Riddick v. Portsmouth School Bd

Panel rehearing granted -- only for purpose

of designating opinion as published --

by order filed 12/15/00.

Filed: December 15, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 99-1318

(CA-97-435-2, CA-97-1207-2)

Kathryn Riddick, etc., et al.,

Plaintiffs - Appellants,

versus

School Board of the City of Portsmouth,

Defendant - Appellee.

O R D E R

The court amends its opinion filed September 21, 2000, as

follows:

On the cover sheet, section 1 -- the status is changed from

UNPUBLISHED to PUBLISHED.

On page 2, section 4 -- the status line is changed to read

“Affirmed by published opinion. Judge King wrote the majority

opinion in which Judge Williams joined. Judge Luttig wrote a

dissenting opinion.”

- 2 -

On page 2 -- the section referring to use of unpublished

opinions as precedent is deleted.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KATHRYN RIDDICK, an infant, who

sues by her mother and next friend,

Nettie Riddick; KELLEE CHAMBERS;

TRACEE BYNUM; LAVINA FALZONE, an

infant, who sues by her mother and

next friend, Vina Falzone; NETTIE

RIDDICK; VINA FALZONE; JONELLE

WHITLEY; LATASHA WILSON,

Plaintiffs-Appellants,

v.

SCHOOL BOARD OF THE CITY OF

PORTSMOUTH,

Defendant-Appellee,

and

No. 99-1318

RICHARD D. TRUMBLE, individually

and in his official capacity as

Superintendent of the Portsmouth

Public Schools; LINDELL WALLACE,

individually and in his official

capacity as former Principal at

Wilson High School, DAVID

WILLETT, individually and in his

official capacity as former Athletic

Director at Wilson High School;

JOHN W. CRUTE, individually and in

his official capacity as a former

Teacher and Athletic Coach at

Wilson High School, Portsmouth,

Virginia,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca Beach Smith, District Judge.

(CA-97-435-2, CA-97-1207-2)

Argued: May 5, 2000

Decided: September 21, 2000

Before LUTTIG, WILLIAMS, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge King wrote the majority

opinion, in which Judge Williams joined. Judge Luttig wrote a

dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Andrew Michael Sacks, SACKS & SACKS, Norfolk,

Virginia, for Appellants. Jeff Wayne Rosen, ADLER, ROSEN &

PETERS, P.C., Virginia Beach, Virginia, for Appellee. ON BRIEF:

Lisa Ehrich, ADLER, ROSEN & PETERS, P.C., Virginia Beach, Vir-

ginia, for Appellee.

_________________________________________________________________

_________________________________________________________________

OPINION

KING, Circuit Judge:

In this appeal, we review an order of the district court, entered on

January 26, 1999, granting summary judgment in favor of the School

Board of the City of Portsmouth ("Board") in this action brought pur-

2

suant to 42 U.S.C. § 1983. For the reasons explained below, we

affirm the district court's judgment for the Board.

I.

Kathryn Riddick (an infant who sues by her mother, Nettie Ridd-

ick), Kellee Chambers, Tracee Bynum, Lavina Falzone (an infant who

sues by her mother, Vina Falzone), Nettie Riddick, Vina Falzone,

Jonelle Whitley, and Latasha Wilson (collectively the "Riddick plain-

tiffs"), filed civil actions in the Eastern District of Virginia against

multiple defendants, including Wilson High School coach John Crute,

the Board, Superintendent Richard D. Trumble, Principal Lindell

Wallace, and Athletic Director David Willett.

The complaints alleged, inter alia, that the Board was subject to

liability under 42 U.S.C. § 1983 for Crute's actions taken in the

course of his employ as track coach. Specifically, the complaints

asserted that the Board knew of Crute's propensity to behave inappro-

priately towards female students and yet allowed Crute to continue his

inappropriate behavior by failing to take immediate and decisive

action to end such conduct, resulting in the violation of the Riddick

plaintiffs' constitutional rights. The Board moved for summary judg-

ment, contending that it could not be held liable for Crute's actions.

From the bench, the district court granted the Board's motion for

summary judgment, subsequently memorializing the ruling in its Jan-

uary 26, 1999 order. The Riddick plaintiffs now appeal.1 1

II.

In July 1995, school administrators at Wilson High School in

Portsmouth, Virginia, discovered a hidden video camera in a storage

_________________________________________________________________

1 The Riddick plaintiffs did not contest the motion for summary judg-

ment with respect to the claims against defendants Trumble, Wallace,

and Willet, and the district court entered judgment in their favor.

After the district court granted summary judgment in favor of the

Board, the Riddick plaintiffs proceeded to trial on February 16, 1999,

against Coach Crute individually. Thereafter, on February 24, 1999, the

Riddick plaintiffs filed a notice of appeal seeking review of the district

court's January 26, 1999 order.

3

room adjoining the women's locker room. An investigation revealed

that John Crute, a teacher and women's track coach, had been using

the camera, beginning in late 1991 or early 1992, to secretly video-

tape members of the track team in various stages of undress (the

"1995 incident").

The Riddick plaintiffs, track team members videotaped by the hid-

den camera, filed suit against the Board pursuant to section 1983,

alleging a deprivation of their rights under color of state law.2 2 In sup-

port of this claim, Riddick relied on a prior incident also involving

Crute, in which the parents of Lakesha Coletrain, a former member

of the women's track team, complained that Crute inappropriately

videotaped their daughter posing in her track uniform (the "1989 inci-

dent"). After a practice session in early 1989, Crute videotaped Ms.

Coletrain in her track uniform for a portfolio Crute was purportedly

preparing for each team member. During the videotaping session,

Coach Crute instructed Ms. Coletrain to stretch her legs on the floor

and over a hurdle. He told her that if the stretching hurt, she could

grunt because it would not be heard on the videotape since he would

talk over it. In total, Crute videotaped Ms. Coletrain modeling eight

different track uniforms. Each time Ms. Coletrain changed into a dif-

ferent uniform, she went into a classroom alone and closed the door

behind her. When Ms. Coletrain donned a uniform that was cut partic-

ularly high in the pubic area, Crute asked her to remove her under-

pants because, he said, the uniform did not look good with the

underpants showing.

_________________________________________________________________

2 Section 1983 gives injured plaintiffs a cause of action when they have

been deprived of federal rights under color of state law, providing:

Every person who, under color of any statute, ordinance, regula-

tion, custom, or usage, of any State or Territory or the District

of Columbia, subjects or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper pro-

ceeding for redress . . . .

42 U.S.C. § 1983.

4

When Ms. Coletrain's father learned of the videotaping session, he

obtained a copy of the tape from Coach Crute. In a separate state

court proceeding, Ms. Coletrain's father testified that the videotape

showed Ms. Coletrain stretching and modeling different uniforms

while Crute, who was manually operating the camera, "zoom[ed] in

on her crotch, [and] zoomed in on her rear." J.A. 472. Additionally,

Ms. Coletrain's father indicated that Crute was doing "a lot [of]

moaning and groaning." J.A. 474.

The Coletrains immediately voiced their concerns to then-Principal

Judith Kirman, who referred the matter to then-Superintendent Dr.

Thomas Mack Cherry. In turn, Dr. Cherry instructed Principal Kirman

to conduct an investigation to ascertain "whether or not we could cor-

roborate that story with any other kind of behavior that would sub-

stantiate that there was any kind of improper action on anyone's part."

J.A. 665. As part of her investigation, Principal Kirman instructed the

then-Athletic Director, Bruce Phelps, to obtain copies of similar vid-

eotapes made by Coach Crute of each team member. Kirman pro-

ceeded to view these tapes during separate interviews with the team

members and their parents or guardians. During the course of the

investigation, another parent, Nettie Stephenson, expressed her dis-

comfort with Coach Crute's videotaping. Additionally, Ms. Stephen-

son, whose daughter was also a member of the track team, indicated

to Principal Kirman that she felt it inappropriate for Coach Crute to

drive girls home after track practice.

Although the Coletrains and Ms. Stephenson considered Coach

Crute's actions to be inappropriate, certain other parents did not. In

late January 1989, Dr. Cherry and Principal Kirman completed the

investigation and concluded that Crute's behavior was not objection-

able. Nevertheless, because of the potential appearance of impropri-

ety, Kirman directed Coach Crute to: (1) confine his videotaping of

team members to track meets; (2) refrain from driving team members

home after practices; and (3) take a female chaperone to all track

meets outside the school district. The 1989 incident was the first com-

plaint against Crute, and in accordance with the Board's disciplinary

policy, no record of the incident was placed in his personnel file.

III.

We review an award of summary judgment de novo, viewing the

facts and the inferences to be drawn therefrom in the light most favor-

5

able to the nonmovant. Myers v. Finkle, 950 F.2d 165, 167 (4th Cir.

1991). Summary judgment is appropriate only "if the pleadings, depo-

sitions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(c).

IV.

A.

The Riddick plaintiffs assert that the Board's decision to retain

Crute as a teacher and track coach after the 1989 incident, and its

related failure to implement sufficient precautionary measures to pre-

vent future improper conduct by him, resulted in the deprivation of

their constitutional rights in connection with the 1995 incident. Based

on the 1989 incident, the Riddick plaintiffs assert that the Board knew

of Crute's propensity to behave inappropriately towards female stu-

dents and yet allowed Crute to continue his inappropriate behavior by

failing to take immediate and decisive action to end such conduct.

Specifically, they contend that "final policymaking authority" in the

area of teacher discipline was delegated by the Board to the superin-

tendent, the school principals, and other school officials. Accordingly,

the Riddick plaintiffs maintain that: (1) Superintendent Cherry, Prin-

cipal Kirman, Director Hinton, and Athletic Director Phelps are

municipal officials whose acts may fairly be said to represent official

municipal policy; and (2) these officials established, through their

inaction, an official municipal policy "of being deliberately indiffer-

ent to [Crute's] perverse sexual harassment, invasion of privacy

rights, and other sexually abusive conduct towards female students in

the school." Br. of Appellants at 22.

B.

In order to properly review and consider this appeal, it is necessary

to understand the applicable legal authorities governing such a case.

First, it is well established that a municipality cannot be held liable

simply for employing a tortfeasor. Monell v. New York City Dept. of

Social Services, 436 U.S. 658, 691 (1978).3

3 On the other hand, a

_________________________________________________________________

3 In Monell, the Court recognized that school boards and municipalities

are indistinguishable for purposes of § 1983. Id. at 696.

6

municipality may be subject to liability under section 1983 if the

alleged injury was caused by an identifiable municipal policy or cus-

tom. Board of the County Comm'rs of Bryan County v. Brown, 520

U.S. 397, 403 (1997). A government policy or custom need not have

received formal approval through the municipality's official decision-

making channels to subject the municipality to liability. Rather, when

an alleged constitutional deprivation is caused by the official actions

of those individuals "whose edicts or acts may fairly be said to repre-

sent official policy," the government as an entity is responsible under

section 1983. Monell, 436 U.S. at 694. Because section 1983 was not

designed to impose municipal liability under the doctrine of

respondeat superior, the "official policy" requirement was "intended

to distinguish acts of the municipality from acts of employees of the

municipality, and thereby make clear that municipal liability is lim-

ited to action for which the municipality is actually responsible."

Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).

Of course, not every decision by every municipal official will sub-

ject a municipality to section 1983 liability. Rather, "[m]unicipal lia-

bility attaches only where the decisionmaker possesses final authority

to establish municipal policy with respect to the action ordered." Pem-

baur, 475 U.S. at 481 (citation omitted). To qualify as a "final policy-

making official," a municipal official must have the responsibility and

authority to implement final municipal policy with respect to a partic-

ular course of action. Id. at 482-83 (emphasis added); see also Spell

v. McDaniel, 824 F.2d 1380, 1386 (4th Cir. 1987) ("`[P]olicymaking

authority' implies authority to set and implement general goals and

programs of municipal government, as opposed to discretionary

authority in purely operational aspects of government."). Therefore,

to impose municipal liability on the Board, the Riddick plaintiffs must

identify municipal officials with "final policymaking authority" to

implement the alleged policy of "acquiescence" with respect to

Crute's conduct.

The question of who possesses final policymaking authority is one

of state law. Pembaur, 475 U.S. at 483. In order to determine which

officials possess final policymaking authority for the allegedly uncon-

stitutional action in question, we must look to"the relevant legal

materials, including state and local positive law, as well as `custom

or usage having the force of law.'" Jett v. Dallas Independent School

7

District, 491 U.S. 701, 737 (1989) (quoting City of St. Louis v. Pra-

protnik, 485 U.S. 112, 124 n.1 (1988)). In that regard, the Constitu-

tion of Virginia vests control of the public school system in the local

school boards. Va. Const. art. VIII, § 7. This control includes the

authority to supervise personnel. School Board v. Parham, 243 S.E.2d

468, 472 (1978). Pursuant to Va. Code Ann. § 22.1-313(A) (Michie

1999), the Board retains exclusive final authority over matters con-

cerning the discipline of school employees. That section provides:

The school board shall retain its exclusive final authority

over matters concerning employment and supervision of its

personnel, including dismissals, suspensions and placing on

probation.

Va. Code Ann. § 22.1-313(A). Although the Riddick plaintiffs cor-

rectly assert that final policymaking authority may be delegated, see

Pembaur, 475 U.S. at 483, there was no showing that the Board dele-

gated any such authority in this case. While the superintendent and

other school officials have limited authority to investigate complaints

against teachers and to implement disciplinary policy, all final person-

nel decisions in the City of Portsmouth school system -- including

decisions to terminate employees -- are subject to final review by the

Board. When a municipal official's discretionary action "is subject to

review by the municipality's authorized policymakers, they have

retained the authority to measure the official's conduct for confor-

mance with their policies." Praprotnik, 485 U.S. at 127. Because Dr.

Cherry, Principal Kirman, Director Hinton, and Athletic Director

Phelps did not possess "final policymaking authority," their actions

could not constitute official municipal policy. As Judge Smith aptly

recognized in her oral summary ruling:

[T]he key is the final policy making. The key here is final.

It is not just policy making. The school board can say to the

superintendent, develop a policy. But that policy still then

has to be approved by the school board. In other words, it

is not just who can make policy. . . . [I]t is ultimately in the

scheme of things who has the final say-so.

J.A. 1598 (emphasis added). Because the Board retained the final

"say-so" on personnel matters, Judge Smith correctly concluded that

8

the Board cannot be subjected to municipal liability based on the

decisions of the superintendent and principal.

C.

Even if the superintendent and other school officials had possessed

final policymaking authority, the Riddick plaintiffs would have

another insurmountable hurdle to overcome. A municipality is not

subject to section 1983 liability simply because a claimant is able to

identify conduct attributable to the municipality. Rather, "[t]he plain-

tiff must also demonstrate that, through its deliberate conduct, the

municipality was the `moving force' behind the injury alleged."

Bryan County, 520 U.S. at 404. Accordingly, to impose section 1983

liability on a municipality, a claimant must first show that "a munici-

pal decision reflects deliberate indifference to the risk that a violation

of a particular constitutional or statutory right will follow the deci-

sion." Id. at 411. If a section 1983 claimant can demonstrate the requi-

site degree of culpability, she must then show "a direct causal link

between the municipal action and the deprivation of federal rights."

Id. at 404.

In this regard, the Riddick plaintiffs argue that the Board -- vis-a-

vis the individual administrators -- was "deliberately indifferent" to

the risk that Coach Crute would, in 1995, violate the rights of the

female track team members in the manner alleged. Specifically, the

Riddick plaintiffs assert that the Board's actions following the 1989

incident -- exonerating Crute of any wrongdoing, retaining him as a

teacher, and failing to formally discipline him -- caused a violation

of their constitutional rights.

An examination of the authorities relied upon by the plaintiffs,

however, supports the district court's conclusion that the Board was

entitled to summary judgment. In Jones v. Wellham, 104 F.3d 620

(4th Cir. 1997), the plaintiff sought to impose section 1983 liability

upon Maryland's Anne Arundel County after she was allegedly raped

in 1990 by an on-duty police officer. The officer previously had been

disciplined by the County in 1979 for an alleged sexual assault.

Although a criminal investigation was launched at that time, the

State's Attorney declined to file rape charges after concluding that the

evidence regarding the nonconsensual nature of the incident was con-

9

flicting and was insufficient to obtain a conviction. Nevertheless, as

a result of the police department's internal investigation, the officer

was suspended without pay, transferred to desk duty, and required to

attend counseling. Alleging that the County's failure to terminate the

officer in 1979 constituted deliberate indifference to her civil rights,

the plaintiff asserted that the County was subject to liability under

section 1983. We properly rejected her argument, concluding that the

1979 decision to discipline the officer, rather than terminate him, did

not constitute deliberate indifference. Judge Phillips observed:

With the benefit of hindsight, [the decisions of the County]

were clearly unfortunate, might perhaps be thought impru-

dent, or even be found legally negligent, but that does not

suffice; only decisions taken with deliberate indifference to

the potential consequences of known risks suffices to

impose municipal liability on the basis that such decisions

constituted official County "policy."

104 F.3d at 627. We concluded that the causal connection "between

the decision to keep [the officer] on in 1979 and the constitutional

violation ten years later is too remote to impose liability upon the

County under relevant § 1983 principles." Id.

Second, the Riddick plaintiffs direct our attention to the Fifth Cir-

cuit's decision in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745

(5th Cir. 1993), where a female student and her parents brought a sec-

tion 1983 action against the school district, alleging that injuries

received by the student when she was sexually molested by a teacher

were attributable to the school district. The plaintiffs' municipality

liability theory was premised on the school district's failure to termi-

nate the teacher's employment when he was accused of molesting

another student two years earlier. The lack of evidence corroborating

the earlier student's claim led the school district to simply issue a

written reprimand and to transfer the teacher to another school. The

court declined to conclude that the school board acted with deliberate

indifference in failing to terminate the teacher's employment, writing:

We also agree . . . that the Board's choice to transfer [the

teacher] rather than impose a more severe sanction was not

only negligent but also inconsistent with the district's han-

10

dling of other cases of suspected sexual abuse. But these

facts, by themselves, are not sufficient to establish that the

Board was deliberately indifferent to the welfare of students

in making its decision.

996 F.2d at 762 (emphasis added).

Third, the Riddick plaintiffs rely on another Fifth Circuit decision,

Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211 (5th Cir. 1998), where

a third-grade teacher was discovered to have sexually molested

numerous male students from 1983 to 1987. The teacher was subse-

quently convicted of one count of aggravated sexual assault and two

counts of indecency with a child. Following the convictions, plaintiffs

sought to impose section 1983 liability on the school district, assert-

ing that school officials knew or should have known of the sexual

abuse and that, despite such knowledge, they acted with deliberate

indifference to the plaintiffs' constitutional rights. Specifically, the

plaintiffs relied on a 1986 complaint against the teacher, in which the

mother of a male student complained to the principal that the teacher

had fondled her son. The principal investigated the allegation, con-

cluded that it was not true, and the school district therefore took no

disciplinary action against the teacher. The section 1983 plaintiffs

contended that failure to reprimand the teacher formally, or transfer

him, was indicative of the school district's "deliberate indifference."

The Court of Appeals rejected this contention, writing:

[T]he fact that [the principal] misread the [1986] situation

and made a tragic error in judgment does not create a genu-

ine issue of material fact as to whether she acted with delib-

erate indifference toward [the students'] constitutional

rights.

153 F.3d at 219.

The Riddick plaintiffs' reliance on these decisions does little to

advance their claim, since none of them found "deliberate indiffer-

ence" on facts similar to this case. Nevertheless, they attempt to dis-

tinguish Jones, Gonzales, and Doe by asserting that the prior

misconduct in these cases was more dissimilar and remote in time

than the 1989 complaint in this case. We are unpersuaded. When

11

Crute was investigated in 1989 for openly filming fully-clothed

female students, it was not plainly obvious that he would videotape

other students with a hidden camera nearly three years later. As Judge

Smith observed from the bench, "there [was] no indication that any-

one could predict any causal link or moving force behind the disci-

plinary action in 1989 to the egregious conduct that is alleged to have

started occurring some two years later." J.A. 1637. Thus, the evidence

simply does not support a finding that the school officials investigat-

ing the 1989 allegation ignored "the potential consequences of known

risks." Jones, 104 F.3d at 627. Put simply, the causal connection

between the 1989 incident and the alleged constitutional deprivation

is simply too attenuated to impose municipal liability on the Board.

The Riddick plaintiffs also argue that Jones, Gonzales, and Doe are

distinguishable because the municipal employees in those cases were

actually disciplined as a result of their prior transgressions, while

Coach Crute was exonerated from any alleged 1989 wrongdoing.

Because the Riddick plaintiffs disagree with Dr. Cherry and Principal

Kirman's conclusion that Crute's consensual videotaping of fully-

clothed students in 1989 did not warrant formal discipline, they argue

that the Board acted with "deliberate indifference." This argument is

misguided. Admittedly, in light of his subsequent reprehensible

behavior, the failure to terminate Crute in 1989 was unfortunate and

perhaps ill-advised. However, short-sightedness does not suffice to

establish "deliberate indifference." As the district judge insightfully

recognized in her oral ruling:

In retrospect, everybody may wish they had done something

more extreme. But that's hindsight. At the time they took

the action based upon the investigation that they made, and

they didn't fail to find something that was in existence at the

time, and I cannot find as a matter of law on these undis-

puted facts that this single lawful disciplinary decision back

in 1989 was the moving force that then caused these alleg-

edly unconstitutional acts to occur or that there is any show-

ing of deliberate indifference on the part of the

superintendent, the principal, or the athletic director, even if

somehow you could say they were final policy-making

authorities.

12

J.A. 1638-39.

Accordingly, even if Dr. Cherry, Principal Kirman, or some other

school administrator had been a "final policymaking official" whose

actions were attributable to the Board, the Riddick plaintiffs have also

failed to demonstrate "deliberate indifference." We must conclude

that the evidence, viewed in the light most favorable to the Riddick

plaintiffs, is simply insufficient to impose liability on the Board under

section 1983.

V.

For the foregoing reasons, the judgment of the district court is

affirmed.

AFFIRMED

LUTTIG, Circuit Judge, dissenting:

Coach Crute was charged with responsibility over the girls' track

team at Wilson High School in Portsmouth, Virginia. Crute video-

taped a female student after hours in a remote and isolated part of the

campus, instructed the student to remove her underpants for the cam-

era, and zoomed in on her crotch, moaning and groaning during the

encounter. In response to Crute's actions, the Superintendent, Princi-

pal, and Director of Secondary Education took no disciplinary action

whatsoever, characterizing Crute's behavior as "not objectionable."

Unsurprisingly, in the events that give rise to this lawsuit, Crute was

thereafter found videotaping, with a hidden camera, female students

as they undressed and dressed in the girls' locker room -- conduct for

which the plaintiffs now seek to hold the School Board liable under

42 U.S.C. § 1983.

The majority holds today that no liability under section 1983 lies

against the School Board for Crute's conduct because -- and merely

because -- the School Board formally retains review authority over

all individual disciplinary decisions pursuant to state statute. Because

the majority's holding rests on an obviously mistaken understanding

of the scope of municipal liability under section 1983, and because a

13

reasonable jury could readily conclude both that the School Board has

effectively delegated final policymaking authority over personnel

disciplinary decisions to the individual defendants and that those indi-

vidual officials were deliberately indifferent to the constitutional harm

that ultimately befell the plaintiffs, I dissent from the majority's affir-

mance of summary judgment for the defendants.

I would unhesitatingly hold, on the facts alleged, that the plaintiffs

are entitled to a jury trial on their claim against the School Board that

their daughters' constitutional rights were violated by Crute's con-

duct. Indeed, were it my role to do so, I would hold as a matter of law

that the officials in question were deliberately indifferent as a result

of their inexcusable failure to act in the face of warning signs that

would have been obvious to anyone responsible enough to be

entrusted with the education and safety of children, and that I suspect

were in truth obvious to the individual defendants in this case.

I.

The majority's error, as I allude to above, is in its apparent failure

to recognize that subordinate officials can be final policymakers, even

absent a formal delegation of final decisionmaking authority from the

principal: That is, the majority mistakenly concludes that a statutorily

designated policymaker who retains but pro forma final review

authority is, and can be, the only final policymaker for purposes of

municipal liability under section 1983. This is simply not the case,

however. As both the Fifth and Seventh Circuits have held, a princi-

pal decisionmaker's practice of acquiescence in the decisions of a

subordinate can result in municipal liability for the actions of that

subordinate, even where, as here, the principal municipal policymaker

formally retains final review authority over all decisions by subordi-

nates. See Gros v. City of Grand Prairie, 181 F.3d 613, 616 n.2 (5th

Cir. 1999) (stating that a statutorily designated policymaker's custom-

ary refusal to exercise some theoretical final review authority over a

municipal official can establish that official as the final policymaker);

Canfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316,

1325 (7th Cir. 1993) (stating that a practice of committing disciplin-

ary matters to the discretion of a subordinate in a school system argu-

ably "could result in the actions of the subordinate, however

conducted, being municipal policy as long as the official is acting

14

within the scope of his or her employment"). To my knowledge, no

circuit has held otherwise. Certainly, ours has not. We have long held,

as have the Fifth and Seventh Circuits, that municipal liability can lie

where final decisionmaking authority effectively resides in the munic-

ipality's subordinate officials. See, e.g., Austin v. Paramount Parks,

Inc., 195 F.3d 715, 729-730 (4th Cir. 1999) (finding that a municipal

corporation may be liable under section 1983 for the actions of a sub-

ordinate official if that official in fact exercised final policymaking

authority); Spell v. McDaniel, 824 F.2d 1380, 1386 (4th Cir. 1987)

(stating that "a municipal governing body may not avoid attribution

of policy to itself simply by officially retaining unexercised ultimate

authority to countermand a policy or to discipline or discharge the

policymaker.").

In this case, the majority's (and the district court's) inquiry into

who could be deemed a policymaker begins and ends with a determi-

nation that the School Board never formally delegated its statutorily-

conferred final review authority over disciplinary decisions. Based

upon this determination of the absence of formal delegation, and this

determination alone, the majority concludes that the School Board

cannot be liable for the actions of its subordinate employees. How-

ever, such is to pretermit the inquiry. For, as explained, even if a gov-

ernmental entity with final policymaking authority has technically

retained its formal policymaking authority, it may yet be liable if,

through a custom or practice of acquiescence in the decisions of its

subordinates, it has effectively delegated its authority to those subordi-

nates. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989);

City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). Were it oth-

erwise, a municipality could essentially insulate itself from all liabil-

ity merely by vesting ultimate review authority in its governing body,

while at the same time surrendering all effective authority to its sub-

ordinate officials. See Praprotnik, 485 U.S. at 126. Most assuredly,

this was not congressional intent in enacting section 1983, nor would

I so constrict that provision, the very purpose of which is to ensure

accountability for official denial of constitutional right.

As even the majority acknowledges, ante at 6, the plaintiffs allege

in their complaint that the School Board did delegate the authority to

establish disciplinary policy to the individually named defendants,

J.A. 139, and that the defendants established policy with respect to

15

Crute's misconduct, J.A. 142, 144. And, in his affidavit, the Superin-

tendent testified that he in fact is responsible for "developing and

implementing policies and procedures for investigating complaints

made against teachers by parents and [for] developing and imple-

menting disciplinary procedures." J.A. 241. Because it can be reason-

ably inferred from these facts, if not others as well, that the

Superintendent, Director of Secondary Education, and Principal have

actual policymaking authority over complaint referrals and teacher

discipline, J.A. 489-91, 665-69, 681-82, I would hold that the district

court erred in granting the defendants summary judgment on the ques-

tion of the School Board's susceptibility to suit. Accordingly, I would

vacate the district court's judgment and remand with instructions to

provide the plaintiffs an opportunity to prove that final policymaking

authority on school disciplinary matters in the City of Portsmouth

effectively resides in the Superintendent, Director of Secondary Edu-

cation, School Principal, or some combination of the three.*

II.

Having held that a jury could reasonably conclude that the School

Board may permissibly be held liable under section 1983 for the con-

duct of its individual defendant employees, I would likewise hold that

there is a genuine issue of material fact as to whether the defendants

_________________________________________________________________

* Even were I not of the view that the plaintiffs have presented a triable

issue on whether the individual defendants possess final policymaking

authority in the area of personnel discipline, I would still vacate the judg-

ment of the district court and remand for trial because I believe that the

record contains ample evidence that the School Board actually knew of

Crute's past behavior and the complaints against him. For instance, one

aggrieved parent testified that "we showed [Crute's] tape to the people

at the School Board," J.A. 477, and "went down to the School Board

office and complained. And what we were told then was that they

couldn't do anything about it right now. What they needed to do is get

with [the Principal] and get other people in and we just all sat down and

talked about it." J.A. 489. These two statements would be enough, in my

view, to create a genuine issue about whether the School Board itself had

actual knowledge about Crute's prior activities and propensities, and

therefore should be held liable for its own (in)actions in failing to prevent

the constitutional deprivation suffered by plaintiffs and their minor

daughters.

16

acted with deliberate indifference to an obvious risk of constitutional

harm.

If school or other officials fail to heed obvious warning signs that

would place a reasonable person on notice of the potential for future

harmful conduct, their inaction can, as it should, constitute deliberate

indifference under section 1983. A jury presented with the evidence

of Crute's past actions could easily conclude that the defendants in

this case acted with such deliberate indifference. The plaintiffs allege,

J.A. 476-77, that the defendants knew that Crute (1) videotaped a

female student on his track team in a deserted and remote location in

the school after hours, J.A. 495-96; (2) instructed the student to

remove her underpants because, he told her, the uniform did not look

good with the underpants showing, J.A. 498; and (3) "zoom[ed] [the

camera] in on [the] crotch, [and] zoomed in on [the] rear" of the stu-

dent, while doing "a lot [of] moaning and groaning," J.A. 472, 474.

Past behavior may be predictive of similar future conduct, and unlike

the majority, I categorically reject the argument advanced by the

defendants and uncritically accepted by the district court that this rep-

rehensible conduct did not portend the events that eventually fol-

lowed. But even more importantly, the court is obliged to reject that

argument in adjudicating the defendants' motion for summary judg-

ment.

Based upon the foreseeability of the harm that actually occurred,

and the undisputed evidence that school officials did not discharge

Crute for his prior perversity, did not discipline him, did not repri-

mand him, did not counsel him, J.A. 1295-96, and did not even so

much as note the incident in his file, a jury could not only reasonably,

but readily, conclude that such official inaction constitutes a complete

abdication of an affirmative duty to act -- deliberate indifference to

foreseeable risk of harm. Such a conclusion would only be more rea-

sonable given that, at the same time that school officials maintained

that Crute's behavior was "not objectionable," they actually prohib-

ited him from (1) videotaping track members outside of track meets;

(2) driving team members home after practice; and (3) attending track

meets outside the school district without a female chaperone. J.A.

543. These defendant-imposed limitations on Crute's interaction with

the school's female students amply refute to the reasonable mind the

defendants' (frankly, incredible) claims that they found nothing

17

objectionable in Crute's conduct and thus reasonably could not have

foreseen that Crute would engage in the substantially similar, albeit

more egregious, conduct for which the plaintiffs now seek to hold the

School Board liable.

None of the three cases relied upon by the majority for its contrary

decision even supports the majority's decision; and certainly none of

them even remotely purports to foreclose the conclusion that is man-

dated by the plaintiffs' evidence. In both Jones v. Wellham, 104 F.3d

620 (4th Cir. 1997), and Gonzalez v. Ysleta Independent Sch. Dist.,

996 F.2d 745 (5th Cir. 1993), the policymakers acknowledged that the

conduct was inappropriate by punishing the wrongdoers. Here, the

school officials took no punitive action against Crute, claiming that

his conduct was "not objectionable." In Doe v. Dallas Independent

Sch. Dist., 153 F.3d 211 (5th Cir. 1998), the school administrators

concluded that the allegations against the teacher were untrue. Here,

in contrast, the school officials not only found the allegations against

Crute to be true; they failed even to appreciate the patent impropriety

of the conduct -- a failure that, in my view, easily satisfies the defini-

tion of deliberate indifference.

Accordingly, in addition to holding that the School Board may be

held accountable for the actions of its subordinate employees in this

case, I would hold that the plaintiffs have presented a jury question

on the question of the defendants' deliberate indifference to the plain-

tiffs' daughters' constitutional rights. Indeed, were it within my role

to do so, I would hold as a matter of law on the record before us that

the defendants were deliberately indifferent to the rights of these chil-

dren.

III.

In today's society, the denial of constitutional right often occurs as

a result of bureaucratic paralysis in the face of conduct that would

place any reasonable person on notice of the need for preventive

action, paralysis frequently attributable to fear of either political

offense or personal reprisal. The denial of rights often occurs not so

much as a result of the exercise of poor judgment, but as a result of

the complete inability to exercise any judgment at all. And this paral-

ysis is followed increasingly by the universal denial of official

18

responsibility once the plainly foreseeable actually occurs. I believe

section 1983 was intended to have full force in just such circum-

stances. I would give the statute that full force and hold that neither

the Portsmouth School Board's statutory retention of final review

authority over the school district's personnel decisions nor its incredi-

ble claim that it finds nothing objectionable in Coach Crute's conduct

enables the Board to escape liability for the alleged deliberate indif-

ference of its employees in this case. To hold otherwise is to rob sec-

tion 1983 of much of its intended deterrent value by allowing

municipalities to avoid liability for constitutional deprivation through

administrative artifice or bureaucratic incapacitation, respectively.

19