any cause of action implied thereunder, nor the remedies that might accompany such a cause of action.... ” Id. at 747. Therefore, notwithstanding the 1991 amendments to Title VII, the Eighth Circuit concluded that “logic dictates, the full panoply of remedies available under Title VI, including punitive damages, must be available under sections 504 and 202.” Id. For the same reasons that the Eighth Circuit determined that the 1991 amendments to the Civil Rights Act did not disturb the availability of punitive damages under section 504, which was also patterned on Title VI, this court concludes that the 1991 amendment which provides for municipal immunity from punitive damages does not affect this court’s interpretation of municipal immunity under Title IX.

Approximately two months after the Londonderry decision in 1997, another United States district court in the District of New Hampshire addressed whether Title IX supports an award of punitive damages against a municipal entity in Doe v. Oyster River Cooperative School District, 992 F.Supp. 467 (D.N.H.1997). The Oyster River court concluded, as did the Lon-donderry court, that “Congress was sensitive to the financial difficulties of grant recipients and ... it demonstrated no intention of disturbing the common law rule that municipalities are entitled to immunity from punitive damages.” Id. at 483. After examining portions of the legislative history of Title VI, the court determined that the objectives of Title IX could be fulfilled without imposing the harsh sanction of punitive damages against a governmental entity. See id. at 482-83. The court reasoned that, instead of punitive damages, Congress provided a “punitive-like sanction of terminating federal funding.” Id. at 483.

At the same time, the Oyster River court curiously dropped a footnote indicating that certain circumstances might warrant an award of punitive damages against a municipality:

[I]n the rare case in which a local public school district has demonstrated complete indifference to the requirements of Title IX and has committed ongoing egregious violations with no sign of relenting, a federal court might determine, in its discretion, that a punitive damages remedy for a private party is the best, or only, means of forcing the school district into compliance. In such a case, the public policies underlying municipal immunity might give way in favor of the federal government’s overriding interest in preventing its funds from being spent on discriminatory practices. The circumstances alleged in the present action against defendants are such that the court need not address the issue.

Id. at 483 n. 17.

This dicta undermines the Oyster River court’s preceding reasoning. First, in order to recover punitive damages in any case, a plaintiff must establish a high threshold requirement of malicious conduct. See, e.g., Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir.2002) (“ ‘[F]or the issue of punitive damages to reach the jury in a section 1981 case, the plaintiff must come forward with substantial evidence that the employer acted with actual malice or reckless indifference to his federally protected rights.’ ”) (citing Kolstad v. American Dental Ass’n, 527 U.S. 526, 536-37, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999)) (page references not yet available); Gorman, 257 F.3d at 749 (“The defendant’s conduct must be shown to have been ‘motivated by evil motive or intent, or ... reckless or callous indifference to the federally protected rights of others.’ ”) (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)) (alteration provided by Eighth Circuit) (citing Kolstad, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494, which discussed punitive damages scheme under 42 U.S.C. § 1981a); Foster v. Time Warner Entertainment Co., 250 F.3d 1189 (8th Cir. 2001) (“Punitive damages are appropriate [in an ADA retaliation action] if an employer engaged in intentional discrimination with ‘malice or reckless indifference to the [plaintiffs] federally protected rights.’ ”) (quoting Kolstad, 527 U.S. at 536-37, 119 S.Ct. 2118); Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091 (10th Cir.2001) (“ ‘In the Tenth Circuit, the standard for punitive damages for discrimination in violation of federal civil rights is that the discrimination must have been malicious, willful, and in gross disregard of [plaintiffs] rights.’ ”) (quoting Jackson v. Pool Mortgag