Baynard v. Malone

Filed: October 19, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 00-2340(L)

(CA-99-621-A)

Jackson Baynard,

Plaintiff - Appellee,

versus

Catherine Malone, etc.,

Defendant - Appellant.

O R D E R

The court amends its opinion filed September 26, 2001, as

follows:

On page 12, third full paragraph, line 9 -- the citation to

Franklin v. Gwinnett County is corrected to read “503 U.S. 60,

75-76.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JACKSON BAYNARD,

Plaintiff-Appellee,

v.

CATHERINE MALONE, former principal

of the Charles Barrett Elementary

School,

Defendant-Appellant,

and

CRAIG J. LAWSON; ALEXANDRIA CITY

SCHOOL BOARD, a body corporate;

PAUL MASEM, individually and in his

official capacity as former

Superintendent of Schools,

Alexandria City Public Schools;

O.F. DUTCH BECKHOFF, individually

No. 00-2340

and in his official capacity as

former Assistant Superintendent of

Alexandria City Public Schools;

MAXINE J. WOOD, individually and

in her official capacity as Assistant

Superintendent of Alexandria City

Public Schools; SPORTS

INTERNATIONAL, INCORPORATED, a

Maryland corporation; CONWAY

SCHOOL BOARD, a New Hampshire

regional school board; ROBERT

KAUTZ, individually and in his

official capacity as former

Superintendent of Conway School

Board,

Defendants.

JACKSON BAYNARD,

Plaintiff-Appellant,

v.

ALEXANDRIA CITY SCHOOL BOARD, a

body corporate; PAUL MASEM,

individually and in his official

capacity as former Superintendent

of Schools, Alexandria City Public

Schools; O.F. DUTCH BECKHOFF,

individually and in his official

capacity as former Assistant

Superintendent of Alexandria City

Public Schools,

Defendants-Appellees,

and

No. 00-2341

CATHERINE MALONE, former principal

of the Charles Barrett Elementary

School; CRAIG J. LAWSON; MAXINE J.

WOOD, individually and in her

official capacity as Assistant

Superintendent of Alexandria City

Public Schools; SPORTS

INTERNATIONAL, INCORPORATED, a

Maryland corporation; CONWAY

SCHOOL BOARD, a New Hampshire

regional school board; ROBERT

KAUTZ, individually and in his

official capacity as former

Superintendent of Conway School

Board,

Defendants.

2

JACKSON BAYNARD,

Plaintiff-Appellee,

v.

CATHERINE MALONE, former principal

of the Charles Barrett Elementary

School,

Defendant-Appellant,

and

CRAIG J. LAWSON; ALEXANDRIA CITY

SCHOOL BOARD, a body corporate;

PAUL MASEM, individually and in his

official capacity as former

Superintendent of Schools,

Alexandria City Public Schools;

O.F. DUTCH BECKHOFF, individually

No. 00-2568

and in his official capacity as

former Assistant Superintendent of

Alexandria City Public Schools;

MAXINE J. WOOD, individually and

in her official capacity as Assistant

Superintendent of Alexandria City

Public Schools; SPORTS

INTERNATIONAL, INCORPORATED, a

Maryland corporation; CONWAY

SCHOOL BOARD, a New Hampshire

regional school board; ROBERT

KAUTZ, individually and in his

official capacity as former

Superintendent of Conway School

Board,

Defendants.

3

JACKSON BAYNARD,

Plaintiff-Appellant,

v.

CATHERINE MALONE, former principal

of the Charles Barrett Elementary

School; ALEXANDRIA CITY SCHOOL

BOARD, a body corporate; PAUL

MASEM, individually and in his

official capacity as former

Superintendent of Schools,

Alexandria City Public Schools;

O.F. DUTCH BECKHOFF, individually

and in his official capacity as

former Assistant Superintendent of

Alexandria City Public Schools,

No. 00-2569

Defendants-Appellees,

and

CRAIG J. LAWSON; MAXINE J. WOOD,

individually and in her official

capacity as Assistant Superintendent

of Alexandria City Public Schools;

SPORTS INTERNATIONAL,

INCORPORATED, a Maryland

corporation; CONWAY SCHOOL

BOARD, a New Hampshire regional

school board; ROBERT KAUTZ,

individually and in his official

capacity as former Superintendent

of Conway School Board,

Defendants.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-99-621-A)

4

Argued: June 6, 2001

Decided: September 26, 2001

Before WILKINS and MICHAEL, Circuit Judges, and

Irene M. KEELEY, Chief United States District Judge

for the Northern District of West Virginia,

sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the majority

opinion, in which Chief Judge Keeley joined. Judge Michael wrote an

opinion concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: William T. Bennett, BURCH & CRONAUER, P.C.,

Washington, D.C., for Appellants. Stephen C. Glassman, GLASS-

MAN & BULLOCK, Vienna, Virginia; Francis Joseph Prior, Jr.,

SICILIANO, ELLIS, DYER & BOCCAROSSE, Fairfax, Virginia, for

Appellees. ON BRIEF: Larry N. Burch, Tobi Burch-Rates, BURCH

& BURCH-RATES, L.L.C., Greenbelt, Maryland, for Appellee Bay-

nard. William J. Carter, Thomas L. McCally, Tina M. Maiolo, CARR

GOODSON, P.C., Washington, D.C., for Appellee Masem.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Jackson Baynard brought this action pursuant to 42 U.S.C.A.

§ 1983 (West Supp. 2000) and Title IX of the Education Amendments

of 1972, see 20 U.S.C.A. §§ 1681-88 (West 2000), against Catherine

Malone, Otto Beckhoff, Paul Masem, and the Alexandria City School

Board ("the ACSB"). Malone appeals an order of the district court

denying her motion for judgment as a matter of law. See Fed. R. Civ.

P. 50. Baynard cross-appeals orders of the district court granting judg-

5

ment as a matter of law to Beckhoff, Masem, and the ACSB. We

affirm all rulings of the district court.

I.

Prior to and during the 1990-91 school year, Craig J. Lawson was

employed by the ACSB as a sixth-grade teacher at Charles Barrett

Elementary School, where Malone was the principal.1 1 In March 1990,

a former student of Lawson's, Steven Leckie, met with Malone and

informed her that he had been sexually molested by Lawson when he

(Leckie) was a sixth-grade student, some 15 years earlier. Leckie

warned Malone that Lawson was a pedophile and advised her to

watch out for certain behavior by Lawson, such as spending extra

time with a student. Leckie stated, however, that he was not interested

in pressing charges against Lawson. The following day, Leckie's

mother telephoned Malone and confirmed her son's story. Malone

took no action after receiving this information and did not relay the

information to anyone. She did not report the alleged incident to Child

Protective Services (CPS) because of Leckie's unwillingness to

become involved in a police investigation. Later that spring, an

unidentified woman informed Malone during a school function that

Lawson had sexually molested a student. Malone did not take the

woman's name or make any record of this conversation.

In the fall of 1990, Baynard transferred to Charles Barrett Elemen-

tary and was assigned to Lawson's classroom. Lawson began to

molest Baynard almost immediately, and the abuse continued until

Baynard entered college. The abuse occurred on school grounds

before, during, and after school hours; Lawson also abused Baynard

during camping trips and at Lawson's home.

In November 1990, the school librarian, Lillian Newman, visited

Lawson's classroom before school hours and observed Baynard sit-

ting on Lawson's lap ("the lap-sitting incident "). Lawson's arm was

around Baynard's shoulders, and their faces were very close together.

When Lawson saw Newman he jumped up, spilling Baynard to the

floor. Newman thought the behavior was inappropriate and related the

_________________________________________________________________

1 Lawson is not a party to this appeal.

6

incident to Malone later that morning. Malone spoke with Lawson,

who apparently convinced her that what Newman had observed was

an innocent "father-son chat." J.A. 166. Malone advised Lawson that

she had observed excessive physical contact between Baynard and

Lawson, which she characterized as being initiated by Baynard.

Malone counseled Lawson to limit physical contact with students, and

Lawson promised to admonish Baynard to behave more appropri-

ately. Malone took no further action at that time.

Between Thanksgiving and Christmas, a teacher at Barrett, Rose-

mary Herman, reported to Malone that a neighbor had informed her

that Lawson abused children. Malone responded that "she couldn't

tell [Herman] not to say anything about this, because it was out in the

neighborhood." Id. at 368. According to Malone's testimony, it was

not until this point that she perceived a danger to Lawson's students.

In January 1991, she contacted Beckhoff, the ACSB's personnel

director. Malone told Beckhoff about the accusation made by Leckie

in March 1990 and Herman's report and informed Beckhoff that Law-

son was very physical with the students. However, Malone did not

mention Baynard or tell Beckhoff about the lap-sitting incident.

Beckhoff immediately began an investigation. He instructed

Malone to keep records of any and all complaints from parents and

to monitor Lawson's activities. Malone complied with the latter

request by walking the halls of the school several times a day, being

sure to stop at Lawson's classroom. She also tried to watch Lawson

at recess and observed his interactions with students. Although Bay-

nard often stayed after school with Lawson--sometimes for as long

as one and one-half hours--and Lawson frequently gave Baynard a

ride home, Malone testified that she never observed them together

during the course of her monitoring efforts.

Beckhoff's part of the investigation involved interviewing Leckie

and his parents and the husband of the neighbor who had spoken to

Herman.22 Beckhoff also examined Lawson's personnel file and con-

tacted Lawson's former school district in New Hampshire. As a result

_________________________________________________________________

2 Beckhoff informed Masem, the superintendent of the ACSB, that the

investigation of Lawson was occurring and periodically updated Masem

on its progress. Masem took no active role in the investigation.

7

of his investigation, Beckhoff came to believe that Leckie had been

abused by Lawson. Beckhoff contacted CPS, which informed him

that it could not investigate Leckie's allegations because Leckie was

an adult. Beckhoff then involved the Alexandria City Police Depart-

ment. Leckie cooperated with the police investigation but refused to

initiate a tape-recorded telephone conversation with Lawson. As a

result, the investigation was closed for lack of evidence.

Soon after the police investigation was closed, Lawson resigned

from Barrett. He nevertheless continued to abuse Baynard until Bay-

nard was a freshman in college. Baynard finally reported the abuse,

and Lawson was arrested and convicted.

In April 1999, Baynard brought this action alleging, as is relevant

to this appeal, that the ACSB had violated Title IX and that Malone,

Beckhoff, and Masem were liable under § 1983. The district court

granted judgment as a matter of law to Beckhoff and Masem at the

close of the evidence. The jury returned verdicts against the ACSB for

$700,000 and against Malone for $350,000. The district court thereaf-

ter granted judgment as a matter of law to the ACSB, reasoning that

the ACSB could not be held vicariously liable because Malone lacked

authority to institute corrective measures against Lawson. See Bay-

nard v. Lawson, 112 F. Supp. 2d 524, 531-34 (E.D. Va. 2000). The

court denied Malone's motion for judgment as a matter of law, rea-

soning that a rational jury could conclude from the evidence that

Malone was deliberately indifferent to the risk of constitutional injury

to Baynard. See id. at 529-30.

Malone now appeals, arguing that the district court erred in deny-

ing her motion for judgment as a matter of law. Baynard cross-

appeals, maintaining that the district court erred in granting judgment

as a matter of law to Beckhoff, Masem, and the ACSB. 3

_________________________________________________________________

3 Baynard also makes a conclusory argument that he was entitled to a

larger award of attorneys' fees from Malone. We reject this claim with-

out further discussion.

8

II.

We first consider Malone's appeal of the denial of her motion for

judgment as a matter of law, which we review de novo, see Konkel

v. Bob Evans Farms Inc., 165 F.3d 275, 279 (4th Cir. 1999). We must

view the evidence in the light most favorable to Baynard, the nonmo-

vant, and draw all reasonable inferences in his favor without weighing

the evidence or assessing the witnesses' credibility. See Sales v.

Grant, 158 F.3d 768, 775 (4th Cir. 1998). "The question is whether

a jury, viewing the evidence in the light most favorable to [Baynard],

could have properly reached the conclusion reached by this jury."

Benesh v. Amphenol Corp. (In re Wildewood Litigation), 52 F.3d 499,

502 (4th Cir. 1995). We must reverse if a reasonable jury could only

rule in favor of Malone; if reasonable minds could differ, we must

affirm. See Sales, 158 F.3d at 775; see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986) (explaining that judgment as

a matter of law is proper if "there can be but one reasonable conclu-

sion as to the verdict").

There is no dispute concerning the legal standards that govern Bay-

nard's § 1983 claim against Malone. It is well settled that "supervi-

sory officials may be held liable in certain circumstances for the

constitutional injuries inflicted by their subordinates."4 4 Shaw v.

Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Such liability is not based

on ordinary principles of respondeat superior, but rather is premised

on "a recognition that supervisory indifference or tacit authorization

of subordinates' misconduct may be a causative factor in the constitu-

tional injuries they inflict on those committed to their care." Slakan

v. Porter, 737 F.2d 368, 372 (4th Cir. 1984). In order to establish

supervisory liability under § 1983, a plaintiff must demonstrate:

(1) that the supervisor had actual or constructive knowledge

that his subordinate was engaged in conduct that posed a

pervasive and unreasonable risk of constitutional injury to

citizens like the plaintiff; (2) that the supervisor's response

to that knowledge was so inadequate as to show deliberate

indifference to or tacit authorization of the alleged offensive

_________________________________________________________________

4 There is no dispute that the molestation of Baynard by Lawson was

a "constitutional injury."

9

practices[ ]; and (3) that there was an affirmative causal link

between the supervisor's inaction and the particular consti-

tutional injury suffered by the plaintiff.

Shaw, 13 F.3d at 799 (internal quotation marks omitted).

Malone first argues that there is no evidence to support a conclu-

sion that she had actual or constructive knowledge of a risk to Law-

son's students.55 We disagree. By the end of 1990, Malone knew that

Leckie claimed to have been abused by Lawson; that Newman had

observed Baynard sitting on Lawson's lap in a manner Newman

believed to be inappropriate; that Lawson was very physical with his

students, often putting his arm around them in the halls; and that Law-

son frequently took male students on camping trips at which no other

adults were present. Malone argues that all of these facts, except the

report from Leckie, are subject to benign interpretation. While this is

true, it is also beside the point. A reasonable jury could conclude from

the evidence presented that the conduct of which Malone was aware

provided her with at least constructive knowledge of an unreasonable

risk of constitutional injury to Lawson's students.

Malone next maintains that her actions toward Lawson, although

inadequate to prevent or stop the abuse of Baynard, did not evince

deliberate indifference to the risk of constitutional injury to Lawson's

students. "Deliberate indifference is a very high standard--a showing

of mere negligence will not meet it." Grayson v. Peed, 195 F.3d 692,

695 (4th Cir. 1999), cert. denied, 529 U.S. 1067 (2000); see Farmer

v. Brennan, 511 U.S. 825, 835 (1994) (explaining that "deliberate

indifference describes a state of mind more blameworthy than negli-

gence" but "is satisfied by something less than acts or omissions for

the very purpose of causing harm or with knowledge that harm will

result"). Actions that in hindsight are "unfortunate" or even "impru-

_________________________________________________________________

5 Malone argues primarily that she was not deliberately indifferent to

a risk of constitutional injury to Baynard. However, Shaw makes clear

that the appropriate inquiry is whether Malone was deliberately indiffer-

ent to a risk that Lawson was abusing any of his students. See id. (noting

that the inquiry is whether supervisor was on notice of conduct that

posed a risk of constitutional injury "to citizens like the plaintiff"

(emphasis added)).

10

dent" will not suffice. Jones v. Wellham, 104 F.3d 620, 627 (4th Cir.

1997). Indeed, a supervisory official who responds reasonably to a

known risk is not deliberately indifferent even if the harm is not

averted. See Farmer, 511 U.S. at 844; Doe v. Dallas Ind. Sch. Dist.,

153 F.3d 211, 219 (5th Cir. 1998) (concluding that school official

who investigated complaint of sexual abuse was not deliberately

indifferent even though official erroneously concluded that complaint

was baseless).

Based upon the evidence presented at trial, a rational jury could

conclude that Malone was deliberately indifferent to the risk that

Lawson was abusing his students, particularly Baynard. Even if

Malone's response to the initial report from Leckie in the Spring of

1990 was reasonable, a factfinder could reasonably infer that

Malone's failure to respond to mounting evidence of potential mis-

conduct by Lawson exhibited deliberate indifference. In particular,

Malone's desultory efforts at "monitoring" Lawson support the verdict.6

6

Accordingly, we affirm the denial of Malone's motion for judgment

as a matter of law.

III.

On cross-appeal, Baynard contends that the district court erred in

granting judgment as a matter of law to Beckhoff, Masem, and the

ACSB. With respect to Beckhoff and Masem, Baynard contends that

the district court erred in concluding that no rational jury could find

deliberate indifference. With respect to the ACSB, Baynard maintains

that the district court erred in concluding that the ACSB could not be

held vicariously liable under Title IX for the deliberate indifference

of Malone. We affirm all three rulings.

_________________________________________________________________

6 Additionally, Malone relies on Jones, 104 F.3d at 627, for the propo-

sition that no rational jury could find a causal link between her deliberate

indifference and the constitutional injury suffered by Baynard. We reject

Malone's causation argument on the reasoning of the district court. See

Baynard, 112 F. Supp. 2d at 529-30.

11

A.

In light of the evidence detailed above, we have little difficulty in

concluding that no rational jury could find that Beckhoff was deliber-

ately indifferent to a risk that Lawson was molesting his students.

Beckhoff instituted a thorough investigation immediately upon

receiving the report from Malone, during which he interviewed Lec-

kie and others who had raised allegations regarding Lawson's past

conduct. Beckhoff further instructed Malone, who was responsible for

the day-to-day supervision of Lawson, to closely monitor Lawson and

report any incidents or complaints. Importantly, Beckhoff never had

any knowledge of the lap-sitting incident.7

7

We likewise affirm the grant of judgment as a matter of law to

Masem. As superintendent, it was not Masem's responsibility to con-

duct the investigation himself. Moreover, since Beckhoff's investiga-

tion was adequate, Masem did not act improperly in failing to direct

Beckhoff to take some other action.

B.

We next turn to Baynard's claim that the district court erred in

granting judgment as a matter of law to the ACSB. As is relevant

here, Title IX provides that "[n]o person in the United States shall, on

the basis of sex, . . . be subjected to discrimination under any educa-

tion program or activity receiving Federal financial assistance." 20

U.S.C.A. § 1681(a). This prohibition encompasses sexual harassment

of a student by a teacher and is enforceable through a judicially

implied private right of action for damages against a school district.

See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75-76

(1992). We conclude that the district court correctly held that no ratio-

nal jury could find in favor of Baynard on his Title IX claim.

_________________________________________________________________

7 Although Beckhoff was aware that Lawson had been seen walking

down the hallway of the school with his arm around Baynard, such prac-

tices were common among teachers at that time.

12

1.

Title IX conditions "an offer of funding on a promise by the recipi-

ent not to discriminate, in what amounts essentially to a contract

between the Government and the recipient of funds." Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). In Gebser, the

Supreme Court explained that the contractual nature of Title IX

requires that a funding recipient have notice that it may be liable for

a monetary award, i.e., it must actually be aware of the discrimination

and fail to remedy it. See id. at 287-88. In other words, a school dis-

trict may be held liable under Title IX "only for its own misconduct";

the implied damages remedy is available only when "the funding

recipient engages in intentional conduct that violates the clear terms

of the statute." Davis v. Monroe County Bd. of Educ., 526 U.S. 629,

640, 642 (1999).

In accordance with these considerations, the Supreme Court has

expressly rejected the use of "principles of respondeat superior or

constructive notice" for imposing liability on a school district under

Title IX. Gebser, 524 U.S. at 285. Rather, the Court held in Gebser

that "a damages remedy will not lie under Title IX unless an official

who at a minimum has authority to address the alleged discrimination

and to institute corrective measures on the [district's] behalf has

actual knowledge of discrimination" and is deliberately indifferent to

it. Id. at 290. As the Fifth Circuit phrased the test in a pre-Gebser rul-

ing,

a school district can be liable for teacher-student sexual

harassment under Title IX only if a school official who had

actual knowledge of the abuse was invested by the school

board with the duty to supervise the employee and the

power to take action that would end such abuse and failed

to do so.

Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir.

1997).

The partial dissent asserts that the standard we apply is too strict

and that the notice requirement is satisfied by actual notice of a sub-

stantial risk of ongoing sexual abuse. Gebser is quite clear, however,

13

that Title IX liability may be imposed only upon a showing that

school district officials possessed actual knowledge of the discrimina-

tory conduct in question. See Gebser, 524 U.S. at 285 ("[W]e con-

clude that it would frustrate the purposes of Title IX to permit a

damages recovery against a school district for a teacher's sexual

harassment of a student based on principles of respondeat superior or

constructive notice, i.e., without actual notice to a school district offi-

cial." (internal quotation marks omitted)); id. at 289 (rejecting stan-

dard that would allow imposition of liability when "the district had no

actual knowledge of the teacher's conduct"); id. at 290 (holding that

liability may be imposed only when an appropriate school district

official possesses "actual knowledge of discrimination").

To the extent there is any doubt about the nature of the actual

notice requirement articulated in Gebser, it is removed by the subse-

quent opinion of the Court in Davis. In recounting the Gebser hold-

ing, the Davis court stated, "In Gebser, we concluded that a recipient

of federal education funds may be liable in damages under Title IX

where it is deliberately indifferent to known acts of sexual harassment

by a teacher." Davis, 526 U.S. at 641 (emphasis added). The Court

further explained that in Gebser,

we rejected the use of agency principles to impute liability

to the district for the misconduct of its teachers. Likewise,

we declined the invitation to impose liability under what

amounted to a negligence standard--holding the district lia-

ble for its failure to react to teacher-student harassment of

which it knew or should have known. Rather, we concluded

that the district could be liable for damages only where the

district itself intentionally acted in clear violation of Title IX

by remaining deliberately indifferent to acts of teacher-

student harassment of which it had actual knowledge.

Davis, 526 U.S. at 642 (citations omitted) (second emphasis added).

2.

We agree with the district court that no rational jury could find the

Gebser standard satisfied here.88 In the first place, no rational jury

_________________________________________________________________

8 Although the district court and the parties address only the second

prong of the Gebser standard--whether knowledge of discrimination was

14

could conclude that Malone--the relevant official for purposes of the

ACSB's liability under Title IX--had actual notice that Lawson was

abusing one of his students.9

9 Although Malone certainly should have

been aware of the potential for such abuse, and for this reason was

properly held liable under § 1983, there is no evidence in the record

to support a conclusion that Malone was in fact aware that a student

was being abused.

Secondly, no rational jury could find that Malone was invested

with the power to take corrective action on behalf of the ACSB. We

agree with the Fifth Circuit that whether a supervisory employee may

be viewed as the proxy of the school district depends upon whether

the district has delegated to that employee the traditional powers of

an employer, e.g., the authority to hire and terminate employees. See

Rosa H., 106 F.3d at 660. "This inquiry circumscribes those school

employees in the chain of command whom the school board has

appointed to monitor the conduct of other employees and, as distin-

guished from reporting to others, remedy the wrongdoing them-

selves." Id.

We agree with the district court that the principal of a public school

in Virginia cannot be considered the functional equivalent of the

school district. There is no question that a principal in the Virginia

school system possesses substantial authority over the school to

which he or she is assigned. For example, a principal must "provide

instructional leadership," is responsible for the administration of the

school, and must supervise its operations and management. Va. Code

_________________________________________________________________

possessed by an individual with authority to act for the school district--

we conclude that the record also supports affirmance on the "actual

notice" prong. See Republican Party v. Martin, 980 F.2d 943, 952 (4th

Cir. 1992) (explaining that "we may affirm a judgment for any reason

appearing on the record").

9 We note that a Title IX plaintiff is not required to demonstrate actual

knowledge that a particular student was being abused. We believe that

the actual notice requirement could have been satisfied, for example, if

Malone had had actual knowledge that Lawson was currently abusing

one of his students, even without any indication of which student was

being abused.

15

Ann. § 22.1-293(B) (Michie 2000). Additionally, the principal is

responsible for supervising teachers and evaluating employee perfor-

mance. See Va. Code Ann. § 22.1-293(C) (Michie 2000); Lentz v.

Morris, 372 S.E.2d 608, 610-11 (Va. 1988).

Critically absent from the scope of a principal's authority, how-

ever, are the powers that would make a principal the proxy of the

school district: the power to hire, fire, transfer, or suspend teachers.

In Virginia, those powers are reserved exclusively to the school dis-

trict; a principal may only make recommendations regarding such

matters. See Va. Code Ann. § 22.1-295(A) (Michie 2000) ("The

teachers in the public schools of a school division shall be employed

and placed in appropriate schools by the school board upon recom-

mendation of the division superintendent." (emphasis added)); id.

§ 22.1-293(C) ("A principal may submit recommendations to the divi-

sion superintendent for the appointment, assignment, promotion,

transfer and dismissal of all personnel assigned to his supervision."

(emphasis added)). Simply put, Virginia has made an explicit policy

decision that school principals do not exercise the powers of an

employer on behalf of the school district. Because Malone had no

independent authority to suspend, reassign, or terminate Lawson, no

rational jury could have concluded that her knowledge of ongoing dis-

crimination at Charles Barrett Elementary should be imputed to the

ACSB.

IV.

For the reasons set forth above, we conclude that the district court

correctly denied Malone's motion for judgment as a matter of law and

correctly granted the motions of Beckhoff, Masem, and the ACSB.

Accordingly, we affirm.

AFFIRMED

MICHAEL, Circuit Judge, concurring in part and dissenting in part:

I concur in parts I, II, and III.A. of the majority opinion, but I

respectfully dissent from part III.B. The jury's verdict against the

school board on Title IX should be reinstated because (1) Malone (the

16

principal) had actual knowledge of a substantial risk of sexual abuse

to students in her elementary school and (2) she had the authority to

institute corrective measures to eliminate the risk.

Title IX provides that "[n]o person . . . shall, on the basis of sex

. . . be subjected to discrimination under any education program or

activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).

A school board receiving federal funds is liable under Title IX if an

appropriate official has "actual knowledge of discrimination in the

[board's] programs and fails adequately to respond. . . . [T]he [inade-

quate] response must amount to deliberate indifference to discrimina-

tion." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290

(1998).

I.

The majority affirms the grant of judgment as a matter of law to

the school board, holding that under Gebser "Title IX liability may be

imposed only upon a showing that school district officials possessed

actual knowledge of the discriminatory conduct in question." Ante at

14. The majority explains that "the actual notice requirement [can be]

satisfied, for example, if [the appropriate official] had had actual

knowledge that [the teacher] was currently abusing one of his stu-

dents, even without any indication of which student was being

abused." Ante at 15 n.9. The explanation is a step in the right direc-

tion, but it still means that the actual notice standard is satisfied only

if the school board official was aware of current sexual abuse to

someone in the student body (not necessarily the eventual plaintiff).

This is wrong, I respectfully suggest, because Gebser does not require

that the appropriate official have actual knowledge of current abuse.

Rather, Gebser leaves room for an actual notice standard that requires

the appropriate official to have actual knowledge of at least a substan-

tial risk of sexual abuse (or discrimination).

Gebser held that a complaint by parents that a teacher "had made

inappropriate [sexually suggestive] comments during class . . . was

plainly insufficient to alert the principal to the possibility that [the

teacher] was involved in a sexual relationship with a student." Geb-

ser, 524 U.S. at 291. Thus, while Gebser makes clear that the actual

notice standard requires more than a complaint about inappropriate

17

remarks, the case does not definitively establish the boundaries of

actual notice. By insisting that actual notice cannot be satisfied by

anything less than actual knowledge of current abuse, the majority's

new standard "set[s] the bar [too] high." Doe v. Sch. Admin. Dist. No.

19, 66 F. Supp. 2d 57, 63 (D. Me. 1999).* Under the majority's stan-

dard a school board will escape liability even if an appropriate official

knew that a teacher was engaging in behavior that raised warning

flags of substantial risk as long as the official did not actually know

that the teacher was abusing a student. The majority's standard will

also let a school board off the hook if its official knew that a teacher

had abused a student in the past as long as the official did not know

of any current abuse.

These results, brought about by a notice standard that is too restric-

tive, are inconsistent with the objectives of Title IX and with the

actual notice and deliberate indifference theory of liability recognized

by the Supreme Court. First, one of Title IX's principal objectives is

to provide effective protection against discriminatory or abusive prac-

tices in schools that receive federal funds. See Gebser, 524 U.S. at

286. Under Title IX a school board has "a duty not to permit teacher-

student [sexual abuse] in its schools." Davis v. Monroe County Bd. of

Educ., 526 U.S. at 643 (internal quotations omitted), and this duty is

imposed "to induce school boards to adopt and enforce practices that

will minimize the danger that vulnerable students will be exposed to

such [abuse]," Gebser, 524 U.S. at 300 (Stevens, J., dissenting). The

majority's notice standard actively undermines Title IX's objectives

because it discourages efforts to identify situations of potential abuse.

The appropriate official can simply wait until she gains actual knowl-

edge of current abuse. In short, the majority's standard does little to

_________________________________________________________________

*The majority contends that Davis v. Monroe County Bd. of Educ.,

526 U.S. 629 (1999), removes any doubt that the actual notice standard

requires actual knowledge of current misconduct. See ante at 14. I dis-

agree. Davis's primary point is that a school board may be liable under

Title IX for student-on-student harassment. And while Davis reaffirms

Gebser's rejection of the constructive notice and respondeat superior

theories of liability, Davis did not clarify what constitutes actual notice

because notice was not at issue. Rather, Davis held that a complaint

alleging that a school principal had actual knowledge of student-on-

student harassment stated a claim.

18

prevent sexual abuse from occurring in the first place, even though

prevention is the best way to further Title IX's goal of nondiscrimina-

tion. Second, the majority's notice standard -- requiring actual

knowledge of current abuse -- is too restrictive to afford the full mea-

sure of protection intended under Gebser's actual notice and deliber-

ate indifference theory of liability. According to the Supreme Court,

"If a funding recipient does not engage in [abuse] directly, it may not

be liable for damages unless its deliberate indifference `subject[s]' its

students to [abuse]. That is, the deliberate indifference must, at a

minimum, `cause [students] to undergo'[abuse] or `make them liable

or vulnerable' to it." Davis, 526 U.S. at 644-45 (second and fourth

alterations in original) (emphasis added) (quoting Random House

Dictionary of the English Language 1415 (1966)). Thus, if a board is

liable when its official's deliberate indifference makes students vul-

nerable to abuse, the official's knowledge of that vulnerability (or

substantial risk) surely satisfies the actual notice standard. Under the

majority's theory, however, liability is triggered only if the official

had knowledge of actual abuse.

The proper boundary for what constitutes actual notice lies some-

where between the one adopted by the majority (actual knowledge of

current sexual abuse) and the one rejected by Gebser (actual knowl-

edge of sexually suggestive comments in class). I am convinced that

the actual notice requirement is met when an appropriate official has

actual knowledge of a substantial risk of abuse. An appropriate offi-

cial has actual knowledge of a substantial risk if she knows of facts

indicating a substantial risk and she subjectively believes that the

facts signal such a risk. See Rosa H. v. San Elizario Indep. Sch. Dist.,

106 F.3d 648, 659 (5th Cir. 1997). This is not a constructive notice

or respondeat superior theory, which would impose liability even if

the appropriate official had no actual knowledge of anything. Thus,

the standard I propose is consistent with Gebser. The Gebser Court

was, of course, unwilling to impose liability on school districts that

lack any notice of discrimination. "[A] central purpose of requiring

notice of the violation . . . is to avoid diverting education funding

from beneficial uses where a recipient was unaware of discrimination

in its programs." Gebser, 524 U.S. at 289. Actual knowledge of a sub-

stantial risk of abuse, however, provides fair and sufficient warning

to a school board that it faces potential liability.

19

My interpretation of what satisfies Gebser's actual notice require-

ment is consistent with that of district courts that have confronted this

question. See, e.g., Gordon v. Ottumwa Cmty. Sch. Dist., 115 F. Supp.

2d 1077, 1082 (S.D. Iowa 2000) (actual notice "does not set the bar

so high that a school district is not put on notice until it receives a

clearly credible report of sexual abuse from the plaintiff-student. At

some point . . . a supervisory school official knows. . . that a school

employee is a substantial risk to sexually abuse children.") (internal

citations and quotations omitted); Massey v. Akron City Bd. of Educ.,

82 F. Supp. 2d 735, 744 (N.D. Ohio 2000) ("For actual notice to exist,

an agent of the school must be aware of facts that indicate a likeli-

hood of discrimination."); Frederick v. Simpson College, 149 F. Supp.

2d 826, 838 (S.D. Iowa 2001) (actual notice requires "actual notice

. . . that [the teacher] was at risk of sexually harassing a student.").

The evidence in this case supports the conclusion that Malone (the

principal) actually knew that Lawson (the teacher) posed a substantial

risk to the students of Charles Barrett Elementary School. Leckie, one

of Lawson's former student-victims, told Malone that he had been

sexually molested by Lawson. Leckie warned Malone to watch out

for certain telltale signs, such as whether Lawson was spending extra

time with a particular student or giving him rides home. Leckie's

mother also talked to Malone and confirmed her son's story. Two

other members of the community and a teacher informed Malone that

Lawson was a pedophile who had abused students. Malone herself

witnessed excessive physical contact between Baynard and Lawson in

the hallway at school. Specifically, Malone noticed Baynard "con-

stantly hanging onto" Lawson, and Malone recognized that this

behavior was "really inappropriate for a sixth grade student." Finally,

Malone was aware of an incident of particularly flagrant behavior

involving Lawson and Baynard. Newman, the school librarian,

walked into Lawson's classroom one morning before classes began

and saw the following: Baynard was sitting on Lawson's lap, Lawson

had his arm around Baynard, their faces were almost touching, and

Lawson was whispering to Baynard. When Lawson and Baynard saw

Newman, an expression of shock crossed their faces. Lawson jumped

up immediately, dumping Baynard on the floor. Newman "quickly

turned" and walked out of the room. She was upset at what she had

seen because "[i]t just didn't look right" and "was inappropriate."

Newman "didn't think this is anything you would do with a sixth

20

grade boy sitting on your lap." Newman promptly reported everything

she had seen to Malone. This evidence is sufficient to establish "ac-

tual notice" under Title IX because the jury could rationally conclude

that Malone knew the facts indicating that Lawson was a substantial

risk and that she personally understood that risk.

II.

For a school board to be liable under Title IX, there must be actual

notice to an "appropriate" official, that is, an official "who at a mini-

mum has authority to address the alleged discrimination and to insti-

tute corrective measures on the [school board's] behalf." Gebser, 524

U.S. at 290. Even though Malone, as school principal, had supervi-

sory authority over Lawson, the majority concludes that Malone is not

an appropriate official because her authority over personnel matters

was limited to making recommendations and she "had no independent

authority to suspend, reassign, or terminate Lawson." Ante at 16. I

disagree.

The principal is the highest ranking school official present at the

school every day, and she performs many functions on behalf of the

school board. Cf. Banks v. Sellers, 294 S.E.2d 862, 865 (Va. 1982)

(referring to the principal as "essentially a counterpart of the [divi-

sion] superintendent"); Pleasants v. Commonwealth, 203 S.E.2d 114,

116 (Va. 1974) (calling the principal "the duly authorized representa-

tive of the school board"). She is "responsible for the administration

of and shall supervise the operation and management of the school or

schools and property to which [s]he has been assigned." Va. Code

Ann. § 22.1-293(B). See also Banks, 294 S.E.2d at 865 (noting that

the principal "performs a large number of discretional and managerial

functions in the school"). The local school board "exercises control

and direction over [a teacher] through the school principal." Lentz v.

Morris, 372 S.E.2d 608, 610 (Va. 1988).

Virginia statutes and regulations assign to the principal the first line

of responsibility for ensuring that the students in her school are safe,

particularly from sexual abuse at the hands of their teachers. Cf.

Pleasants, 203 S.E.2d at 116 (noting that the principal is required to

"look out for the safety of the students"). Other school employees and

members of the community are expected to report instances of sexual

21

abuse to the principal. See Va. Code Ann. § 22.1-279.3:1(A) (desig-

nating principal as official to receive reports of sexual assault in

school); see also Alexandria City Pub. Sch., Child Abuse and Neglect,

Regulation File 2107-R (July 15, 1981) (directing teachers to notify

principal of suspected child abuse); Alexandria City Pub. Sch., Health

and Safety of Pupils, Policy File 2104 (Mar. 19, 1986) (directing

teachers to notify principal of classroom conditions that are dangerous

to children). The principal must then report these incidents to the divi-

sion superintendent, the student's parents, and the police. See Va.

Code Ann. § 22.1-279.3:1(C), (D); 8 Va. Admin. Code § 20-560-10.

In this case six different people reported to Malone, under the

assumption that she would implement the necessary measures to

make sure Lawson was no longer a threat to the children. Because

Malone was the supervisor of the school and the official designated

to receive complaints about sexual assaults, the school board should

not be able to avoid liability for Malone's deliberate indifference to

a known risk of teacher-on-student sexual abuse.

By emphasizing Malone's lack of authority to suspend, terminate,

or reassign Lawson, the majority has created an overly narrow con-

cept of an official who has authority "to institute corrective mea-

sures." Malone had the duty and authority to implement various

measures that would have contributed to preventing or stopping Law-

son's abuse of Baynard. For instance, as Lawson's supervisor,

Malone could have confronted Lawson with the reports she had

received and ordered him to stop the inappropriate behavior she per-

sonally witnessed. See Warren v. Reading Sch. Dist., 82 F. Supp. 2d

395, 399-400 (E.D. Pa. 2000) (holding that principal is an official

with authority to institute corrective measures because she has super-

visory authority over teachers and the power to question teachers

about suspicious behavior). In addition, Malone could have given the

division superintendent and the police a prompt and complete report

of Lawson's abusive behavior. See id. at 399 (concluding that the

principal's higher duty to report to appropriate authorities is a correc-

tive measure); see also Booker v. City of Boston, No. CIV.A.97-CV-

12534MEL, 2000 WL 1868180, at *3 (D. Mass. Dec. 12, 2000)

(holding that principal was an official with the authority to end the

sexual abuse because he "not only had the authority but the obligation

to notify [the Department of Social Services]" (emphasis in original)).

Other corrective measures that Malone could have taken include noti-

22

fying Baynard's parents and properly monitoring Lawson according

to the instructions of Beckhoff, the personnel director. The appropri-

ate official's authority to "institute corrective measures" does not have

to include the authority to suspend or fire. As long as the official pos-

sesses the ability and the duty to take meaningful steps toward stop-

ping the abuse, the official's deliberate indifference should translate

into school board liability under Title IX. See Morlock v. W. Cent.

Educ. Dist., 46 F. Supp. 2d 892, 911 (D. Minn. 1999) (holding that

"as the acting principal of the [alternative school program], the

school's sexual harassment coordinator and [the harassing teacher's]

superior, Fish had the power and the official responsibility to begin

the process of addressing plaintiff's complaint" of sexual harassment).

Malone had the authority to initiate steps to prevent or end Lawson's

abuse of Baynard.

Under the majority's approach, it appears that the class of appropri-

ate officials will be limited, at least in Virginia, to school board mem-

bers because only the school board has the power to suspend or

terminate a teacher. See 8 Va. Admin. Code § 20-90-70. As one court

has pointed out, defining the class of appropriate officials so narrowly

means that "a school district would virtually never face penalties for

sexual abuse of students unless school board members themselves

intended the harm. By the same token, victims of abuse would virtu-

ally never be able to recover, especially in large school districts, in

which school board members have little contact with the day-to-day

interactions between teachers and students." Rosa H., 106 F.3d at 659.

Gebser does not require such a narrow construction. Again, an appro-

priate official is simply one who "has authority to address the alleged

discrimination and to institute corrective measures." Gebser, 524 U.S.

at 290. Malone, as principal, was in a position to take corrective

action.

III.

In sum, the record supports the conclusion that Malone had actual

knowledge that Lawson posed a serious risk and that she had the

authority (but failed) to institute corrective measures to address this

risk. That is sufficient under Gebser to hold the school board liable

under Title IX. I would therefore reverse the district court's order

granting the school board's motion for judgment as a matter of law.

23