holding “mere failure of supervisory officials to act or investigate cannot be basis of liability,” but such officials could not “with impunity maintain a custom, practice or usage that communicated con-donation or authorization of assaultive be-. havior”
How later courts described this case
- holding “mere failure of supervisory officials to act or investigate cannot be basis of liability,” but such officials could not “with impunity maintain a custom, practice or usage that communicated con-donation or authorization of assaultive be-. havior”
- stating that the court inquires into “the general legal principles governing analogous factual situations, if any, and a subsequent determination whether the official should have related this established law to the instant situation”
- permitting claims against school officials to go forward based on evidence that they had caused sexual assaults to occur by concealing prior allegations of sexual abuse, discouraging students from pursuing complaints of sexual abuse, giving offending teachers excellent performance evaluations, and forcing an alleged victim to publicly recant her allegations
- holding that former students could maintain civil rights action against school officials for deliberately indifferent policies with respect to reports of teachers’ sexual misconduct
Written by the judges who cited it.
The opinion
STAPLETON, Circuit Judge,
concurring in part and dissenting in part:
After DeShaney, Ms. Stoneking’s contention that the defendants owed her a well-established constitutionally based duty to protect her from Mr. Wright is no longer tenable. I agree with the court, however, that she alleges an alternative and distinct theory of liability that is not rejected in DeShaney. The issue for decision is whether the defendants have qualified immunity with respect to any damage liability that might be imposed upon them individually on that theory. The court concludes that Superintendent Shuey is entitled to immunity and I agree. I dissent, however, from the court’s denial of immunity to Principal Smith and Assistant Principal Miller. Under Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987) and Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the relevant issue is whether reasonable school officials with the knowledge allegedly possessed by the defendants would have realized during the period from 1980 to 1983 that they were violating a well-established duty that they owed to Ms. Sto-neking under federal statutory or constitutional law. That issue must be resolved by looking to the pre-1983 case law dealing with the circumstances under which a supervisor can be held liable for the constitutional tort of someone he or she supervises. *732 As I read that case law 1 the only well-established duty imposed upon a supervisor by federal law was the duty to refrain from affirmative encouragement of the offending conduct. Accordingly, unless the complaint alleges such encouragement and unless Ms. Stoneking, after the filing of the motion for summary judgment, pointed to competent evidence from which a fact finder could find such encouragement, the defendants are entitled to immunity.
In Commonwealth of Penn. v. Porter, 659 F.2d 306 (3d Cir.1981), this court, ruling on Police Chief Porter’s liability, held that “encouragement” was a prerequisite to liability. We there stated that Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976), “require[d] that we focus on the degree to which Chief Porter participated in a pattern of violation by virtue of knowledge, acquiescence, support and encouragement.” 659 F.2d at 321 (emphasis added). We then cited the Chief’s “active[] support” of the constitutional tortfeasor, and the “affirmative steps” he took to impede legal action against the subordinate. Id. at 322 . As to the Mayor, the Porter court found that he had been “affirmatively involve[d]” with the constitutional tortfeasor and “strongly supported]” him. Id.
Porters conclusions on this matter were reiterated in Black v. Stephens, 662 F.2d 181, 191 (3d Cir.1981). In Black , this court stated that the evidence supported the jury’s finding “of the encouragement and support required to hold the [police chief] liable under section 1983.” (emphasis added). Finally, in Chinchello v. Fenton, 805 F.2d 126 (3d Cir.1986), we first acknowledged that a plaintiff might have an easier time proving supervisory liability in other circuits than in ours. We then reviewed Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976) and its progeny and concluded that supervisory liability could be found only where the official had both “contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents” and where there were “circumstances under which the supervisor’s inaction could be found to have communicated a message of approval to the offending subordinate.” 805 F.2d at 133 (emphasis added).
Under these cases, I am unable to say that a reasonable school administrator would understand that he would violate the well-established constitutional rights of students by failing to pursue a complaint of sexual abuse by a teacher with sufficient aggressiveness or even by discouraging such complaints. Under the law as it then existed, qualified immunity could be denied only if the circumstances were such that a reasonable school administrator would have realized he was communicating his approval to the offending teacher.
I acknowledge that in some contexts failures to discipline teachers shown to have misbehaved and discouragement of complaints about misbehaving teachers might conceivably be a part of a pattern of conduct that would communicate approval by the administration. However, where the misconduct at issue is sexual abuse of high school students and where the administrator has expressly instructed the offending teacher never again to be alone with a female student, it would take a lot more than this record contains to permit a fact finder to conclude that Wright understood the administration to favor his misdeeds.
Because Ms. Stoneking has neither alleged nor shown evidence of affirmative encouragement of Wright’s conduct by the individual defendants, I would hold that all three are entitled to immunity.
. The state of the law after City of Canton v. Harris, — U.S.-, 109 S.Ct. 1197 , 103 L.Ed.2d 412 (1989), is simply not relevant to the issue presented by this appeal.