Opposition Brief — Smith v. Stoneking

/ \ -~ S —

(Ht } upreme Court, U.S,

No. 89-780 © FILED

JEC 16

In The 138

: JOSEPH F. SPANIOL, JR,

Supreme Court of the United States °t©®«

October Term, 1989

a.

-

FREDERICK SMITH, in his individual and official

capacity as Principal of the Bradford Area High School;

RICHARD MILLER, in his individual and official capacity

as assistant principal of the Bradford High School; and

FREDERICK SHUEY, in his individual and official

capacity as Superintendent of the

Bradford Area School District,

Petitioners,

VS.

KATHLEEN STONEKING,

Respondent.

,

4

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

A.

_

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

,%

4

Wa. ace J. KNox

Counsel of Record

SEAN J. MCLAUGHLIN

RICHARD A. LANZILLO

KNox MCLAUGHLIN GORNALL

& SENNETT, P.C.

120 West Tenth Street

Erie, Pennsylvania 16501

(814) 459-2800

DEBORAH W. Bascox

Pecora DuKE & BasBcox

222 West Washington Street

P. O. Box 548

Bradford, Pennsylvania 16701

(814) 362-3896

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether public school administrators who adopt a

practice, ‘custom or policy of active concealment, tol-

eration and facilitation of instances of known or sus-

pected sexual abuse of students by their teachers are

entitled to qualified immunity where their conduct

results in repeated sexual assaults of students by

teachers.

Whether the constitu‘ onally protected liberty interest

of individuals in freedom from physical abuse and

the corresponding duty of government officials not to

sanction, encourage or facilitate violations of that

interest by their subordinates were clearly established

between 1979 and 1983.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . (sc55055 i

TABLE OF CONTENTS. 2.02. s.50 ii

TABLE OF AUTHORITIC®. ...55 sue iii

STATEMENT OF CASE .....cc case l

a. Procedural Posture. .....0s00s eee 1

b. Statement of Facts ..,...<9255se eee 2

ARGUMENT ... ... 5. <05aa eee 9

a. Summary of Argument....................... 9

b. The statements made by the Court of Appeals

in dicta do not merit review by the Supreme

Court oo... ccs nie 0g 11

c. The theory of liability upon which the Court of

Appeals based its judgment in Stoneking II is

unaffected by this Court’s decision in DeShaney

v. Winnebago County Department of Social Ser-

VICES . oo ans cone an ee 13

d. Petitioners’ contention that the holding of the

Court of Appeals creates a “new theory of per-

sonal liability for school officials” is incorrect

and does not merit Supreme Court review... 14

CONCLUSION

ili

TABLE OF AUTHORITIES

Page

CONSTITUTION

ES SE ee 11, 18

STATUTES

er re ce eee see ekbesesacesswens 13

Cases

Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034,

ee oe de wwteameboneees 16

Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert.

SE, ED BOI, DOD GEOUIED sc ceca ccccccesanscecas. 17

Bowen v. American Hospital Association, 476 US.

610, 96 S.Ct. 2101, 90 L.Ed.2d 584 (1986).......... 12

Bordanaro v. McLeod, 871 F.2d 1151 (1st Cir.), cerf.

denied sub nom. Everett v. Bordanaro, _U.S. _,

el ewes bedwneneneee 18

Chevron U.S.A., Inc. v. Natural Resources Defense

Counsel, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81

De Leads 6aak oa ees 12

City of Canton, Ohio v. Harris, 489 US. __, 109

oa eee ee ei es a 12, 18

Commonwealth v. Porter, 659 F.2d 306 (3d Cir. 1981)

(in banc), cert. denied, 458 U.S. 1121, 102 S.Ct.

Fe Be ee GD COED. cnn cs wana ninxenscecs 17

DeShaney v. Winnebago County Department of Social

Services, 489 U.S. __, 109 S.Ct. 998 (1989)

UCM cee eh bas 644440504 608 $ Sir de te ey 81, T2, 34

Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980).......... 16

iv

TABLE OF AUTHORITIES - Continued

Page

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73

Si Me I acy 5.o de dbas wena wap wee ae 4 15

Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51

> ib oo: ee ee ee 16

Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87

SE BPE CUP soko nk cknibsaowencsneoendass 14, 15

McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979) .... 17

Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86

EE UN SE ins scan cahdpaseenkedbeannee es. 1

People of Three Mile Island v. Nuclear Regulatory

Commissioners, 747 F.2d 139 (3d Cir. 1984)......... 16

Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46

COENEN, Vous skaecaens ce hsekh eee eeee naa s 17

Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96

eee: EE i od Midian oc Kea natawe ec iasceseses « 17

Sims v. Adams, 537 F.2d 829 (5th Cir. 1976).......... 17

Sowers v. Bradford Area School District, 694 F.Supp.

125 (W.D. Pa. 1988), aff'd without opinion, 869

F.2d 591 (3d Cir. 1989), vacated sub nom. Smith v.

Sowers, __ U.S. __, 109 S.Ct. 1634 (1989), aff'd

on remand, __ F.2d ____ (3d Cir. 1989).............. 5

Stoneking v. Bradford Area School District, 856 F.2d

594 (3d Cir. 1988), vacated sub nom. Smith v.

Stoneking, __ U.S. __, 109 S.Ct. 1333 (1989)

EU kid ceesdedancexkeserntetsesoneen 2.9

Stoneking v. Bradford Area School District, 882 F.2d

720 (3d Cir. 1989) (Stoneking Il)............... passim

Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied,

Ee, SO CRE Sas oes oS seen kesbvab oeaneras

STATEMENT OF THE CASE

a. Procedural Posture

Kathleen Stoneking (“Respondent” or “Stoneking”)

commenced this action pursuant to 42 U.S.C. Section 1983

(1982) in the United States District Court for the Western

District of Pennsylvania, Case No. 87-63E, against the

Bradford Area School District (“School District”), Fre-

derick Smith, the principal of the Bradford Area High

School, Richard Miller, the assistant principal, and Fre-

derick Shuey, the superintendent of the Bradford Area

School District.!

After some discovery, the defendants moved for sum-

mary judgment on various grounds, including that the

individual defendants (“Petitioners”) were shielded from

liability under t..c doctrine of qualified immunity. The

district court denied defendants’ motion in its entirety.

Stoneking v. Bradford Area School District, 667 F.Supp. 1088,

1102 (W.D. Pa. 1987). Petitioners appealed the district

court’s decision with respect to qualified immunity to the

United States Court of Appeals for the Third Circuit,

which affirmed.? Stoneking v. Bradford Area School District,

856 F.2d 594 (3rd Cir. 1988) (“Stoneking I”).

Thereafter, Petitioners filed a Petition for Writ of

Certiorari in the United States Supreme Court. On March

6, 1989, the Supreme Court vacated the judgment below

4,

1 The individual defendants were sued in both their indi-

vidual and official capacities.

2 The district court’s denial of qualified immunity was

immediately appealable under Mitchell v. Forsyth, 472 U.S. 511,

530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985).

and remanded the case to the Court of Appeals “for

further consideration in light of DeShaney v. Winnebago

County Department of Socia! Services, 489 US. ___ L, 109

S.Ct. 998] (1989).” Smith v. Stoneking, __ US. _, 109

S.Ct. 1333 (1989). On remand, the Court of Appeals again

affirmed the judgment of the district court. Stoneking v.

Bradford Area School District, 882 F.2d 720 (3d Cir. 1989)

(“Stoneking II”).

b. Statement of Facts

The record in this action evidences that Petitioners

tolerated, facilitated and concealed sexual abuse perpe-

trated on students by School District teachers fora period

of time spanning seven years or more. The following

statement of facts summarizes this conduct of Petitioners,

the custom or practice created by this conduct and the

nexus between this conduct and the repeated sexual

assaults suffered by Kathleen Stoneking between 1980

and 1983.

Stoneking’s complaint alleged that the School Dis-

trict, acting through Petitioners, adopted a pernicious

practice, custom or policy of reckless indifference to and

active concealment of instances of known or suspected

sexual abuse of students by teachers; that this practice,

custom or policy created a climate which facilitated and

encouraged sexual abuse of students by teachers in gen-

eral; and that this practice, custom or policy specifically

resulted in repeated sexual assaults upon Stoneking by

the Bradford Area High School band director, Edward

Wright, between 1980 and 1983. The gravamen of Stone-

king’s complaint was that the School District and Peti-

tioners thereby violated her constitutionally protected

interest in bodily security and freedom from physical

abuse. Complaint 9913-16, App. pp. 40-41.

Stoneking’s complaint also alleged that Petitioners

had actual knowledge, during the period she was

molested, that Wright and other teachers had sexually

abused female students, but concealed this information

and discouraged students from pursuing complaints

against Wright and other teachers. Complaint 9411-19,

App. pp. 39-41.

The evidentiary record before the district court

revealed that several incidents of sexual abuse of stu-

dents by teachers, including Wright, occurred both before

and after Wright's initial assault of Stoneking. The record

also revealed that Petitioners, when apprised by students

of specific assaults by Wright and others, reprimanded,

humiliated and intimidated the victims, but took no

action to control the teachers. See Stoneking, 667 FSupp. at

1101, App. pp. 107-110. Petitioners thereby sanctioned

these assaults and tacitly encouraged continued sexual

abuse of students by teachers. Stoneking submits that a

strong affirmative link exists between the Petitioners’

own conduct and the sexual misconduct of Wright and

other teachers.

The evidentiary basis for these contentions was

addressed in some detail by the district court below. The

district court summarized a portion of the evidence with

respect to the School District's policy, practice or custom

as follows:

4

The first incident that purports to support

the inference that the defendants [Petitioners]

had a practice or custom, occurred in late 1977

or early 1978.

According to the deposition testimony of

Theresa Rodgers, she was sexually accosted by

her social studies teacher, Richard DeMarte, in

her senior year. Ms. Rodgers testified that she

immediately reported this incident to Mr. Miller

and Dr. Smith, whereupon she was warned that

it was going to be her word against Mr.

DeMarte’s and that she should not go home and tell

her parents about the assault. Ms. Rodgers further

testified that the principal suggested that she

Stay away from Mr. DeMarte, if at all possible,

and then counselled her that he would take care

of it. Deposition of Theresa Rodgers at 113-14.

Despite Dr. Smith’s assurance that “he

would take care of it,” Theresa Rodgers was

never informed of any action taken against Mr.

DeMarte. Mr. DeMarte’s personnel file main-

tained by the School District conspicuously

lacks any record of disciplinary action taken

against him during the pertinent time. In fact,

Dr. Smith gave Mr. DeMarte a perfect score on

his teaching evaluation, remarkably, an evalua-

tion that included assessment of “emotional sta-

bility,” “social adjustment,” “judgment” and

“habits of conduct.” See Plaintiff's Exhibit 4

filed in Companion Case.

,

Additionally, female students voiced com-

paints against DeMarte in January, 1981; March,

1981; November, 1982; and October, 1985. Dr.

Smith and Mr. Miller had direct notice of all

these complaints. Mr. Shuey was informed of at

least two of the above noted complaints. See

Defendants’ Second Supplemental Brief Submit-

ted in Companion Case at 4. The personnel file

of Mr. DeMarte is silent as to these incidents.

Furthermore, it is not clear what, if any, disci-

— action was taken against the teacher.

ignificantly, Mr. DeMarte is still coaching the

girls’ tennis team.

Stoneking, 667 F.Supp. at 1100, App. pp. 104-105

(emphasis supplied, footnotes omitted).

The next critical series of events demonstrating the

practice or custom of Petitioners and the School District

with respect to sexual abuse of students by teachers was

addressed in detail by both the district court and the

Court of Appeals in Stoneking II. This series of events

involved Wright's sexual assault of Judy Grove Sowers.”

Wright sexually assaulted Sowers on June 16, 1979.

Reviewing Ms. Sowers’ deposition testimony, the Court

of Appeals in Stoneking II recounted Petitioners’ response

to Wright’s assault on her as follows:

According to the deposition testimony of

Judith Grove Sowers, she was sexually assaulted

by Wright in 1979 and reported the incident to

Miller and Smith. She claims that Smith told her

“it was my [Sowers’] fault. That’s why he

wanted to clear up the rumors because he

wanted the band to get back on their feet again

.... He had told me that if the rumors were

true... I could find mysel/ in front of a jury, in

front of a judge, telling exactly what happened,

that being that I had been drinking [and that |

was] at his house voluntarily . . . 1 wouldn’t look

3 This series of events is also summarized in the district

court’s opinion in that related case. Sowers v. Bradford Area

School District, 694 F.Supp. 125 (W.D. Pa. 1988), aff’d without

opinion, 869 F.2d 591 (3d Cir. 1989), vacated sub nom. Smith v

Sowers, No. 88-1350, _-: U.S. __, 109 S.Ct. 1634 (1989), aff'd on

remand, ___ F.2d ___ (3d Cir. 1989).

very good is what he said.” Id. at 1101 n.24

(quoting deposition). Miller brought Wright to

the office, asked Sowers to repeat her allegation

in front of him, and asked Wright if it was true,

which Wright denied. Supp.App. at 7 (Sowers

deposition).

According to the deposition testimony of

Sowers’ father, who requested a conference with

Miller and Sowers about the incident, the defen-

dants attempted to persuade him that no teacher

would behave as his daughter alleged. 667

F.Supp. at 1101 (citing deposition testimony).

Both Sowers and her father testified that she

was presented with the option of recanting her

story in front of the band or withdrawing from

all band activities. Id. Sowers stated that the

band was assembled and she was called before

it for this purpose, but fled from the room in

tears. Id.

Stoneking Il, 882 F.2d at 727, App. pp. 18-19. See also

Stoneking, 667 F.Supp. at 1101, App. pp. 104-105. Both the

Court of Appeals and the district court noted that “it

could be inferred that ‘the “forced apology” served as a

trump card in the hands of Edward Wright,’ who could

threaten his other victims with similar treatment if they

reported his actions .. . ” Stoneking II, 882 F.2d at 728,

App. p. 19 (quoting Stoneking, 667 F.Supp. at 1101-1102).

Stoneking in fact testified that she did not report Wright's

assaults because “I knew about Judy Grove and what

happened.” Stoneking II, 882 F.2d at 728, App. p. 19.

In Stoneking II, the court also considered three other

incidents of abuse, and Petitioners’ response to each.

These incidents took place in 1981-1982 and involved

sexual harassment by Richard DeMarte, the social studies

teacher. The court singled out the following incidents

because Petitioner Smith recorded each, among others, in

his own private handwritten notes. /d.

In 1981, Lori Tsepelis complained to Petitioners Mil-

ler and Smith that DeMarte had kissed her on the back of

the neck several times while she was taking a make-up

test. Stoneking II, 882 F.2d at 728, App. pp. 17-19. Ms.

Tespelis’ parents also complained. Id. DeMarte admitted

one kiss, explaining “that he had kissed her on the cheek

as a thank you for having brought food to him at the

radio station on two occasions in November.” Id. Smith

conceded that when a teacher kisses a student it is gener-

ally a sexual advance, but Smith and Miller merely

arranged that Ms. Tsepelis would, for the remainder of

the semester, pick up her homework from DeMarte via

Miller and that she would not be scheduled for DeMarte’s

class in the future. Although Smith told DeMarte “he had

not used good judgment in having [Ms. Tsepelis] alone in

the room,” he placed no disciplinary report in DeMarte’s

file. Id.

Two months later, two female students reported to

Miller that another student, Lorie Lamberson, was crying

in the restroom and when she emerged she told Smith

and Miller that she had gone to DeMarte’s room with a

friend to get a make-up assignment, that he sent her

friend away, blindfolded her to demonstrate the sense of

touch, and after doing so was down on his hands and

knees looking up her dress. The student was so dis-

traught that she was sent to the nurse’s office and then

told to contact her parents. Id. When she spoke to her

mother, she stated “ ‘that she had a problem like Lori

Tsepelis.’ ” Id. Although Smith testified that he subjec-

tively believed Ms. Tsepelis’ story, his own notes state

that “ ‘before sending [Ms. Lamberson] home | brought

up the fact that she and her mother were aware of the

incident with Mr. DeMarte and Lori Tsepelis prior to

today and hoped that she wasn’t involved in framing Mr.

DeMarte.’ ” Id. (emphasis added). DeMarte admitted the

incident except for the complaint that he had looked up

Ms. Lamberson’s dress. Nonetheless, Smith’s notes con-

tinue, “ ‘I also pointed out that it was her word against

[DeMarte’s] and that Mr—Miller and I would have to

judge from that.’ ” Id. Again, the only action taken was to

_ arrange that the student be scheduled for a different

class, and no reprimand or other note was placed in

DeMarte’s file. /d.

The next year, another parent called to complain

about DeMarte’s relationship with a student because

DeMarte had asked the student to sit on his lap at a

Halloween party on a social occasion, and again no writ-

ten warning was placed in DeMarte’s file. Id.

Based on this record, the Court of Appeals concluded

that the available evidence could support the following

facts and inferences:

that between 1978 and 1982 Smith and Miller

received at least five complaints about sexual

assaults of female students by teachers and staff

members; that Shuey was told about some of

these complaints; that Smith recorded these and

other allegations in a secret file at home rather

than in the teachers’ personnel files, which a

jury could view as active concealment; that the

defendants gave such teachers excellent perfor-

mance evaluations, which a jury could view as

communication by the defendants to the

teachers that the conduct of which they were

accused would not be considered to reflect neg-

atively on them; and that Smith and Miller dis-

couraged and/or intimidated students and

parents from pursuing complaints, on one occa-

sion by forcing a student to publicly recant her

allegation.

Stoneking II, 882 F.2d at 729, App. pp. 20-21.

y%

7

ARGUMENT

a. Summary of Argument

In Stoneking II, the Court of Appeals found it unnec-

essary to determine whether Petitioners had a duty to

protect Respondent from sexual abuse by Edward Wright

because the complaint and record supported an alterna-

tive ground for denying Petitioners’ motion for summary

judgment based on qualified immunity. The Court of

Appeals held that a reasonable jury could conclude from

the evidence adduced in the district court that Petitioners

adopted and maintained practices, customs or policies

that facilitated sexual abuse of students by teachers in

general, and that a causal link existed between Peti-

tioners’ Own actions and the repeated sexual assaults

against Respondent by Wright.

This theory of liability is independent and distinct

from the principles confirmed by this Court in DeShaney

and from the “special relationship” analysis utilized by

the Court of Appeals in Stoneking I. The Court of Appeals

determined that this alternative theory of liability was

clearly established and recognized in the decisions of this

Court, its own decisions, and the decisions of various

other federal courts of appeals prior to the period of time

10

during which Petitioners committed the acts complained

of in Respondent’s complaint. Even Judge Stapleton

agreed in his dissenting opinion that Respondent

“allege[d] an alternative and distinct theory of liability

that is not rejected in DeShaney.”4 882 F.2d at 731.

The Court of Appeals also noted that the situation of

school children, compelled by state law to attend school,

“may not be dissimilar” to other custodial circumstances

that give rise to a governmental duty of protection. 882

F.2d at 723-24 (emphasis supplied). Petitioners contend

that this statement constitutes a “sub silentio holding”

reaffirming that “they had a duty to protect school stu-

dents from harm.” Petition for Writ of Certiorari at p. 11.

However, the Court of Appeals specifically declined “to

4 In his dissent, Judge Stapleton disagreed with the major-

ity regarding whether the record contained sufficient evidence

to defeat Petitioners’ motion for summary judgment with

respect to this alternative theory of liability. In their petition,

Petitioners assert that the “Court of Appeals went on to, in

effect, decide a motion for summary judgment on the merits [of

the alternative theory of liability] that Smith and Miller were

never permitted to argue.” Petition for Writ of Certiorari at p.

13, n.2. This assertion is simply untrue. On remand to the

Court of Appeals, the issue of Petitioners’ facilitation and tacit

encouragement of abuse was thoroughly briefed by counsel for

both parties. In addition to the excerpts from the voluminous

record in this case that Petitioners had previously filed with

the Court of Appeals, on remand, Petitioners submitted an

additional “Supplemental Appendix” in direct response to the

alternative theory of liability argued by Respondent in her

brief. Petitioners’ statement that “the Court of Appeals major-

ity issued its ruling sua sponte” is contradicted by Petitioners’

own submissions to the Court of Appeals.

11

rest [its] decision again on an affirmative duty to pro-

tect . . . students in this situation... ” 882 F.2d at 724.

Thus, the “duty to protect” or “special relationship” the-

ory of liability, which prompted this Court’s remand of

the case for further consideration in light of DeShaney, no

longer provides the basis for the holding of the Court of

Appeals. Any reference in Stoneking II to this theory of

liability is-pure dicta and does not warrant review by the

United States Supreme Court.

The remainder of Petitioners’ arguments are factual

contentions, which similarly do not justify consideration

by this Court. The Court of Appeal correctly concluded

that the record in this case can support all of the factual

findings necessary to sustain personal liability against

Petitioners Smith and Miller for the constitutional depri-

vations sustained by Respondent.

b. The statements made by the Court of Appeals in

dicta do not merit review by the Supreme Court.

The Court of Appeals did not base its decision upon

a “duty to protect” theory of liability. Petitioners concede

this, but nevertheless argue that “[t]he failure of the

Court of Appeals to expressly rule on the DeShaney issue

has the practical effect of denying Smith, Miller and

Shuey’s claim of qualified immunity with respect to the

‘duty to protect’ theory of liability.” Petition for Writ of

Certiorari at p. 12. They further contend that “the trial

court may choose to charge the jury that Smith, Miller and

Shuey had a duty under the Fourteenth Amendment to

protect Stoneking from the harm that allegedly befell

Me A ae

12

Petitioners’ statement regarding the “practical effect”

of Stoneking II is plainly incorrect given the holding of the

Court of Appeals with respect to Shuey:

[W]le must conclude, in light of our prece-

dent, that Stoneking’s claims against Shuey

amount to mere “inaction and insensitivity” on

his part. See [Commonwealth v.] Porter, 659 F.2d

(306,] 337 [(3d Cir. 1981) (in banc), cert. denied,

458 U.S. 1121, 102 S.Ct. 3509, 73 L.Ed.2d 1383

(1982)]. We cannot discern from the record any

affirmative acts by Shuey on which Stoneking

can base a claim of toleration, condonation or

encouragement of sexual harassment by

teachers which occurred in one of the various

schools within his district.

* * *

[W]e will vacate the district court’s order

denying the motion for qualified immunity as to

Shuey in his individual capacity, and remand

with directions that his motion be granted.

Stoneking II, 882 F.2d at 731.

Petitioners’ argument is also premature. They are

complaining about a possible action that the district court

“may” take with respect to an issue that the Court of

Appeals found unnecessary to address. The Supreme

Court has acknowledged on various occasions that it

normally will not review issues not passed on by the

Court of Appeals. City of Canton, Ohio v. Harris, 489 U.S.

__, 109 S.Ct. 1197, 1203, n.5 (1989); Bowen v. American

Hospital Association, 476 U.S. 610, 625, n.11 (1986) (per

Justice Stevens) (quoting Chevron U.S.A., Inc. v. Natural

Resources Defense Counsel, Inc., 467 U.S. 837, 842 (1984).

The logic underlying this policy becomes even more com-

pelling where the judgment of the Court of Appeals rests

13

upon a well-established theory of liability such as that

relied upon by the Court of Appeals in this case.

c. The theory of liability upon which the Court of

Appeals based its judgment in Stoneking II is

unaffected by this Court’s decision in DeShaney v.

Winnebago County Department Of Social Services.

DeShaney arose out of a State’s failure to intervene

and protect a small boy, Joshua DeShaney, who had been

beaten and permanently injured by his father, with whom

he had lived. Joshua DeShaney’s guardian ad litem com-

menced an action in federal court pursuant to 42 U.S.C.

Section 1983 against certain social workers and other

local officials who had received complaints that Joshua

was being abused by his father, but who nonetheless had

not acted to remove the boy from his father’s custody.

The plaintiff claimed that the defendants’ failure to act

had deprived Joshua DeShaney of his liberty in violation

of the Due Process Clause of the Fourteenth Amendment

of the United States Constitution. The Court rejected this

argument, holding that “a state’s failure to protect an

individual against private violence simply does not con-

stitute a violation of the Due Process Clause.” 109 S.Ct. at

1004.

As the Court of Appeals noted, the “principal distinc-

tion” between DeShaney and this case is the status of the

abuser and the abuser’s relationship to the government

body. Stoneking II, 882 F.2d at 724. In DeShaney, “the State

[had] played no part in creating” the danger to Joshua

DeShaney. 109 S.Ct. at 1006. No link existed between the

defendants and the abuse of Joshua. Joshua had suffered

his tragic fate at the hands of his father, “who was in no

14

sense a state actor.” Id. (footnote omitted). However, in

the instant case, the abuser was a state actor whose

assaults upon Respondent were facilitated by the conduct

of his superiors and his status as director of the Bradford

Area High School band.

The second critical distinction between DeShaney and

the instant case is the nature of the conduct of the indi-

vidual defendants in each case. In DeShaney, the defen-

dants were guilty only of passive inaction in the face of

private violence. In contrast, the record supports that

Petitioners actively concealed complaints of abuse per-

petuated by their subordinates upon students and

actively intimidated students who did attempt to com-

plain. See Stoneking II, 882 F.2d at 724-25. As the Court of

Appeals observed, “[nJothing in DeShaney suggests that

state officials may escape liability arising from their poli-

cies maintained in deliberate indifference to actions taken

by their subordinates.” Id. at 725.

d. Petitioners’ contention that the holding of the Court

of Appeals creates a “new theory of personal lia-

bility for school officials” is incorrect and does to

merit Supreme Court review.

Petitioners argue that the Court of Appeals created

“a new theory of personal liability for school officials in

their individual capacities.” Petition for Writ of Certiorari

at pp. 11, 24. This contention is inconsistent with this

Court’s analysis in Kentucky v. Graham, 473 U.S. 159

(1985). In Graham, the Court explained that a “personal-

capacity suit,” in contrast to an “official-capacity suit,”

“seeks to impose personal liability upon a government

official for actions he takes under color of state law.” 473

15

U.S. at 165 (emphasis added, citations omitted). The the-

ory of personal liability urged by Respondent and

adopted by the Court of Appeals in Stoneking II is predi-

cated upon the acts of Petitioners that facilitated, con-

doned and encouraged abuse of students by teachers

under Petitioners’ supervisory authority. As the Court of

Appeals noted, Petitioners “were incontestably acting

under color of state law” with respect to the supervisory

conduct at issue. Stoneking II, 882 F.2d at 724.

“On the merits, to establish personal liability in a

§1983 action, it is enough to show that the official, acting

under color of state law, caused the deprivation of a

federal right.” Graham, 473 U.S. at 166 (emphasis in origi-

nal, citations omitted). Respondent urged, and the Court

of Appeals agreed, that the record is sufficient to support

a finding that the acts of Petitioners caused the depriva-

tion of Respondent’s constitutionally protected rights.

Stoneking II, 882 F.2d at 731. Although Petitioners dis-

agree with this finding, such factual disputes do not

warrant review by the Supreme Court.

Once it is established that the record supports a prima

facie cause of action against government officials in their

personal or individual capacities, the officials may

attempt to raise various defenses, including qualified

immunity, which Petitioners have raised in the instant

case. Graham, 473 U.S. at 166-67. Under the defense of

qualified immunity, government officials “generally are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). “The contours of the right must be sufficiently

16

clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635 (1987). Consistent with this princi-

ple, the United States Court of Appeals for the Third

Circuit requires “some but not precise correspondence”

with applicable precedents, and demands that “officials

apply well-developed legal principles.” People of Three

Mile Island v. Nuclear Regulatory Comm., 747 F.2d 139, 144

(3d Cir. 1984).

In Stoneking II, the Court of Appeals correctly con-

cluded that both the constitutionally protected rights of

Respondent and the corresponding duties of Petitioners

were clearly established prior to and during the period of

time Petitioners committed the acts complained of in

Respondent’s complaint. The liberty interest in freedom

from state intrusions into bodily security is as old as the

Constitution itself. Hall v. Tawney, 621 F.2d 607, 613 (4th

Cir. 1980). The applicability of this interest to public

school children has been recognized at least since 1977,

when this Court held in Ingraham v. Wright, that “corporal

punishment in the public schools implicates a constitu-

tionally protected liberty interest.” 430 U.S. 651, 672

(1977). As the Court of Appeals observed, the individual

right to be free from more egregious intrusions upon

personal security, such as sexual molestation, predates

this Court’s decision in Ingrahain:

Since a teacher’s sexual molestation of a

student could not possibly be deemed an accept-

able practice, as some view teacher-inflicted cor-

= punishment, a student's right to be free

rom such molestation may be viewed as clearly

established even before Ingraham.

17

Stoneking Il, 882 F.2d at 727 (citing Rochin v. California, 342

U.S. 165 (1952) (substantive due process violation occurs

where conduct “shocks the conscious”)).

Similarly, in 1976, this Court recognized that govern-

ment officials charges with supervisory authority could

be held liable under Section 1983 where an “affirmative

link” exists between the supervisors’ own actions and the

misconduct of their subordinates. Rizzo v. Goode, 423 U.S.

362, 371 (1976). The Court of Appeals found that this

basis for liability was well-established at the time

Respondent was assaulted by Wright. Specifically, the

Court of Appeals held that “by at least 1981 . . . it was

clearly established law that [supervisory] officials may

not with impunity maintain a custom, practice or usage

that communicated condonation or authorization of

assaultive behavior.” 882 F.2d at 730. The Court of

Appeals based this conclusion upon multiple federal

cases, including this Court’s decision in Rizzo v. Goode

and two of its own cases decided in 1981. Stoneking II, 882

F.2d at 729-730 (citing Commonwealth v. Porter, 659 F.2d

306, 309 (3d Cir. 1981) (en banc), cert. denied, 458 U.S. 1121

(1982); Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert.

denied, 455 U.S. 1008 (1982)). The Court of Appeals noted

that its “holdings [in Porter and Black] were consistent

with those reached earlier by other federal courts of

appeals. Id. at 730 (citing McClelland v. Facteau, 610 F.2d

693, 697-98 (10th Cir. 1979) (police chiefs may be held

liable for failure to correct misconduct of which they have

notice); Sims v. Adams, 537 F.2d 829, 832 (5th Cir. 1976)

(complaint stated cause of action against mayor and chief

of police for failure to control police officer's propensity

for violence); Turpin v. Mailet, 579 F.2d 152, 167-68 (2d Cir.

18

1978) (en banc) (city could be liable under the Fourteenth

Amendment for encouraging animosity among police

officers against plaintiff which led them to believe that

they could violate his civil rights with impunity), vacated

in light of Monell, 439 U.S. 974 (1978), reinstated, 591 F.2d

426 (2d Cir. 1979) (per curiam) (case reinstated on same

theory but under §1983 in light of Monell); judgment for

plaintiff reversed, Turpin v. Mailet, 619 F.2d 196, 202 (2d

Cir.) (plaintiff failed to prove official policy where “there

was no evidence of a prior pattern or practice of harass-

ment”), cert. denied, 449 U.S. 1016 (1980)).

Petitioners argue that the court’s holding in Stoneking

Il represents an expansion of the theory of liability recon-

firmed by this Court in City of Canton v. Harris, 489 U.S.

__, 109 S.Ct. 1197 (1989). Although the Court of Appeals

noted that its analysis was consistent with City of Canton,

its denial of qualified immunity to Petitioners was based

exclusively on the state of the law as it existed when

Respondent was being abused by Wright. The Court of

Appeals merely recognized that Respondent's theory of

liability against the School District and Petitioners in

their official capacities will not be determined according

to the law as it existed in 1981, but as it exists today,

including the principles reconfirmed in City of Canton. See

also Bordanaro v. McLeod, 871 F.2d 1151 (1st.Cir.) (liability

against police chief and mayor for unauthorized actions

of police officers forcing entry into bar and beating

patrons based on the police officials’ constructive knowl-

edge of custom and deficient policies in recruitment and

training), cert. denied sub nom., Everett v. Bordanaro, __

U.S. __ , 110 S.Ct. 75 (1989).

ae

19

CONCLUSION

WHEREFORE, Respondent prays that this Honorable

Court deny the Petition for Writ of Certiorari.

Respectfully submitted,

Pecora Duxe & Bascox Knox McLaucHuin Gorna

Desorau H. Bascox & Sennett, P.C.

222 West Washington St. Wattace J. KNox

P.O. Box 548 SEAN J. McLauctitin

Bradford, PA 16701 Ricuarp A. LANziLLo

(814) 362-3896 Attorneys for Respondent,

Kathleen Stoneking

120 West Tenth Street

Erie, Pennsylvania 16501

(814) 459-2800