Petition for Writ of Certiorari — Lankford v. Doe
Supreme Court brief1994
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OME TE TE Gina
In The
Supreme Court of the United States
ie
October Term, 1993
EDDY LANKFORD,
Petitioner,
vs.
JANE DOE,
Respondent.
Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
DAVID M. FELDMAN
Counsel of Record
FELDMAN & ASSOCIATES
Attorneys for Petitioner
Twelve Greenway Plaza
Suite 1202
Houston, Texas 77046
(713) 960-6000
Le te (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21
QUESTIONS PRESENTED FOR REVIEW
I. Whether a public employee may be deemed to be acting
“under color of state law” for purposes of 42 U.S.C. § 1983 when
the alleged constitutional violation in question involves
misconduct (here, physical sexual abuse of a student by a teacher)
which is entirely outside the grant of any authority by the state and
beyond the course and scope of the individual’s employment.
II. Whether a supervisory official (here, a school principal)
may be held liable under 42 U.S.C. § 1983 for the unconstitutional
acts of a subordinate on the basis of mere inaction, and in the
absence of any affirmative conduct, condonation or authorization
on the part of the official.
III. Whether a supervisory official may be held liable under
42 U.S.C. § 1983 for the unconstitutional acts of a subordinate,
based upon a “deliberate indifference” standard, in the absence of
actual knowledge on the part of the official that any such
constitutional violations had previously occurred.
IV. Whether a constitutional right or basis for liability may be
deemed “clearly established” for purposes of denying qualified
immunity under 42 U.S.C. § 1983 when there was no authority on
point at the time the cause of action arose.
NOTE: Petitioner reserves the right to argue Question V in the
event that certiorari is granted on any of the questions above, but
does not include Question V among the reasons for the grant of
certiorari.
V. Whether Petitioner was entitled to summary judgment on
the grounds of qualified immunity, in this case.
ii
PARTIES TO THE PROCEEDINGS
Petitioner, Eddy Lankford, is one of the defendants in the
underlying civil rights litigation pending in the United States
District Court for the Western District of Texas, Austin Division,
and was one of the appellants in the Fifth Circuit appeal from which
this Petition for Writ of Certiorari arises.
Respondent, Jane Doe, is the plaintiff in the underlying
litigation and was the appellee in the Fifth Circuit appeal from
which this Petition for Writ of Certiorari arises.
Parties to the Proceedings Below:
(1) Jane Doe, Plaintiff
(2) Lynn Stroud, Defendant
(3) Taylor Independent School District, Defendant
(4) Mike Caplinger, Defendant
(5) Eddy Lankford, Defendant
Amici Curae in the Proceedings Below:
(1) National School Boards Association
(2) Texas Association of School Boards
iii
TABLE OF CONTENTS
Questions Presented forReview ..............05055.
Partiestothe Proceedings ..............+0055: tba éa
ra decd ceededdadetedudectiatbbede
ee ede datewdedees
|) EP PPPerereerereree eee
ee woapescadbettedeten
Statutes and Constitutional Provisions Involved .......
rr scuerereuceerresss
Reasons for Granting the Writ ................-0005:
I.
The Fifth Circuit’s En Banc Decision That A
Public Employee Can Be Acting “Under Color Of
State Law” For Purposes Of 42 U.S.C. § 1983 Even
When His Allegedly Unconstitutional Conduct Is
Outside The Grant Of Any Authority By The State
And Beyond The Course And Scope Of His
Employment, Conflicts With Decisions Of This
Court And The Decision Of The Tenth Circuit In
D.T. by M.T. v. Independent School District No.
ite eens osebeee-es veneeeecs
The Fifth Circuit’s En Banc Decision That A
Supervisory Official May Be Held Liable Under
Page
iv
Contents
Page
42 U.S.C. § 1983 For The Unconstitutional Acts Of
A Subordinate On The Basis Of Mere Inaction, And
In The Absence Of Any Affirmative Conduct,
Condonation Or Authorization On the Part Of The
Official, Conflicts With Decisions Of This Court
ARG. 8k 0 Bis debs ab be wbcSbedvis 15
Ill. The Fifth Circuit’s En Banc Decision That A
Supervisory Official May Be Held Liable Under 42
U.S.C. § 1983 For The Unconstitutional Acts Of A
Subordinate, Based Upon A _ Deliberate
Indifference Standard, In The Absence Of Actual
Knowledge On The Part Of The Official That Any
Such Constitutional Violations Had Previously
Occurred, Conflicts With The Eighth Circuit's
Decision in Jane Doe A. v. Special School District
ES 5k ka bn cdeacathbsssarescs 19
IV. The Fifth Circuit’s En Banc Decision That The
Constitutional Right And Basis For Supervisory
Liability Found Were “Clearly Established” For
Purposes Of Denying Qualified Immunity Under
42 U.S.C. § 1983, When There Was No Authority
On Point At The Time The Cause Of Action Arose,
Conflicts With Decisions Of This Court And Other
Ra ty BIE aR FE iy 22
GONE ko as G's ns 0 co adnan 6eae bi. 28
Vv
Contents
Page
TABLE OF CITATIONS
Cases Cited:
Barney v. City of New York, 193 U.S.430(1904) ........ 11
Barts v. Joyner, 865 F.2d 1187 (11th Cir.), cert. denied, 493
WEEE 6 oF Chase ceeasdeccvisebadacears 25
City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ..... 26
Clark v. Armontrout, __ F.3d __, 1194 W.L. 29736 (8th Cir.,
PERE di catbescccecsnadsentadnaeekasae 21
Colaizzi v. Walker, 812 F.2d 304 (7th Cir. 1987) ........ 25
Collins v. City of Harker Heights, 112 S.Ct. 1061 (1992) . 9
Cook v. City of Price, Carbon Cty., Utah, 566 F.2d 699
SG SEE pics acvehabscacssaaesaebear cand 17
D.T. by M.T. v. Independent School District No. 16, 894
F.2d 1176 (10th Cir.), cert. denied, 498 U.S. 879 (1990)
SARAUESEROPOAESEORES HASSE bea TEA GRD CEOS. 9,10, 13,14
Daniels v. Williams, 474 U.S. 327 (1986) ............. 19
DeShaney v. Winnebago County Department of Social
SOPvECER, GF Uae BEATE) nc ccncccccccccvcce 15,21, 26
Doe v. Taylor Independent Sch. Dist., 975 F.2d 137 (SthCir.
1992), cert. denied sub nom., Caplinger v.
Me ee rer reer 5,6
vi
Contents
Page
Farmer v. Brennan, 11 F.3d 668 (7th Cir. 1992), cert.
granted, __U.S.__,114S. Ct. 56(1994) ............ 21
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............ 22,25
Home Tel. & Tel.Co. v. City of Los Angeles, 227 U.S. 278
CEDEED ocvccncececccuntoccbe6cdésetesunensaue 10
Jane Doe A. v. Speciai School District of St. Louis County,
901 F.2d 642 (Sth Cir. 1990) ... cc ccccccccces 19,20, 21,22
Jefferson v. Ysleta Independent School District, 817 F.2d
DODGE BOSED ecb si dcvdvovutidvecbaesseecnsn 23,24
King v. Fairman, 997 F.2d 259 (7th Cir. 1993) .......... 21
Lenard v. Argents, 699 F.2d 874 (7th Cir.), cert. denied,
GOS ae SEL ee nabs 06 pa deenkkesétsaseitenns 17
Lopez v. Houston Independent School District, 817 F.2d
SSE GG CED . ncddeedisdanddcadeesesedancs 23,24
Lugar v. Edmundson Oil Co.,457 U.S.922(1982) ..9, 10,11, 14,15
Monroe v. Pape, 365 U.S. 167 (1961), rev'd on other
grounds sub nom., Monell v. Dept. of Social Serv. of
City af. 2,.45B VB. GSS CSTE) ccccccccccsicceses 10
Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988), cert. denied,
GEO Be CHD oanndbadeccsentenanetucouns 17
vil
Contents
Page
Redmond v. County of San Diego, 942 F.2d 1345 (9th Cir.
1991), cert. denied, __U.S.__, 112S.Ct. 972 (1992) .... 21
Reimer v. Smith, 663 F.2d 1316 (SthCir. 1981) ......--- 17
Rizzo v. Goode, 423 U.S. 362 (1976) .....---+++5: 9,15, 16,17
Screws v. United States, 325 U.S.91 (1945) .....-++++- 10,13
Snowden v. Hughes, 321 U.S. 1(1944) ...----eeeeeeee 11
Stoneking v. Bradford Area Sch. District, 856 F.2d 594 (3rd
Cir. 1988), vacated sub nom., Smith v. Stoneking, 489
BES BED ok pocdbdcccnvaseneeddsgsssonden ss 26
Stoneking v. Bradford Area Sch. District, 882 F.2d 720 (3rd
Cir. 1989), cert. denied sub nom., Smith v. Stoneking,
493 U.S. 1044(1990) .. 2.6... cece eee e weer ee eeee 17,18
Turpin v. Mailet, 619 F.2d 196 (2d Cir. 1980), cert. denied
sub nom., Turpin v. City of New Haven, 449 U.S. 1016
(19BO) ...cccccccccccccccccccccccccccccseccees 17
United States v. Classic, 313 U.S. 299 (1945) ......---- 10
United States v. Raines, 362 U.S. 17 (1960) .....------- 10
Von Drehle v. Houston Indep. Sch. Dist., No. H-88-539
(S.D. Tex. Nov. 21,1989) .....------eeee eer eereee 27
Wanger v. Bonner, 621 F.2d 675 (Sth Cir. 1980) ......... 18
Watson v. Canton, 984 F.2d 537 (Ist Cir. 1993) ......--- 2
viii
Contents
Page
Wilson v. City of N. Little Rock, 801 F.2d 316 (8th Cir. 1986)
100e0sb dn bedsbden ssn ben eaeeesenndenscetess 17,21
Young v. Quinlan, 960 F.2d 351 (3rd Cir. 1992) ......... 21
Statutes Cited:
BO Us BUA P OGRE. BGEED cc ccccscccccecccescces 2
i ed oe caaewehe passim
Title IX of the Educational Amendments of 1972, 20
i ED poteucondrbonncccceccsciwas +
United States Constitution Cited:
PONE cdc acccnssscctacdancdadntel 5, 11, 16
Fourteenth Amendment, §1 .............ccccccceees 3
Rules Cited:
Supreme Court Rule 10.1(a) &(c) ............00000ee +
ix
Contents
APPENDIX
Appendix A — Decision of the United States Court of
Appeals for the Fifth Circuit Dated March 3,1994....
Appendix B — Judgment on Rehearing En Banc of the
United States Court of Appeals for the Fifth Circuit
Filed March 3, 1994 .........c cece eee ee re eeceee
Appendix C — Memorandum Opinion of the United States
District Court for the Western District of Texas, Austin
Division Entered August 22,1991 ........---++++++-
Appendix D — Final Judgment and Order in Von Duehle, et
al. v. Houston Independent School District, et al. Filed
November 27,1989 ........-eceeeeeeeeeeeceeees
Page
la
106a
108a
— rie Tete
|
No.
In The
Supreme Court of the United States
>
October Term, 1993
EDDY LANKFORD,
Petitioner,
VS.
JANE DOE,
Respondent.
Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
Petitioner Eddy Lankford (“Lankford”) respectfully prays
that a writ of certiorari issue to review the en banc judgment and
opinion of the United States Court of Appeals for the Fifth Circuit
entered March 3, 1994, affirming the denial of Petitioner’s Motion
for Summary Judgment on qualified immunity grounds by the
United States District Court for the Western District of Texas.
OPINION BELOW
The en banc Opinion of the Fifth Circuit Court of Appeals,
2
affirming the denial of Petitioner’s Motion for Summary
Judgment, is reported at 15 F.3d 443 (Sth Cir. 1994) and is
reprinted as Appendix A hereto.' The Judgment of the Circuit
Court is reprinted as Appendix B hereto. The Opinion of the
District Court for the Western District of Texas is unreported and is
reprinted as Appendix C hereto.
STATEMENT OF JURISDICTION
This Petition for Writ of Certiorari seeks review of the March
3, 1994 en banc decision of the Fifth Circuit Court of Appeals
wherein the court affirmed the denial of Petitioner’s Motion for
Summary Judgment on qualified immunity grounds. Jurisdiction
over this petition is conferred by 28 U.S.C. § 1254.
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
42 U.S.C. § 1983:
Every person who under color of any statute,
ordinance, regulation, 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 proceeding forredress....
1. The Fifth Circuit’s panel decision, which was vacated by the court en
banc, is reported at 975 F.2d 137 (Sth Cir. 1992).
oh AN Whee eal
3
U.S. Const. amend. XIV § 1:
__. No state shall make or enforce any law
which shall abridge the privileges oF
immunities of citizens of the United States; nor
shall any state deprive any person of life,
liberty, or property, without due process of law;
nor deny to any person within its jurisdiction
the equal protection of the laws.
STATEMENT OF THE CASE
This case arises out of an unfortunate set of circumstances
involving inappropriate sexual conduct between a public school
teacher, Lynn Stroud (“Stroud”), and one of his students,
Respondent Jane Doe. The relationship between Stroud and
Respondent began in the fall semester of the 1986-87 school year,
when Respondent was a ninth grade student at Taylor High School,
in the Taylor Independent School District (the “School District’).
The relatior ship was, at first, a flirtatious one, but with increasing
pressure froz Stroud it turned sexual, with the first incident of
sexual intercourse taking place in Stroud’s home in March or April,
1987, when Respondent was fifteen years of age. Thereafter, a
series of sexual encounters occurred through the summer months
and into the fall semester of the 1987-88 school year, in Stroud’s
home, in the school fieldhouse at night or on weekends, and on
deserted country roads during the middle of the night.
During the spring of 1987, in response to rumors and
complaints from others about a suspected relationship between
Respondent and Stroud, Petitioner Lankford, Principal of Taylor
High School, met with the Stroud on two occasions to discuss the
matter. Each time Stroud strongly denied any form of misconduct.
Then, in the summer of 1987, Respondent’s parents presented
school officials with two endearing notes from Stroud to
Respondent that they had found in the:r daughter’s possession. At
4
that time, Mike Caplinger, the Superintendent of Schools, and
Lankford interrogated Stroud at length, and he again adamantly
denied the existence of a physical or otherwise inappropriate
relationship between himself and Respondent. Likewise,
Respondent was interviewed by Superintendent Caplinger, and she
denied the existence of any such relationship with equal vigor,
despite Caplinger’s assurances that he would do everything he
could to assist her, including going to the police, if Stroud was
harming her in anyway. Faced with such denials from the parties
themselves, Caplinger concluded that he did not have sufficient
evidence to bring Stroud before the school board for a discharge
hearing. Instead, he warned Stroud not to communicate with
Respondent in any way, and that he would be discharged if there
was any form of inappropriate relationship between the two.
Thereafter, in the fall of 1987, Respondent’s parents found
additional correspondence from Stroud in her possession and,
through a family attorney, Respondent came forward and revealed
her true relationship with Stroud for the first time. Simultaneously,
another student complained to school officials that Stroud had
made unwelcome sexual advances towards her. Stroud was then
suspended by Superintendent Caplinger, resigned, and pled guilty
to criminal charges arising from his relationship with Respondent.
Respondent subsequently filed suit against the School
District, Stroud, Caplinger, and Lankford in state district court,
which was removed to federal court. As amended, Respondent’s
complaint alleged a claim against all of the Defendants under 42
U.S.C. § 1983; aclaim against the School District only under Title
IX of the Education Amendments of 1972, 20 U.S.C. § 1681; and
pendent state law claims against Stroud only. In her Section 1983
claim, Respondent alleged that all of the Defendants “deprived
Plaintiff of her right to be free from bodily harm and sexual abuse
in violation of the due process and equal protection clauses of the
Fourteenth Amendment.” In addition, Respondent distinguished
between the conduct of Defendants by alleging that:
Pe SEN IIA A Selly dl wy ARTA sed ind BRA onc N orga sth AR ha ARES,
5
34. Defendant Stroud acted intentionally,
willfully, knowingly and purposefully, with the
specific intent of depriving Plaintiff of her
Fourteenth Amendment rights.
35. Defendants Lankford, Caplinger, and
Taylor ISD were grossly negligent in their
supervision of Defendant Stroud and in their
failure to seriously investigate, monitor, or
otherwise respond to allegations of
wrongdoing by Defendant Stroud when these
Defendants had actual and/or constructive
knowledge of Stroud’s behavior
Record on Appeal, Volume II, p. 583.
Lankford and Caplinger, having been sued in both their
individual and official capacities, moved for summary judgment
on the basis of their qualified immunity from suit. In their motion,
the principal and superintendent argued that they were entitled to
qualified immunity as to Respondent’s Section 1983 claims since
Respondent was not deprived of any clearly established
constitutional right and that, in any event, their conduct was
objectively reasonable under the circumstances.
The district court rejected Lankford and Caplinger’s
arguments and denied their motion for summary judgment. See
Appendix C. Lankford and Caplinger then appealed the denial of
their motion to the Fifth Circuit Court of Appeals. In its panel
opinion, the Fifth Circuit affirmed the district court’s decision and
remanded the case for trial on the merits. Doe v. Taylor Indep. Sch.
Dist., 975 F.2d 137 (Sth Cir. 1992). The panel held that public
school students — like Respondent — enjoy a “firmly established
constitutional right under the due process and equal protection
clauses of the Fourteenth Amendment to be free from sexual
6
molestation by a state-employed school teacher.” /d. at 138. In
addition, the panel held that Caplinger and Lankford “had an
affirmative, constitutionally-based duty to protect [Respondent]
from such an intrusion into her bodily integrity,” arising from the
Texas compulsory school attendance law. /d.
Caplinger and Lankford then filed a Petition for Writ of
Certiorari with this Court seeking review of the panel opinion,
which was denied. Caplinger v. Doe, __U.S.__, 113 S. Ct. 1066
(1993). Following the denial of writ, but prior to the issuance of
mandate to the District Court, the Fifth Circuit, on its own motion,
ordered that the case be reheard en banc, thereby vacating the panel
opinion. Doe v. Taylor Indep. Sch. Dist, 987 F.2d 231 (Sth Cir.
1993). The case was reargued before the Fifth Circuit, en banc, on
May 24, 1993, and the opinion which is the subject of this Petition
for Writ of Certiorari followed. See Appendix A, la.
In an 8-6 decision, a majority of the Fifth Circuit held first,
that schoolchildren have a Fourteenth Amendment liberty interest
to be free from physical sexual abuse by school employees. App.
A, 2a. Next, while facially rejecting the notion that school officials
have an affirmative constitutional duty to protect schoolchildren
from such abuse, as the panel held, the majority nevertheless
concluded that school officials “can be held liabie for supervisory
failures that result in the molestation of a schoolchild if those
failures manifest a deliberate indifference to the constitutional
rights of that child.” App. A, 2a. The majority then adopted the
following three-part test to determine whether a supervisory
school official, by action or inaction, can be held personally liable
under 42 U.S.C. § 1983 for physical sexual abuse of a student by a
subordinate:
(1) the defendant learned of facts or a pattern
of inappropriate sexual behavior by a
subordinate pointing plainly toward the
ee eee
a .
eee
;
:
3
7
conclusion that the subordinate was sexually
abusing the student;
(2) the defendant demonstrated deliberate
indifference toward the constitutional rights of
the student by failing to take action that was
obviously necessary to prevent or stop the
abuse; and
(3) such failure caused a constitutional injury
to the student.
App. A, 23a.
Turning to the issue of qualified immunity, the majority
concluded that both the constitutional right of public school
students to be free from physical sexual abuse by a school
employee, and the corresponding duty of supervisory officials to
not act with deliberate indifference towards that right, were clearly
established in 1987, at the time Respondent's cause of action arose.
App. A, 23a-27a. Applying its three-part test to the summary
judgment evidence, the majority then determined that
Superintendent Caplinger was entitled to summary judgment,
thereby reversing the District Court judgment as to Caplinger.
App. A, 33a. The majority distinguished Lankford’s fact situation
from Caplinger’s, however, and affirmed the denial of summary
judgment for the principal. According to the majority, Lankford
knew more and did less, thus creating fact issues which precluded
summary disposition. App. A, 27a-31a.
Significantly, the six dissenters (concurring in part, and
dissenting in part) agreed with the majority that Caplinger was
entitled to summary judgment — but for different reasons. App. A,
49a-72a (J. Garwood, dissenting); 73a-83a (J. Jones dissenting);
and 84a-105a (J. Garza, dissenting). In the dissenters’ view, both
school officials were entitled to summary judgment because: (1)
8
even if Respondent had a constitutional right to be free from
physical sexual abuse by Stroud, he was not acting under color of
state law at the time of his misconduct, thereby failing to trigger
any Section 1983 liability on the part of the school officials; (2) the
majority’s three-part test for supervisory liability is fatally flawed
in that it would affix liability on the basis of mere inaction by a
supervisory official, without any actual knowledge of
unconstitutional acts being committed by the subordinate; and (3)
neither the constitutional right nor basis for supervisory liability
articulated by the majority were clearly established.
REASONS FOR GRANTING THE WRIT
The Fifth Circuit’s panel opinion in Doe v. Taylor Independent
School District was a significant catalyst in the explosion of sexual
abuse litigation that has been brought against public schools and
school officials throughout the country. By taking the unusual step
of granting rehearing en banc, sua sponte, following this Court’s
denial of writ as to the panel opinion, the circuit court evidenced its
understanding of the important issues raised, and sought to
articulate, in as detailed and reasoned a manner as possible, the
contours of liability that it believed should exist. In so doing,
however, the court blazed still newer trails of even broader
constitutional dimensions, that transcend the area of sexual abuse
of students.
Indeed, the majority’s view of the “color of law” requirement
under Section 1983, the basis of a supervisory official’s liability
for unconstitutional acts of a subordinate, and the circumstances
under which a right or duty mdy be deemed “clearly established”
for qualified immunity purposes, has broad ranging implications,
not simply for public school officials, but for public officials of
every stripe. As summarized below, and as the six dissenters in
three separate dissenting opinions recognized, “special and
important reasons” exist for a grant of writ of certiorari in this case
em ie tt alee:
ik Leh PRE nd ITS ibe
Sina bl Deal ate RE ee ARC BILD ty So
9
under Rules 10.1(a) and (c) of the Supreme Court Rules. Perhaps
Judge Jones stated it best: “[i]f Doe has a viable constitutional
claim, I say, let the Supreme Court say so.”? App. A, 83a (J. Jones,
dissenting). Doe v. Taylor Independent School District is now
clearly ripe for this Court’s review.
I.
THE FIFTH CIRCUIT’S EN BANC DECISION THAT A
PUBLIC EMPLOYEE CAN BE ACTING “UNDER COLOR
OF STATE LAW” FOR PURPOSES OF 42 U.S.C. § 1983
EVEN WHEN HIS ALLEGEDLY UNCONSTITUTIONAL
CONDUCT IS OUTSIDE THE GRANT OF ANY
AUTHORITY BY THE STATE AND BEYOND THE
COURSE AND SCOPE OF HIS EMPLOYMENT,
CONFLICTS WITH DECISIONS OF THIS COURT AND
THE DECISION OF THE TENTH CIRCUIT IN D.T. BY M.T.
v. INDEPENDENT SCHOOL DISTRICT NO. 16.
Assuming arguendo that in 1987 it was clearly established
that school children had a liberty interest protecting them from
physical sexual abuse by a school employee, see Section IV, pp.
22-27, infra, before Lankford can be held liable for an alleged
failure to supervise Stroud, it must be shown that Stroud’s sexual
abuse of Respondent was done “under color of state law.” Collins v.
City of Harker Heights, 112 S. Ct. 1061, 1066 (1992). For the
“color of law” requirement to be met, Stroud’s actions must have
been “fairly attributable to the state.” Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982).
The majority concluded that Stroud’s physical sexual abuse
2. And see, App. A, 72a n. 24 (J. Garwood, dissenting) (“The majority has
no power to overrule Rizzo, that right being reserved to the Supreme Court”).
10
of Respondent, which occurred outside of school hours or any
school related activity, was nevertheless done under color of state
law because the relationship between the teacher and the student
had its genesis in the school environment. App. A, 17an.4. The
majority’s analysis is in conflict with this Court’s decisions
outlining the parameters of state action,’ as well as the decision of
the Tenth Circuit in D.T. by M.T. v. Independent School District No.
16, 894 F.2d 1176 (10th Cir.), cert. denied, 498 U.S. 879 (1990).
It is fundamentai that in order for a public employee to engage
in state action, he must be acting under some form of state granted
authority.* Thus, while state action may occur where an official
acts pursuant to authority but exceeds it, the same is not true where
3. “[I)n a Section 1983 action brought against a state official, the statutory
requirement of action ‘under color of state law’ and the ‘state action’
requirement of the Fourteenth Amendment are identical.” Lugar v. Edmondson
Oil Co., 457 U.S. 922 (1982).
4. See Monroe v. Pape, 365 U.S. 167, 187 (1961), rev'd on other grounds
sub nom., Monell v. Dept. of Social Serv. of City of N.Y., 436 U.S. 658 (1978)
(holding that police officers acted under color of state law by abusing authority
granted them by the state to effect searches and seizures); United States v.
Raines, 362 U.S. 17, 24-25 (1960) (holding that Georgia County Board of
Registrar's discrimination against African-American who sought to vote
constituted state action because discrimination occurred within the course of
their official duties); Screws v. United States, 325 U.S. 91, 107-08 (1945)
(holding that Georgia sheriff, policeman, and special deputy acted under color of
state law when they abused arrest power to beat young African-American to
death); United States v. Classic, 313 U.S. 299, 326 (1945) (holding that election
officials, who were required by state law to count baliots, record ballot count,
and certify election results, acted under color of state law when they misused
such authority to alter and falsely count ballots in federal primary election);
Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 294 (1913) (holding
that City of Los Angeles, operating under authority of municipal ordinance,
acted under color of state law when it set rates for telephone services at
confiscatory levels).
11
no authority exists and the misconduct is expressly forbidden.*
According to the majority, Stroud’s authority for state action
purposes emanated from his position as a public school teacher.
App. A, 17an. 4; see also 40a-41a (J. Higginbotham, dissenting).
As Judge Garza noted, however:
... [T]he state, by authorizing Stroud to teach
students, did not give him the authority to
violate state criminal law by sexually abusing
his students. Accordingly, it is only in the sense
that Stroud had no grant of authority to
sexually abuse Doe that one can suggest or
argue that Stroud misused or abused his
position as a teacher. Consequently, Stroud,
bent upon violating state criminal law, did not
act under color of state law when doing so.
App. A, 101a-102a (J. Garza, dissenting).°
5. See Lugar, 457 U.S. at 940 (holding that the plaintiff had not stated a
cause of action under § 1983 because “the conduct of which [plaintiff]
complained could not be ascribed to any governmental decision; rather
[defendants] were acting contrary to the relevant policy articulated by the
state”... and did not “have the weight of the state behind their private
decision . . . .”); Barney v. City of New York, 193 U.S. 430 (1904) (holding that
tunnel construction was not state action within intent and meaning of the 14th
Amendment when the same was not only not authorized but forbidden by state
legislation); Snowden v. Hughes, 321 U.S. 1 (1944) (J. Frankfurter, concurring)
(Illinois Primary Canvassing Board's refusal to file certificate listing plaintiff as
candidate for seat in state assembly did not constitute state action where such
inaction violated state law).
6. As Judge Garza further reasoned:
The fatal flaw in the majority's analysis can be shown
with one hypothetical: assume that a teacher shoots a
student for not turning in his or her homework.
(Cont'd)
12
Assuming arguendo, that a school teacher could ever be
acting under color of law when sexually abusing a student,
reasonable parameters must still exist to bring such conduct within
the fold of state action. Logically, a teacher could be said to be
acting under color of law if the sexual abuse occurs during school
time or in connection with a school sponsored activity, or if sexual
conduct is solicited as the quid pro quo for more favorable
academic treatment. Under the majority’s analysis, however, if the
relationship commences as that of teacher-student, the misconduct
that follows is, ipso facto, state action — a result which would
effectively undermine the color of law requirement of Section
1983 and hold public school officials responsible for the private
lives of school employees and students, all day, every day, year
round.’
(Cont'd)
Following the majority's approach, there exists a “real
nexus” between the activity out of which the violation—
i.e., the shooting—occurred and the teacher's duties and
obligations as a teacher. Thus, the teacher acted under
color of state law, and the student may bring a § 1983
action. Consequently, the majority essentially raises to
the level of a constitutional violation all torts committed
by teachers against students.
App. A, 102an. 23 (J. Garza, dissenting).
7. The physical sexual abuse principally relied on by the
majority here is the sexual intercourse, and this not only
was all consensual, but also took place clearly outside of
school hours and not as even a purported part of any
school activity. The same is true of the “sexually
fondling” or “heavy petting and undressing.” None of
any of this could be said to even colorably be within the
course or scope of Stroud’s employment. Nor was Doe’s
participation in this sexual activity some sort of “quid
pro quo” for scholastic or other official favors from
Stroud ....
App. A, 54a - 55a (J. Garwood, dissenting).
Pe a Ss Te ee ee
13
The Fifth Circuit’s holding is in conflict with the only circuit
that has sought to stake out reasonable “color of law” parameters in
a case such as this. In D.T. by M.T. v. Independent School District
No. i6, the Tenth Circuit rejected the civil rights claims of three
male elementary school students who alleged that they had been
sexually molested by their fifth grade teacher/coach over summer
vacation while participating in fund-raising activities for a summer
basketball camp. The Tenth Circuit expressly rejected an argument
advanced by the students that the alleged constitutional
deprivations were “fairly attributable” to the school district
because of the “cloak of authority” held by a teacher:
If the “extra-curricular” activity had a real
“nexus” to the duties and obligations owing by
[the teacher] to [the] School District, we would
agree with plaintiffs. However, such is simply
not the case. Here, the plaintiffs voluntarily
participated with [the teacher] in basketball
camp fundraising activities which were not
related to school activities and thus, not
undertaken under color of state law.
Id. at 1188.
Significantly, the Tenth Circuit reached this conclusion
despite the fact that the prior teacher-student relationship that
existed was undeniably a causative factor in the teacher’s ability to
molest the students.* The court reasoned as follows:
Acts of a state officer in the ambit of his
personal pursuits are not acts under color of
state law. Screws v. United States, 325 U.S. 91
8. See discussion of undisputed evidence in D.T. by M.T., 894 F.2d at 1182-
84; see also App. A, 52an. 4 and 55a-56a n. 9 (J. Garwood, dissenting).
14
(1945). A state, its agencies or officials may
not be assessed liability for the acts of a private
individual, except by a fair attribution of those
actions to the state. Lugar v. Edmondson Oil
Co., 457 U.S. 922, 936-37 (1987). It is
uncontested in our case that on June 13-14,
1984, [the teacher] was under no obligation to
the school district. He was then on his free or
summer “vacation.” As such, he had no duties
or obligations owing to or functions to perform
for the school district.
D.T. by M.T., 894 F.2d at 1186.
In its attempt to distinguish D.T. by M.T., the majority relied
on facts supporting its conclusion that Stroud exploited his
position as a teacher, but failed to subject the Tenth Circuit case to
the same analysis. Instead, it summarily dismissed D.T. by M.T.,
noting that the school in that case made it clear to the teacher who
committed the abuse that the fundraising activity during which the
abuse occurred was not a school program, but a community
volunteer effort. App. A, 17an. 4. If both cases are subjected to the
same analysis, however, their holdings are irreconcilable.’ As
already noted, Stroud’s physical sexual abuse of Respondent,
which formed the basis of the substantive due process violation
found by the majority, did not occur in connection with any school
activity, extra-curricular or otherwise. While Stroud’s initial
advances towards Respondent may have been under color of law, it
cannot be said his subsequent acts of depravity were so clothed. To
hold otherwise, would be to render the most base, private acts of
any public employee towards another “fairly attributable to the
9. The facts in D.T. by M.T. are as egregious as those found here, if not
more so. See D.T. by M.T., 894 F.2d at 1178-84. Acareful review of the facts in
D.T. by M.T. would show that if the Tenth Circuit was confronted with the cause
of action here, Petitioner Lankford would be granted summary judgment.
15
state” when the only linkage is the employee’s prior, “official”
relationship with his victim. See Lugar, 457 U.S. at 936-37.
Clearly the Constitution requires more.
II.
THE FIFTH CIRCUIT’S EN BANC DECISION THAT A
SUPERVISORY OFFICIAL MAY BE HELD LIABLE
UNDER 42 U.S.C. § 1983 FOR THE UNCONSTITUTIONAL
ACTS OF A SUBORDINATE ON THE BASIS OF MERE
INACTION, AND IN THE ABSENCE OF ANY
AFFIRMATIVE CONDUCT, CONDONATION OR
AUTHORIZATION ON THE PART OF THE OFFICIAL,
CONFLICTS WITH DECISIONS OF THIS COURT AND
OTHER CIRCUITS.
Having found that public school students have a constitutional
right to be free from physical sexual abuse by school employees,
the majority then held that school officials can be liable for
“supervisory failures” that result in such abuse, if the official, “by
action or inaction,” demonstrated a deliberate indifference towards
a student’s constitutional rights. App. A, 22a.
While the majority disclaimed the existence of an affirmative
constitutional duty to protect in the school setting given the
absence of a “special relationship” as required by this Court in
DeShaney v. Winnebago County Department of Social Services,
489 U.S. 189 (1989), it did, in reality, adopt a form of such duty —
”an affirmative duty not to fail with deliberate indifference to act.”
App. A, 57a (J. Garwood, dissenting). Eschewing this Court’s
holding in Rizzo v. Goode, 423 U.S. 362 (1976), the majority
specifically held that mere inaction can amount to the deliberate
indifference necessary to affix supervisory liability. App. A, 2a.
Indeed, the three-part test for supervisory liability devised by the
majority “contains no element of affirmative conduct,
16
communication of condonation or authorization, or the like on the
supervisor’s part.” App. A, 58a (J. Garwood, dissenting). Instead,
under the second prong of the majority’s test, failing to act is the
key, i.e., “failing to take action that was obviously necessary to
prevent or stop the abuse.” App. A, 23a.
While this Court has, in the past, found that fundamental
rights emanate from, or are within the penumbra of rights not
expressly articulated in the Constitution (particularly privacy
rights), it has never ignored the textual constraints embodied in the
Fourteenth Amendment’s “no action” clause to command the type
of affirmative obligations embodied in the majority’s three part
test.'° Indeed in Rizzo, this Court addressed and rejected the
argument that a supervisory public official has an affirmative
constitutional duty to supervise and discipline so as to prevent
violations of constitutional rights by his or her subordinates.
Rizzo, 423 U.S. at 376. This Court held that supervisory officials
do not violate the constitutional rights of the victims of a
subordinate’s misconduct unless they have played an “affirmative
10. The majority, apparently recognizing that it is exposing Lankford to
liability divorced from any constitutional violation committed by him, notes that
the imposition of such liability derives from the language of Section 1983 and
not from the violation of any constitutional provision. App. A, 22a n. 8 (“this
standard of liability derives from the language of Section 1983, which provides a
remedy against anyone who, under color of state law ‘causes’ another to be
subjected to a violation of his or her constitutional rights”). The effect of the
majority’s distinction is to make Section 1983 a federal tort statute as opposed to
a Statutory remedy for constitutional violations. Assuming Congress intended to
provide additional tort liabilities in Section 1983, “[i]n no reasonable sense of
the word ‘causes’ can Lankford’s pure inaction — not amounting to tacit or
implied condonation or authorization — be said to have ‘caused’ Stroud’s
physical sexual abuse of Doe. As the Supreme Court observed in Rizzo, ‘[s]uch
reasoning . . . blurs accepted usages and meanings in the English language in a
way which would be quite inconsistent with the words Congress chose in Section
1983.’” App. A, 7la-72a (J. Garwood, dissenting) (quoting Rizzo, 423 U.S. at
376).
debt Ba La
17
part” in that misconduct, even where a pattern of constitutional
violations by a subordinate is shown. Jd. at 377.
The majority’s insistence that mere inaction is sufficient to
affix supervisory liability, and its refusal to find that Rizzo dictates
otherwise, is in conflict with the majority of the circuits that have
addressed the issue. See Stoneking v. Bradford Area Sch. Dist., 882
F.2d 720 (3rd Cir. 1989), cert. denied sub nom., Smith v. Stoneking,
493 U.S. 1044 (1990) (Stoneking II) (holding that school
superintendent was entitled to qualified immunity in action
brought by former student arising from teacher’s alleged sexual
misconduct where there were no affirmative acts by
superintendent on which to base claim of toleration, condonation
or encouragement of sexual harassment by teacher); Poe v.
Haydon, 853 F.2d 418, 429 (6th Cir. 1988), cert. denied, 488 U.S.
1007 (1989) (holding that mere inaction does not afford liability
under Section 1983 even where a supervisor is actually aware of
subordinate’s constitutional violations); Wilson v. City of N. Little
Rock, 801 F.2d 316, 322 (8th Cir. 198) (holding that Section 1983
liability will not lie against supervisory officials for failing to
prevent police misconduct, absent showing of at least tacit
authorization); Lenard v. Argents, 699 F.2d 874 (7th Cir.), cert.
denied, 464 U.S. 815 (1983) (holding that at a minimum, plaintiff
must show official implicitly authorized, approved, or knowingly
acquiesced in unconstitutional conduct of offending officers);
Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir. 1980), cert. denied sub
nom., Turpin v. City of West Haven, 449 U.S. 1016 (1980) (holding
supervisory Officials liable only where there is deliberate
indifference or tacit authorization to a pattern of constitutionally
offensive acts); Cook v. City of Price, Carbon Cty., Utah, 566 F.2d
699, 702 (10th Cir. 1977) (holding that counsel members were not
responsible for city clerk’s actions absent showing of affirmative
link between clerk’s actions and those of council members).'!
11. The majority’s opinion is likewise contrary to prior case law in the
Fifth Circuit. See Reimer v. Smith, 663 F.2d 1316, 1323 (Sth Cir. 1981) (“a
(Cont'd)
18
The Third Circr:it’s decision in Stoneking II best demonstrates
the conflict createa by the majority’s holding. In Stoneking II, a
case involving the sexual abuse of a high school student by a band
director during school time and school activities, the plaintiff
asserted claims of supervisory liability against the principal,
assistant principal and superintendent. After reviewing Rizzo and
its progeny, the circuit court concluded that “the mere failure of
supervisory officials to act or investigate cannot be the basis of
liability . . .” Stoneking II, 882 F.2d at 730. The court held that the
principal and assistant principal, who were alleged to have
intimidated and chastised students that lodged complaints of
sexual abuse against the band director, were not entitled to
summary judgment on qualified immunity grounds since such
“affirmative conduct” could be viewed as amounting “to a
communication of condonation” of the band director’s
misconduct. Jd. at 730-31. On the other hand, the court determined
that the superintendent was entitled to summary judgment since he
engaged in no such affirmative acts, and the claims against him
amounted to “mere ‘inaction and insensitivity’ on his part.” Jd. at
731. Qualified immunity was thus bestowed on the superintendent
in Stoneking II on the same basis that it was denied to Petitioner
Lankford here.'”
(Cont'd)
supervisory official cannot be held liable merely for failing to adopt policies to
prevent Constitutional violations; however, he can be held liable if he
affirmatively adopts policies which are wrong or illegal”); Wanger v. Bonner,
621 F.2d 675 (Sth Cir. 1980) (holding that a supervisory official could not be held
liable for failing to adopt policies to prevent Constitutional violations, but could
be held liable if he affirmatively adopted policies which were wrongful or illegal
and which caused the alleged deprivation of Constitutional rights”).
12. Indeed, the majority did not conclude that Stroud’s physical sexual
abuse of Respondent was the result of any tacit or implied approval of such
misconduct on Lankford’s part. Under the majority’s holding, Lankford’s
liability is based on non-feasance and nothing more. App. A, 57a-58a (J.
Garwood, dissenting).
-
19
Il.
THE FIFTH CIRCUIT’S EN BANC DECISION THATA
SUPERVISORY OFFICIAL MAY BE HELD LIABLE
UNDER 42 U.S.C. § 1983 FOR THE UNCONSTITUTIONAL
ACTS OF A SUBORDINATE, BASED UPON A
DELIBERATE INDIFFERENCE STANDARD, IN THE
ABSENCE OF ACTUAL KNOWLEDGE ON THE PART OF
THE OFFICIAL THAT ANY SUCH CONSTITUTIONAL
VIOLATIONS HAD PREVIOUSLY OCCURRED,
CONFLICTS WITH THE EIGHTH CIRCUIT’S DECISION
IN JANE DOE A. V. SPECIAL SCHOOL DISTRICT OF ST.
LOUIS COUNTY.
The effect of the majority’s holding that a supervisory
official’s inaction alone can amount to deliberate indifference is
further aggravated by the diminished knowledge standard it
imposes to trigger the duty to act. The first prong of the
supervisory liability test devised by the majority, i.e., that the
official “learned of facts or a pattern of inappropriate sexual
behavior by a subordinate pointing plainly toward the conclusion
that the subordinate was sexually abusing the student,” App. A,
23a, coupled with the second prong requirement that he “take
action that was obviously necessary to prevent or stop the abuse,”
id., in effect, creates a negligence standard of liability:
-.. nO one—other than Stroud or Doe—
witnessed or otherwise knew of physical
sexual abuse of Doe by Stroud or even told
Lankford that such was likely occurring. Doe
even fooled her parents.
13. Itis fundamental that mere negligence in supervision of subordinates
is insufficient to impose liability on supervisory officials under 42 U.S.C.
§ 1983. Daniels v. Williams, 474 U.S. 327, 330-33 (1986).
20
The effect of this standard will almost
inevitably be to in practice reduce the
purported “deliberate indifference” test to one
of negligence. If the supervisor — like
Lankford here — does not know of the
subordinate’s physical abuse of the victim, the
supervisor may nonetheless be liable if the
facts that he did know are ones the Court
characterizes as “pointing plainly toward the
conclusion that” sexual abuse was occurring.
The supervisor, however, — due to inattention
or stupidity — may not have drawn that
conclusion, but is nevertheless held liable.
Such liability is, in essence, liability based on
negligence. In the real world of litigation, that
is how these cases will be fought out.
App. A, 7lan. 23 (J. Garwood, dissenting).
The first prong of the majority’s test is in direct conflict with
the holding of the Eighth Circuit in Jane Doe A. v. Special School
District of St. Louis County, 901 F.2d 642 (8th Cir. 1990). In Jane
Doe A., the plaintiffs alleged that the defendant school
administrators had violated the plaintiffs’ constitutional rights by
“fail[ing] to adequately respond to a known risk of physical and
emotional harm” presented by a school district bus driver who was
later arrested and charged with child abuse. Jd. at 645. The Eighth
Circuit utilized a four-step inquiry to determine whether the
individual administrators should be held personally liable for the
bus driver’s conduct: (1) whether the administrator had “[rJeceived
notice of a pattern of unconstitutional acts committed by
subordinates;” (2) whether the administrator had “[d]emonstrated
deliberate indifference to or tacit authorization of the offensive
acts;” (3) whether the administrator “[f]ailed to take sufficient
remedial action;” and (4) whether the administrator’s failure to
21
take action “proximately caused injury” to the plaintiffs. Jd. at 645
(citing Wilson, 801 F.2d at 322).
The Fifth Circuit's test for deliberate indifference obviously
requires less knowledge to affix supervisory liability than the
Eighth Circuit. While the Jane Doe A. test requires actual notice of
unconstitutional acts by a subordinate, the Fifth Circuit requires
only notice of facts or a pattern of behavior which would lead to the
conclusion that such unconstitutional acts have occurred.'* Thus,
while the court in Jane Doe A. found that reports of misconduct on
the part of the bus driver (e.g., kissing students, use of profanity,
etc.) were insufficient to constitute notice of a “pattern of
unconstitutional acts,” id. at 646, such reports could have been
sufficient to satisfy the Fifth Circuit's lesser knowledge standard.
In effect, the Fifth Circuit’s test creates the very problem that the
Eighth Circuit sought to avoid:
To hold that the individual defendants and the
District are not liable to plaintiffs is not to
14. The definition given to deliberate indifference in Eighth Amendment
prisoners’ rights cases reveals an even broader conflict among the circuits. In the
most recent case of Clark v. Armontrout, __ F.3d __, 1194 W.L. 29736 (8th Cir.,
May 25, 1994), the Eighth Circuit articulated its approval of a “knew or should
have known” standard in the context of prisoners’ rights cases, noting that there
is a split in the circuits on this point. /d. at n. 2. Compare King v. Fairman, 997
F.2d 259, 261 (7th Cir. 1993) (requiring actual knowledge) and Watson v.
Canton, 984 F.2d 537, 540 (1st Cir. 1993) (accord), with Redmond v. County of
San Diego, 942 F.2d 1345, 1443 (9th Cir. 1991), cert. denied, __U.S.__, 1128.
Ct. 972 (1992) and Young v. Quinlan, 960 F.2d 351, 360-61 (3rd Cir. 1992)
(accord). This very issue is apparently before this Court in Farmer v. Brennan,
11 F.3d 668 (7th Cir. 1992), cert. granted, U.S. __, 114 S. Ct. 56 (1994), in
which this Court has been asked to determine if deliberate indifference means
disregarding an obvious risk or only a risk that is actually known. Arguably, a
lesser knowledge standard is appropriate in Deshaney-type cases where an
affirmative duty to protect arises, but the same cannot be said of cases in which
no custodial or other “special relationship” exists.
22
minimize Cerny’s misconduct. That
subsequent events proved him to be a sexual
reprobate, however, should not result in after-
the-fact imposition of the requirement of
character-discerning omniscience on the part
of the individual defendants or the District.
Viewed in retrospect, some of Cerny’s pre-
arrest conduct portrays his true nature with a
clarity that pre-arrest circumstances at the most
only hinted at. If negligence could form the
basis for a finding of liability, plaintiffs’
showing might have been adequate to take the
case to a jury. Measured against the deliberate
indifference-official policy standard of
liability, however, plaintiffs have failed to
establish a submissible case.
Id. at 646-47.
IV.
THE FIFTH CIRCUIT’S EN BANC DECISION THAT
THE CONSTITUTIONAL RIGHT AND BASIS FOR
SUPERVISORY LIABILITY FOUND WERE “CLEARLY
ESTABLISHED” FOR PURPOSES OF DENYING
QUALIFIED IMMUNITY UNDER 42 U.S.C. § 1983, WHEN
THERE WAS NO AUTHORITY ON POINT AT THE TIME
THE CAUSE OF ACTION AROSE, CONFLICTS WITH
DECISIONS OF THIS COURT AND OTHER CIRCUITS.
It is fundamental, of course, that a public official, such as
Lankford, is entitled to qualified immunity under Section 1983
unless his conduct violated “clearly established” statutory or
constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This
objective test itself, however, has not been applied by the courts
a ceainreeenmanienminiineaidill
23
with any real degree of clarity, and the holding of the majority here,
unfortunately, only serves to further confuse the issue.
In 1987, it was not clearly established, and indeed it is open to
question now, that (1) a public school teacher’s consensual sexual
relationship with a fifteen year old student, occurring outside of
school time and unrelated to any school activity, could be “under
color of law” for purposes of affixing constitutional liability, see
Section I, pp. 9-15, supra; (2) a supervisory official could be held
liable under Section 1983 for the unconstitutional acts of a
subordinate on the basis of mere inaction, and in the absence of any
affirmative conduct, condonation or authorization on the part of
the official, see Section II, pp. 15-18, supra; and (3) a supervisory
official could be held liable under Section 1983 for the
unconstitutional acts of a subordinate, based upon a deliberate
indifference standard, in the absence of actual knowledge on the
part of the official that any such constitutional violation had
previously occurred, see Section III, pp. 19-22, supra. Indeed, as
Judge Jones noted in her dissent, “to assert that these propositions
were ‘clearly established’ in 1987 is an extravagant
overstatement.” App. A, 75a (J. Jones, dissenting).
The majority engaged in a unique “clearly established”
analysis in order to find that Lankford was not entitled to qualified
immunity. Most disturbing is the majority’s heavy reliance on
Jefferson v. Ysleta Independent School District, 817 F.2d 303 (5th
Cir. 1987), to conclude that the Respondent had a constitutional
right to be free from Stroud’s molestations, and Lopez v. Houston
Independent School District, 817 F.2d 351 (Sth Cir. 1987), to find
that Lankford’s mere failure to act could subject him to liability.
Both such opinions, while factually inapposite to this case, were
also decided after Respondent’s cause of action arose. '°
5. As noted by Judge Garwood’s dissent,
(t}he majority is similarly in error in denying Lankford
(Cont'd)
24
Recognizing that Jefferson was not on point, the majority, in
what Judge Jones described as “tortuously reasoned steps to
liability,” App. A, 75a (J. Jones, dissenting), applied some form of
“shock the conscience” test to conclude that in 1987 Stroud could
not reasonably have assumed that it was constitutionally
(Cont'd)
qualified immunity on the basis of Jefferson v. Ysleta
ISD, 817 F.2d 303 (Sth Cir. 1987), and Lopez v. Houston
ISD, 817 F.2d 351 (Sth Cir. 1987). The majority holds
Lankford may be found liable for failing, between
Valentine's Day and late March or early April 1987, to
take action so that the Stroud-Doe “relationship might
have been derailed at that point.” Not only are the cited
cases quite inapposite — Jefferson involves tying an
eight-year old student to her desk all day as school
discipline and has no discussion of supervisory (or
municipal) liability, and Lopez held the supervisors were
not liable for the bus driver's wrongful conduct (which in
effect imprisoned the student in the bus while the driver
knew he was being beaten) — but neither was handed
down until late May 1987.
App. A, 68a n. 18 (J. Garwood, dissenting).
— ee ee ee —
Similarly, Judge Jones, upon review of Judge Higginbotham’s
concurrence, noted that reliance on corporal punishment cases is improper:
Judge Higginbotham’s concurrence suggests that Doe’s
“fundamental right” stems a fortiori from the Supreme
Court's decision in Ingraham v. Wright, which held that
Fourteenth Amendment liberty interests are implicated
by the decision of school authorities to inflict corporal
punishment on a student. . .. With all due respect, itis a
long step from deciding the procedural attributes of
corporal punishment to enunciating a right to “freedom
of bodily integrity against a teacher who pursues sordid
ends.”
~~ oS
App. A, 74an. 2 (J. Jones, dissenting)
25
permissible to sexually molest the Respondent. App. A, 24a-25a
The majority’s sidelong analysis, however, misses the mark. The
essential inquiries are whether it was reasonably known to
Lankford that Stroud’s prurient and self-gratifying acts could be
attributed to the state for purposes of constitutional liability; and
(2) whether his (Lankford’s) mere inaction when faced with facts
that the majority, in hindsight, believes point to sexual abuse,
subjects him to Section 1983 liability.
The majority’s “clearly established” analysis conflicts with
the decisions of this Court, as well as the Seventh Circuit in
Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir. 1987) and the
Eleventh Circuit in Barts v. Joyner, 865 F.2d 1187, 1194 (11th Cir.),
cert. denied, 493 U.S. 831 (1989). In Harlow, this Court held that
there must be a factual connection between the action complained
of and the cases establishing the clearly established law which is
sufficient to apply those cases to the act at issue. 457 U.S. at 818.
Similarly, the Eleventh Circuit requires that “a bright line be
crossed,” noting that such line cannot “be found in abstractions —
to act reasonably, to act with probable cause, and so forth — but in
studying how these abstractions have been applied in concrete
circumstances.” Barts, 865 F.2d at 1194. Finally, the Seventh
Circuit likewise requires that the law be clear “in relation to the
specific facts confronting the public official when he acted.”
Colaizzi, 812 F.2d at 308.
The majority’s reliance on dissimilar cases is further
aggravated by its failure to acknowledge the existence of
conflicting decisions within the Fifth Circuit itself. As noted by
Judge Garwood, the Fifth Circuit’s decision addressing whether
mere inaction can constitute “deliberate indifference” for purposes
of imposing Section 1983 liability are inconsistent: “Our decisions
in this area — like those of other circuits — are, unfortunately, not
all of one piece.” App. A, 66a (J. Garwood, dissenting); see also
Section II, pp. 17-18 n. 11, supra. Similarly, the majority’s “color
26
of law” analysis fails to address Fifth Circuit and Texas cases
holding that sexual assaults committed by government employees
are not under color of law. See App. A, 54a n. 7 (J. Garwood,
dissenting); see also App. A, 102a-104a (J. Garza, dissenting)
(collecting cases).
The Fifth Circuit’s “clearly established” analysis likewise
ignores the vast uncertainty that has existed in the area of
supervisory liability under Section 1983. This Court did not decide
DeShaney until 1989. In the same year, this Court vacated and
remanded the Third Circuit’s decision denying immunity to school
administrators in Stoneking v. Bradford Area Sch. Dist., 856 F.2d
594 (3rd Cir. 1988), vacated sub nom., Smith v. Stoneking, 489 U.S.
1062 (Stoneking I), with specific instructions to the Third Circuit
to reconsider the school administrators’ claims of qualified
immunity in light of DeShaney. Likewise, City of Canton v.
Harris, 489 U.S. 378 (1989), a municipality liability case which
the majority curiously relies on to establish the contours of
supervisory liability, was decided after the cause of action here
arose.'®
16. Aside from the question of timing, Canton’s
applicability to the personal liability of individual public
school supervisors is doubtful. Canton held that in
appropriate circumstances a municipality could be liable
for constitutional violations resulting from _ its
deliberately chosen training policy for city employees. It
is one thing to hold the municipality as a whole liable in
such an instance, as the entire corporate entity doubtless
has the complete responsibility for and power and
control over the training, assignment, and utilization of
its employees, and the corporate entity as a whole is the
recipient and beneficiary of their services. The case of
individual supervisors is distinctly different.
App. A, 68a (J. Garwood, dissenting).
eee ee ee
27
Finally, Judge Garwood’s lament that the majority has “turned
the concept of ‘clearly established’ on its head,” App. A, 56a n. 10
(J. Garwood, dissenting), is perhaps best demonstrated by the
court’s refusal to reckon with the decision of the Chief Judge of the
Southern District of Texas in Von Drehle v. Houston Indep. Sch.
Dist., No. H-88-539 (S.D. Tex. Nov. 21, 1989). See App. D.'” Van
Drehle involved the physical sexual abuse of special education
students by a school employee. The plaintiffs contended, as was
contended in this case, that the students had a constitutional right to
be free from bodily harm at school. The district court, citing
DeShaney, found that no such right in fact existed. App. D, 137a. If
a federal district court in Texas could, in 1989, find that there was
no constitutional right for a student to be free from bodily harm at
school, then how could a Texas school administrator in Taylor,
Texas, in 1987, know of such a right, let alone know that what he
was doing — or not doing — violated that right?
17. While Von Drehle was briefed and argued before the en banc court, it is
not referenced in the court’s opinion.
28
CONCLUSION
For all of the foregoing reasons, Petitioners respectfully
request that this Petition for Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit be granted and that the case
be set for plenary review.
Respectfully submitted,
DAVID M. FELDMAN
Counsel of Record
FELDMAN & ASSOCIATES
Attorneys for Petitioner
Twelve Greenway Plaza
Suite 1202
Houston, Texas 77046
(713) 960-6000
Pea ae Eee ‘ dupe
la
APPENDIX A — DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT DATED
MARCH3, 1994
Jane DOE, Plaintiff-A ppellee,
Vv.
TAYLOR INDEPENDENT SCHOOL DISTRICT,
et al., Defendants,
Mike Caplinger in his official capacities and Eddy Lankford in
his official and individual capacities, Defendants-Appellants.
No. 90-8431
United States Court of Appeals,
Fifth Circuit.
March 3, 1994.
*” * ok
Patrick E. Higginbotham, Circuit Judge filed a concurring
opinion in which Politz, Chief Judge, concurred. ,
Garwood, Circuit Judge, filed a dissenting opinion in which
Edith H. Jones, Jerry E. Smith, Barksdale, Emilio M. Garza and
DeMoss, Circuit Judges, joined.
Emilio M. Garza, Circuit Judge, concurred in part and
dissented in part and filed opinion.
Opinion, 975 F.2d 137, vacated.
2a
Appendix A
* * *
Appeal from the United States District Court for the Western
District of Texas.
Before POLITZ, Chief Judge, GOLDBERG, KING,
GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA,
and DeMOSS, Circuit Judges.
E. GRADY JOLLY and W. EUGENE DAVIS, Circuit Judges:
Jane Doe was sexually molested by her high school teacher in
Taylor, Texas. Defendant Eddy Lankford, principal of Taylor High,
and defendant Mike Caplinger, superintendent of the Taylor
Independent School District, were sued in their supervisory
capacity by Jane Doe for permitting violations of her substantive
due process right to bodily integrity. The district court denied their
claim of qualified immunity, and they have filed this interlocutory
appeal on that issue. We hold, first, that schoolchildren do have a
liberty interest in their bodily integrity that is protected by the Due
Process Clause of the Fourteenth Amendment and that physical
sexual abuse by a school employee violates that right. Second, we
hold that school officials can be held liable for supervisory failures
that result in the molestation of a schoolchild if those failures
manifest a deliberate indifference to the constitutional rights of
that child. Next, we conclude that each of these legal principles
was Clearly established in 1987, when the violations took place.
Finally, in analyzing whether Caplinger and Lankford fulfilled the
duty that they owed to Jane Doe, we reverse the district court’s
denial of immunity to defendant Caplinger, but we affirm its denial
of immunity to Lankford.
3a
Appendix A
Ze
FACTS'
Defendant Jesse Lynn Stroud, a twenty-year veteran of
Texas’s public education system, was employed by the Taylor
Independent School District as a biology teacher and assistant
coach from 1981 until 1987. It was no secret within the school
community that Coach Stroud behaved inappropriately toward a
number of young female students over the course of his
employment at Taylor High. He made little effort to conceal his
fancy for these female students; he wrote notes to them, he let them
drive his truck, he exhibited explicit favoritism toward them in
class, and often touched them in an overly familiar, inappropriate
way.
Defendant Eddy Lankford became the principal of Taylor
High in August 1983. By the fall semester of 1985, complaints
about Stroud’s behavior had reached his office through various
channels. During the previous 1984-1985 school year, Stroud had
“befriended” one of his female freshman students. Their friendship
far transgressed the boundaries of a normal, appropriate teacher-
student relationship. Stroud frequently placed candy, flowers, and
other gifts in her locker, and the two were often seen exchanging
notes. He allowed her to take her friends to lunch in his truck. He
wrote excuses for her when she was late for other classes. He often
walked her to class, prompting students openly to tease Stroud
1. Because this case is on appeal from the denial of a motion for summary
judgment, we review the record de novo. We are required to review the facts in the
light most favorable to the nonmoving party — here, Jane Doe. See /nternational
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (Sth Cir.1991), cert. denied, __
U.S. __, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992). Any disputes of fact are therefore
resolved in Jane Doe's favor. See id.
4a
Appendix A
about his relationship with this girl. Stroud also engaged in overt
favoritism in his biology classes. Female students were not
required to do classwork or to behave; they often wandered around
the classroom, left the classroom during the class period, or
changed their grades in Stroud’s gradebook. Conversely, male
students (with the exception of certain athletes who were coached
by Stroud) were made to submit classwork, take tests, and
generally behave like regular students.
By the fall of 1985, approximately one year after their
“relationship” had begun, rumors about Stroud and the freshman
student (by then a sophomore) were circulating not only among
students and faculty but also among the town residents of Taylor.
Stroud’s favoritism in the classroom was also well-known within
the school community. In addition, Stroud had also befriended a
new female freshman student, and began a similar inappropriate
relationship (note-writing, gift-giving, walking to class, etc.) with
her. Principal Lankford approached Stroud outside the fieldhouse
during the 1985 football season and spoke to him about being “too
friendly” with the sophomore student.
Also during the fall of 1985, the school librarian, Mary Jean
Livingood, received telephone calls from two friends whose
children were students in Stroud’s biology class. Both mothers
complained about Stroud’s favoritism toward certain students in
the classroom and his use of sexual innuendo in his biology
lectures. Livingood had also seen Stroud engaging in
unprofessional conduct; he often grabbed girls around the waist
from behind :n the hallways or excessively hugged girls while
putting his arms around them. Livingood reported the
inappropriate behavior she had witnessed to Principal Lankford
and also informed him of the two telephone calls she had received
from parents. Additionally, one of the mothers who had initially
called Livingood also called Lankford to complain about Stroud’s
ee a eT
PP nape
Sa
Appendix A
favoritism in the classroom. Although Lankford claims that he
spoke with Stroud about these complaints, Stroud does not recall
any such meeting.
In the spring of 1986, guidance counselor Naomi Pasemann
noticed a group of girls gathered around Stroud’s desk before
school one day; one of the girls was sitiing on top of the desk, while
Stroud was seated behind the desk with the rest of the girls around
him. Pasemann told Lankford about this incident; the two also
discussed Stroud’s practice of allowing unlicensed freshmen to
drive his truck. Later that spring, the mothers of two female
students in Stroud’s biology class met with Lankford and
complained about Stroud’s overt favoritism toward certain girls in
the class. Lankford suggested that the!r daughters were “a little bit
jealous” of those girls in the favored group.
In May of 1986, Livingood reported to Lankford that she had
witnessed an episode of “child molestation” involving Stroud and
two freshman female students. Livingood noticed that the lights in
the copy room at the library were off; as she approached the room,
she heard loud laughing and talking. When she looked into the
room, she saw Stroud lifting the female students onto a table and
catching them as they jumped off of the table into his arms. She
insisted that Stroud stop the behavior. She immediately reported
the incident to Lankford.
Lankford downplayed the incident. He told Livingood that he
put his arms around cheerleaders at pep rallies all the time, and
joked that he had invented the popular “pro-hugging” bumper
stickers often seen on automobiles.* Livingood explained that the
behavior that she witnessed was of a different ilk, was
2. The bumper stickers to which Lankford referred are emblazoned with some
variation of the slogan “Have you hugged your child (dog, cat, tree, etc.) today?”
6a
Appendix A
inappropriate, and was akin to “child molestation.” When Stroud
iater approached Lankford to discuss the incident, the two men
agreed that the librarian had overreacted. Lankford did not warn or
discipline Stroud — even mildly — for any incident or conduct.
Indeed, Lankford failed to document any of the complaints he
received about Stroud.
All of this behavior occurred before defendant Mike
Caplinger ever moved to Taylor or worked for the Taylor
Independent School District. Caplinger became the superintendent
of the Taylor ISD in July 1986; Lankford did not inform Caplinger
of any problems — real or potential — with Stroud or with his
pattern of conduct.
Plaintiff Jane Doe entered Taylor High as a freshman in
August 1986; she was a student in Stroud’s biology class. Stroud
began his seduction of Doe by writing personal — often suggestive
— comments on her homework and test papers. The two began
exchanging notes and telephoning each other; he often walked her
to class. Stroud took Doe and her friends to lunch during the school
day and bought alcoholic beverages for them. He did not require
Doe to do classwork or to take tests, yet she received high grades in
Stroud’s class. Not surprisingly, all of this attention flattered Doe,
and she developed a “crush” on Stroud.
By late fall, Stroud was touching and kissing Jane Doe. It
began with a kiss on her cheek as she was leaving the school
fieldhouse one day. Eventually, he began taking her into the
laboratory room adjacent to his classroom and to the fieldhouse to
engage in kissing and petting. Their physical relationship escalated
to heavy petting and undressing in January 1987, when Stroud took
Doe and some of her friends, including his own daughter, to a rock
concert. There, he bought her alcoholic beverages, took her back to
7a
Appendix A
the fieldhouse, and began caressing her in the most intimate of
ways. He suggested intercourse, but she refused.
Rumors about Doe and Stroud were rampant among the
students and faculty by this time. The two were constantly together
— walking to class, riding in the car, going out to lunch. Doe often
went to Stroud’s classroom during other class periods. Coaches
and students frequently teased Stroud about his relationship with
Doe, often mentioning the two freshman girls he had befriended
during the two previous years. Sometime in January 1987,
Lankford heard that Stroud had taken Doe and other students to the
rock concert; that month he also received complaints from four
female students in Stroud’s biology class about Stroud’s favoritism
toward certain students. Lankford spoke with Stroud about this
complaint, and, for the first time, notified Caplinger about possible
problems with Coach Stroud.
In early February 1987, Mickey Miller, the assistant principal
of Taylor’s middle school, reported to Caplinger that at a
basketball game he had witnessed Stroud behaving inappropriately
with several freshman girls, including Jane Doe. Instead of sitting
with the team, Stroud was sitting with the girls engaging in
horseplay — the girls played with his hair as he halfheartedly
“defended” himself. Caplinger instructed Lankford to speak with
Stroud about this incident, which he did; the athletic director, Eddy
Spiller, also spoke with Stroud about the report. Spiller later told
Lankford that he had asked Stroud if Stroud was “fooling around
with any of these little old girls,” and that Stroud had denied any
such behavior. Lankford acknowledges that he did not ask Spiller
what prompted him to confront Stroud with this direct question.
On Valentine’s Day, Stroud gave Jane Doe a valentine that
read: “To my most favorite, prettiest, sweetest, nicest sweetheart in
we
i]
8a
Appendix A
the world! Please don’t change cause I need you. I’m in love with
you. “orever — for real — I love you.” A friend and classmate of
Jane Doe’s, Brittani B., found the valentine in Doe’s purse and took
it to Pasemann, the guidance counselor. Brittani told Pasemann
about the exchange of notes and gifts between Doe and Stroud, and
shared her suspicions that the two were having a sexual
relationship. Pasemann told Brittani that she had heard the rumors
about Stroud and Doe, and instructed her to take the note to
Principal Lankford. |
Brittani took the note to Lankford the next day; when she went
into his office, he insisted that a witness be present for the meeting
to ensure, according to him, “that rumors won’t start like those
about Stroud and [Doe].” Lankford examined the note and
admitted that the handwriting looked like Stroud’s, but told
Brittani that he had no proof that it was from Stroud because it was
not signed. Lankford told Brittani that Stroud merely had a way of
flirting with the girls, and that such behavior was Stroud’s “way of
doing things.” Lankford did not keep a copy of the note and did not
investigate the matter further; he did not tell Superintendent
Caplinger about the incident, nor did he speak with Stroud or Doe.
His only action was to transfer Brittani out of Stroud’s biology
class.
After a school-sponsored Valentine’s Day dance, Jane Doe
spent the night at Stroud’s home; Doe had befriended Stroud’s
daughter, and Stroud had invited Doe to spend the night. While
Doe was there, Stroud again suggested to her that they have
intercourse. Once again, she refused. She spent several nights at
the Stroud home over the next few months. In late March or early
April 1987, Stroud and Doe had intercourse for the first time. She
was fifteen years old. Stroud was her first sexual partner.
9a
Appendix A
Over the next several months, Stroud and Doe had repeated
sexual contact. Sex occurred at different locations, both on and off
school grounds. Their romantic relationship — although perhaps
not the extent of it — was common knowledge within the Taylor
High community, not only among students, but also among the
faculty and the parents of many students. Lankford asked a friend
whose daughter was a student at the high school to “keep his ears
open” for information about Doe and Stroud. On Stroud’s
performance evaluation by Lankford for the 1986-1987 academic
year, however, there was nothing to indicate that Stroud’s
performance was anything less than fully satisfactory. Indeed,
Lankford still had not even informally documented any incident or
pattern of conduct relating to Stroud.
In June 1987, Stroud took Doe and some other girls, along
with his family, to a local fair, the Corn Festival, where he once
again provided them with alcoholic beverages. At least one of the
girls became intoxicated. Stroud’s wife angrily left the festival
when Stroud began dancing with Doe. Stroud and Doe left the
festival together, went out to a field, and had sexual intercourse.
Later, he and Doe went to his home, where Doe spent the night, and
had intercourse again. Two concerned parents, both prominent
members of the community, reportea to Caplinger that Stroud was
behaving inappropriately with Jane Doe at this festival, that Mrs.
Stroud had left the festival because cf his behavior, and that there
was a possibility that he and Doe had left the festival together. One
of the parents also showed Caplinger notes that Stroud had written
to his daughter.
In response to the report, Caplinger contacted the parents of
the girl who, according to the story, was intoxicated and
misbehaving at the festival in the company of Doe and Stroud.
When the girl’s mother assured him that her daughter had not even
ida
Appendix A
been at the festival, that she had been sick and at home, Caplinger
dismissed the report as unfounded without investigating further or
contacting Jane Doe’s parents to discuss the report with them.
Caplinger was by now aware of the rumors about Stroud and
Doe and the reports of his favoritism in the classroom. He
cortacted the school’s attorney to discuss the situation concerning
Stroud, and, apparently at Caplinger’s instruction, Lankford
contacted the Texas Education Authority to see if there were any
reports about Stroud concerning any inappropriate behavior at the
schools where he had previously been employed. Lankford was
told there were no reports specifically naming Stroud, but that the
Authority had received an anonymous tip about an inappropriate
relationship between a coach and a student at Taylor High.
In July 1987, Doe’s parents discovered photographs of Stroud
among Doe’s possessions with such handwritten inscriptions by
Stroud as: “Please don’t ever change and don’t ever leave me. I
want to be this close always — I love you — Coach Lynn Stroud.”
Doe’s parents immediately scheduled a meeting with Caplinger. At
the meeting, they showed him the photographs. Caplinger
confirmed to them that he was aware of rumors concerning Stroud
and Doe and told them about the Corn Festival incident. He
promised to convene a meeting of all the parties involved. After
speaking with Doe’s parents, Caplinger spoke with Jane Doe
privately in his office. He showed her the photographs her parents
had just presented to him and inquired about the nature of her
relationship with Stroud. Doe suggested that the notes on the
photos were just “friendly gestures.” She explicitly denied any
sexual relations with Stroud.
Caplinger called Lankford after the meeting with the Does,
who in turn called Stroud. Upon receiving the message, Stroud
lla
Appendix A
sought out Lankford; before Lankford had a chance to explain to
Stroud that there had been a meeting with the Does concerning
some photographs that he had given to Jane, Stroud vehemently
denied any sexual involvement with Doe. For the first time,
Lankford spoke of disciplinary consequences. Lankford suggested
to Stroud that he resign or take an in-school suspension (which
would relieve him of his classroom duties), but Stroud refused.
Lankford and Stroud then went over to Caplinger’s house at
approximately 9:30 p.m. that evening. Caplinger, who had guests
in his house, left his house and went to his office accompanied by
Lankford and Stroud. There, the three men discussed the situation.
Caplinger and Lankford warned Stroud to keep his distance from
Jane Doe, and that he would be fired “if something was going on.”
No further action was taken, however; the meeting that Caplinger
had promised to schedule never took place, and Stroud did not hear
from either Lankford or Caplinger again until October 6, the day he
was suspended from employment.
Although Jane Doe was able to stay away from Stroud for the
remainder of the summer vacation, when classes resumed in the
late summer of 1987, Stroud’s sexual advances towards her
resumed as well, and soon thereafter they began having intercourse
again. Lankford admits that he watched Stroud no more closely
than he previously had. The sexual contact continued into the fall
of Jane Doe’s sophomore year, until October 5, when Doe’s mother
found more love letters from Stroud among Jane’s possessions.
The Does then consulted their family lawyer, who agreed to
discuss the matter with Jane. Upon meeting with Jane, the attorney
learned the truth about her sexual involvement with Stroud. Doe
explained that she had kept the matter a secret because she feared
the repercussions of disclosure.
The attorney reported the information to Caplinger at once.
Coincidentally, on the same day, the mother of another female
12a
Appendix A
student contacted the administration to report that her daughter had
also been victimized by Stroud; Stroud had grabbed the student’s
buttocks in class that day. Caplinger ordered Stroud immediately
suspended from employment. Stroud later resigned his position
and pled guilty to criminal charges stemming from his molestation
of Jane Doe.
II
PROCEDURAL HISTORY
Jane Doe brought this § 1983 civil rights lawsuit against
Stroud, the school district, Superintendent Caplinger, and
Principal Lankford. She charged inter alia that these defendants,
while acting under coler of state law, deprived her of her
constitutional rights guaranteed by the Fourteenth Amendment’s
Due Process and Equal Protection Clauses, in violation of 42
U.S.C. § 1983. Following the denial of their motions for summary
judgment on qualified immunity grounds, Caplinger and Lankford
filed this appeal. Both contend that they are entitled to qualified
immunity because: (1) Jane Doe was not deprived of any
constitutional right when she was sexually molested by Coach
Stroud; (2) even if Doe was deprived of a constitutional right, they
owed her no duty in connection with this constitutional violation;
(3) even if Doe was deprived of a constitutional right and they
owed her a duty with respect to that right, these issues of law were
not “clearly established” in 1987 when the violations took place;
and (4) in any event, their response to the situation satisfied any
duty that they owed to Doe.
— oo
13a
Appendix A
III
DUE PROCESS
A
The first step in deciding whether Caplinger and Lankford are
entitled to claim qualified immunity from this lawsuit is to
determine whether the Constitution, through the Fourteenth
Amendment’s substantive due process component, protects
school-age children attending public schools from sexual abuse
inflicted by a school employee. “Section 1983 imposes liability for
violations of rights protected by the Constitution, not for violations
of duties of care arising out of tort law.” Baker v. McCollan, 443
U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433, 443 (1979). To
state a cause of action under § 1983 for violation of the Due Process
Clause, plaintiffs “must show that they have asserted a recognized
‘liberty or property’ interest within the purview of the Fourteenth
Amendment, and that they were intentionally or recklessly
deprived of that interest, even temporarily, under color of state
law.” Griffith v. Johnston, 899 F.2d 1427, 1435 (Sth Cir.1990)
(citations omitted), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112
L.Ed.2d 701 (1991). “The Supreme Court has expanded the
definition of ‘liberty’ beyond the core textual meaning of that term
to include [not only] the. . . privileges [expressly] enumerated by
the Bill of Rights, [but also] the ‘fundamental rights implicit in the
concept of ordered liberty’ and ‘deeply rooted in this Nation’s
history and tradition’ under the Due Process Clause.” /d.; see also
Bowers v. Hardwick, 478 U.S. 186, 191, 106 S.Ct. 2841, 2844, 92
L.Ed.2d 140, 146 (1986); Hewitt v. Helms, 459 U.S. 460, 466, 103
S.Ct. 864, 869, 74 L.Ed.2d 675, 684-85 (1983); Moore v. City of
East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52
L.Ed.2d 531, 539-40 (1977).
l4a
Appendix A
The Due Process Clause of the Fourteenth Amendment
provides that no state shall “deprive a person of life, liberty or
property without due process of law.” The Supreme Court has
noted: “Although a literal reading of the Clause might suggest that
it governs only the procedures by which a State may deprive
persons of liberty, for at least 105 years, at least since Mugler v.
Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 [in 1887], the
Clause has been understood to contain a substantive component as
well... .” Planned Parensiwwod v. Casey, ___ U.S. __, __, 112 S.Ct.
2791, 2804, 120 L.Ed.2d 674, 695 (1992) (citation omitted). This
substantive component of the Due Process Clause “protects
individual liberty against ‘certain government actions regardless
of the fairness of the procedures used to implement them.’ ”
Collins v. City of Harker Heights, __ U.S. __, __, 112 S.Ct. 1061,
1068, 117 L.Ed.2d 261, 273 (1992) (quoting Daniels v. Williams,
474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662, 668
(1986)).
Jane Doe’s substantive due process claim is grounded upon
the premise that schoolchildren have a liberty interest in their
bodily integrity that is protected by the Due Process Clause of the
Fourteenth Amendment and upon the premise that physical sexual
abuse by a schoo! employee violates that right. This circuit held as
early as 1981 that “(t]he right to be free of state-occasioned
damage to a person’s bodily integrity is protected by the fourteenth
amendment guarantee of due process.” Shillingford v. Holmes, 634
F.2d 263, 265 (Sth Cir.1981). Shillingford involved a § 1983 action
by a tourist against a New Orleans police officer. Shillingford was
attending Mardi Gras festivities in New Orleans when he
attempted to take a photograph of the officer making an arrest. The
officer was annoyed and struck Shillingford with his nightstick,
inflicting some physical injury. We found such action sufficient “to
transcend the bounds of ordinary tort law and establish a
ihre Sane es aa ada ci ci
15a
Appendix A
deprivation of constitutional rights.” Jd. at 266.
We cited Shillingford for this principle of law in Jefferson v.
Ysleta Independent School District, 817 F.2d 303, 305 (Sth
Cir.1987), a case involving a violation of a schoolchild’s
substantive due process rights by a teacher. The teacher in
Jefferson lashed a second grade student to a chair for the better part
of two school days. Again, we found that such actions by the
teacher violated the student’s substantive due process “ ‘right to be
free of state-occasioned damage to [her] bodily integrity.’ ” Jd.
(quoting Shillingford, 634 F.2d at 265). We have also held that the
infliction of “corporal punishment in public schools ‘is a
deprivation of substantive due process when it is arbitrary,
Capricious, or wholly unrelated to the legitimate state goal of
maintaining an atmosphere conducive to learning.’” Fee v.
Herndon, 900 F.2d 804, 808 (Sth Cir.) (quoting Woodward v. Los
Fresnos Indep. Sch. Dist., 732 F.2d 1243, 1246 (Sth Cir.1984)),
cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 233 (1990).
If the Constitution protects a schoolchild against being tied to
a chair or against arbitrary paddlings, then surely the Constitution
protects a schoolchild from physical sexual abuse — here, sexually
fondling a 15-year old school girl and statutory rape — by a public
schoolteacher. Stroud’s sexual abuse of Jane Doe, earlier detailed
in this opinion is not contested by the defendants. Thus, Jane Doe
clearly was deprived of a liberty interest recognized under the
substantive due process component of the Fourteenth
Amendment.’ It is incontrovertible that bodily integrity is
3. Although the appellants seem to argue that in its opinion in DeSh-ney v.
Winnebago County Department of Social Services, 489 U.S. 189, 198-200, 109 S.Ct.
998, 1005-06, 103 L.Ed.2d 249, 260-62 (1989), the Supreme Court overruled the
portion of Jefferson declaring the existence of such a substantive due process right,
(Cont'd)
16a
Appendix A
necessarily violated when a state actor sexually abuses a
(Cont'd)
such a view is a serious misreading of DeShaney's. In DeShaney, achiid was rendered
comatose by injuries inflicted by his own father, a private (as opposed to state) actor.
The plaintiffs argued that because the state had notice of the possibility of abuse of the
child, and in fact had intervened in the relationship (obviously ineffectively) before
the final episode of abuse, it deprived the child of his right to protection afforded by
substantive due process. The Court categorically rejected this argument on the
ground that nothing in the Due Process Clause requires the state to protect its citizens’
liberty interests against invasions by private actors.
The Court then went on to address the plaintiffs’ alternative argument, and it is
this portion of the opinion from which the appellants seek support for their position
that they owed no constitutional duty to Jane Doe. The DeShaney plaintiffs argued
that even if the Due Process Clause does not protect citizens from injuries by private
actors (which actually assumes that no violation of a constitutional right even
occurred), an affirmative duty on the part of the state may nonetheless arise out of
“special relationships” created between the state and particular individuals, i.e., that
the state had a duty to protect particular individuals in its charge. It is in this context —
addressing an argument advocating a derivative constitutionally-based duty on the
part of the state to protect citizens from harm by private actors if those citizens stand in
a “special relationship” to the state — that the Court suggested that state officials’
duty to protect citizens under the Due Process Clause was limited to those persons
whose freedom has been affirmatively restrained by the state.
The appellants seem to argue that because schoolchildren cannot be said to be
affirmatively restrained by the state merely because they are compelled to attend
school, no “special relationship” arises between the schoolchild and the state, and
thus the child possesses no substantive due process rights in his status as a public
school student. The cited remarks from the DeShaney court simply do not address the
issues involved in this case. First, DeShaney does not suggest that individuals,
whether “under the state's care” or not, have no due process rights against an
offending state actor. Consequently, DeShaney does not in the slightest diminish the
constitutional due process rights belonging to Jane Doe against Lynn Stroud. Second,
DeShaney is possibly relevant to the constitutional duty imposed on Caplinger and
Lankford, but only if an affirmative duty to protect students from constitutional
violations is placed on them, aduty which even Jane Doe disavows.
canted
17a
Appendix A
schoolchild and that such misconduct deprives the child of rights
vouchsafed by the Fourteenth Amendment.‘ Obviously, there is
never any justification for sexually molesting a schoolchild, and
thus, no state interest, analogous to the punitive and disciplinary
objectives attendant to corporal punishment, which might support
it.°
4. Lankford and Caplinger argue first that Stroud’s actions were not taken
under color of state law. They rely on D.T. by M.T. v. Independent School District No.
16, 894 F.2d 1176 (10th Cir. 1990). in which a teacher molested three students during
the summer while engaged in a fundraising campaign for a basketball camp. The
school made it clear to the teacher thai the fundraising activity was not a school
program but rather was organized as a community volunteer effort. In this case,
however, Stroud took full advantage of his position as Doe's teacher and coach to
seduce her. He required Doe to do little or no work in the classroom and still gave her
A's. He also spoke to one of Doe's other teachers about raising her grade in that class.
Stroud was also Doe's basketball coach and he exploited that position as well. The
first physical contact Stroud had with Doe was after a basketball game in November
1986 when he grabbed her and kissed her. Stroud’s physical contact with Doe
escalated thereafter. During the next several months Stroud took Doe from his
classroom to an adjoining lab room where he kissed <nd petted her. During that same
period of time Stroud also met Doe in the school's fieldhouse where similar activity
took place.
As the court in D.T. recognized, if a “real nexus” exists between the activity out
of which the violation occurs and the teacher's duties and obligations as a teacher,
then the teacher's conduct is taken under color of state law. /d. at 1188. As
demonstrated by the above facts, the nexus that was missing in D.T. was clearly
present in this case. We therefore reject the school officials’ argument that Stroud’ s
acts were not under color of state law.
5. Thus, those cases in this circuit that have held that the infliction of excessive
corporal punishment does not violate due process are inapposite. See, e.g., Fee v.
Herndon, 900 F.2d 804 (Sth Cir.), cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112
L.Ed.2d 233 (1990).
18a
Appendix A
B
Having concluded that Stroud’s physical sexual abuse of Jane
Doe violated her constitutional right to substantive due process, we
next must decide whether school officials, like the appellants in
this case, owe any duty to a schoolchild when a subordinate
violates that child’s constitutional rights. Section 1983 provides a
claim against anyone who, “under color of” state law, deprives
another of his or her constitutional rights. 42 U.S.C. § 1983; see,
e.g., Collins v. City of Harker Heights, ___ U.S.___,__, 112 S.Ct.
1061, 1066, 117 L.Ed.2d 261, 270 (1992).
In Monell v. New York City Department of Social Services, 436
U.S. 658, 691-94, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611, 635-38
(1978), the Supreme Court held that Congress intended § 1983 to
apply to local government entities as well as to persons. The Court,
however, also held that local governments cannot be held liable
under § 1983 on a respondeat superior theory. Similarly, we have
held that supervisory officials may not be found vicariously liable
for the actions of their subordinates under § 1983.° Lopez v.
Houston Indep. Sch. Dist., 817 F.2d 351, 355 (Sth Cir. 1987) (citing
Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (Sth Cir.1985)).
This circuit has held that supervisors can be liable for “gross
negligence” or “deliberate indifference” to violations of their
6. The dissent argues that the Supreme Court in Rizzo v. Goode, 423 U.S. 362,
96 S.Ct. 598, 46 L.Ed.2d 561 (1976), determined that a supervisor could not be liable
for a mere failure to act; a supervisor must have engaged in affirmative conduct in
order to be held liable. We do not read Rizzo so broadly and neither does the Supreme
Court. In Monell, 436 U.S. at 694 n. 58,98 S.Ct. at 2037 n. 58, 56 L.Ed.2d at 637 n. 58,
the Court read Rizzo as having decided “that the mere right to control without any
control or direction having been exercised and without any failure to supervise is not
enough to support § 1983 liability.” Rizzo therefore does not preclude liability fora
supervisor who in fact controls a subordinate or who fails to supervise a subordinate.
i
j
4
i
‘
4
/
H
19a
Appendix A
subordinates. In Hinshaw v. Doffer, 785 F.2d 1260, 1262 (Sth
Cir. 1986), Hinshaw sued both the police chief and his deputy for
the deputy’s excessive use of force in arresting Hinshaw, who had
come to the police station to investigate a report that the police had
arrested and roughed up his son. We established a three-part test for
supervisory liability in which, “the plaintiff must show that: 1) the
police chief failed to supervise or train the officer, 2) a causal
connection existed between the failure to supervise or train and the
violation of the plaintiff’s rights, and 3) such failure to supervise or
train amounted to gross negligence or deliberate indifference.” Jd.
at 1263.
In Lopez, we applied these same principles when we adopted a
narrow duty on the part of school officials: a duty not to “callously
disregard” a student’s constitutional rights. Jd. 817 F.2d at 355. The
Lopez panel, throughout its opinion, interchangeably used the
terms “callous disregard,” “deliberately indifferent,” “grossly
negligent,” and “callous indifference.” In addition, in a case
involving a municipality’s alleged failure to train its employees,
the Supreme Court rejected the gross negligence standard of
liability in favor of the stricter’ deliberate indifference standard.
City of Canton v. Harris, 489 U.S. 378, 381, 388, 109 S.Ct. 1197,
1200-01, 1204, 103 L.Ed.2d 412, 421-22, 426 (1989). The Court’s
reasoning in assessing a municipality’s liability leads us to use the
same standard in assessing an individual supervisor's liability
under § 1983.
In Canton, the Supreme Court held that a municipality is
7. Although these terms are sometimes used interchangeably, “gross
negligence” and “deliberate indifference” involve different degrees of certainty, on
the part of an actor, that negative consequences will result from his act or omission.
Whereas the former is a “heightened degree of negligence,” the latter is a “lesser form
of intent.” Germany v. Vance, 868 F.2d 9, 18 n. 10(1st Cir.1989).
20a
Appendix A
responsible in certain circumstances under § 1983 for a failure to
train its employees that results in the violation of a plaintiff's right
to receive necessary medical attention while in police custody. /d.
The Court explained, however, that such liability, predicated on a
violation of the plaintiff’s right under the Due Process Clause of
the Fourteenth Amendment, depends on a showing of (1) a
“deliberately indifferent” policy of training that (2) was the
“closely related” cause of the violation of the plaintiff’s federally
protected rights. /d. at 388, 391, 109 S.Ct. at 1204, 1206, 103
L.Ed.2d at 426, 428. The Court explained that “to adopt lesser
standards of fault and causation” would result in de facto
respondeat superior liability for municipalities:
In virtually every instance where a person has
had his or her constitutional rights violated by a
city employee, a § 1983 plaintiff will be able to
point to something the city ‘could have done’
to prevent the unfortunate incident. Thus,
permitting cases against cities for their ‘failure
to train’ employees to go forward under § 1983
on a lesser standard cf fault would result in de
facto respondeat superior liability on
municipalities — as a result we rejected in
Monell.
Id. at 392, 109 S.Ct. at 1206, 103 L.&d.2d at 428 (citation omitted).
The Court further explained that lesser standards of fault and
causation would require the federal courts endlessly to “second-
guess” the wisdor: of municipal training programs, a task
inappropriate for the federal iudiciary. Jd. One commentator has
suggested a third reason for the Court’s holding: “{OJnly when
training deficiencies are the result of deliberate indifference will
the trier of fact be able to conclude that inadequate training was the
2la
Appendix A
actual or ‘closely related’ cause of the violation of the plaintiff’s
federal rights.” Martin A. Schwartz & John E. Kirklin, 1 Section
1983 Litigation: Claims, Defenses, and Fees § 7.9, at 372 (2d ed.
1991).
The most important difference between City of Canton and
this case is that the former dealt with a municipality’s liability
whereas the latter deals with an individual supervisor’s liability.
The legal elements of an individual’s supervisory liability and a
political subdivision’s liability, however, are similar enough that
the same standards of fault and causation should govern. A
municipality, with its broad obligation to supervise all of its
employees, is liable under § 1983 if it supervises its employees ina
manner that manifests deliberate indifference to the constitutional
rights of citizens. We see no principled reason why an individual to
whom the municipality has delegated responsibility to directly
supervise the employee should not be held liable under the same
standard. Other circuits have reached substantially the same result.
See Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir.1989)
(“Although the issue here is one of individual liability rather than
of the liability of a political subdivision, we are confident that,
absent official immunity, the standard of individual liability for
supervisory public officials will be found to be no less stringent
than the standard of liability for the public entities that they serve.”
(footnote omitted)); Greason v. Kemp, 891 F.2d 829, 837 (11th
Cir. 1990); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725
(3d Cir. 1989) (Stoneking IT), cert. denied, 493 U.S. 1044, 110 S.Ct.
840, 107 L.Ed.2d 835 (1990); Jane Doe “A” v. Special Sch. Dist.,
901 F.2d 642 (8th Cir. 1990).
There are other differences between Canton and this case. For
example, City of Canton involved a different kind of supervisory
liability, failure to train, from that involved here. Moreover, the
plaintiff in City of Canton alleged a violation of her substantive due
22a
Appendix A
process right to receive medical attention whereas the plaintiff in
this case alleges a violation of her substantive due process right to
be free from sexual abuse. The similarities between the cases,
however, are more important than the differences: Both cases
involve alleged failures of supervisors to prevent substantive due
process violations occasioned by their subordinates.* Thus, in
Gonzalez v. Ysleta Independent School District, 996 F.2d 745, 753-
60 (Sth Cir.1993), we applied City of Canton to an elementary
school student’s § 1983 claim against a school district for
supervisory failures that led to a teacher’s violation of her
substantive due process right to bodily security.” We concluded
that the school district could be held liable for supervisory failures
resulting in the molestation of the student only if those failures
“manifested a deliberate indifference to the welfare of the school
children.” Jd. “96 F.2d at 760. We therefore hold that a school
official’s liability arises only at the point when the student shows
that the official, by action or inaction, demonstrates a deliberate
indifference to his or her constitutional rights.
8. Even if the underlying constitutional violation were different from that
involved in City of Canton, the deliberate indifference standard for liability would
apply. As the Supreme Court explained, this standard of liability derives from the
language of § 1983, which provides a remedy against anyone who, undercolor of state
law, “causes” another to be subjected to a violation of his or her constitutional nights.
City of Canton, 489 U.S. at388 n. 8, 109 S.Ct. at 1204 n. 8, 103 L.Ed.2d at 426 n. 8. In
contrast, the standard of liability in a case against the actual perpetrator of a
constitutional violation derives from the particular constitutional provision at issue,
not from § 1983. Daniels v. Williams, 474 U.S. 327, 329-30, 106 S.Ct. 662, 664, 88
L.Ed.2d 662, 667 (1986); Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745,759 (Sth
Cir. 1993).
9. The school district conceded that the elementary school teacher's
molestation of one of his students violated her “constitutional right to person!
security.” Gonzalez, 996 F.2d at 750 n. 6.
7 ‘
23a
Appendix A
Using this standard, we adopt the following test, which
determines the personal liability of school officials in physical
sexual abuse cases. A supervisory school official can be held
personally liable for a subordinate’s violation of an elementary or
secondary school student’s constitutional right to bodily integrity
in physical sexual abuse cases if the plaintiff establishes that:
(1) the defendant learned of facts or a pattern of
inappropriate sexual behavior by a subordinate
pointing plainly toward the conclusion that the
subordinate was sexually abusing the student; and
(2) the defendant demonstrated deliberate indifference
toward the constitutional rights of the student by
failing to take action that was obviously necessary
to prevent or stop the abuse; and
(3) such failure caused a constitutional injury to the
student.
ts
We must next consider these legal principles in the context of
qualified immunity. Under the shield of qualified immunity,
Caplinger and Lankford cannot be held liable under § 1983 unless
(1) Jane Doe’s liberty interest under the substantive due process
component of the Fourteenth Amendment, and (2) Caplinger’s and
Lankford’s duty with respect to Jane Doe’s constitutional right
were “clearly established” at the time these events took place. See
Stem v. Ahearn, 908 F.2d 1,5 (Sth Cir. 1990), cert. denied, 498 U.S.
1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). For a constitutional
right to be clearly establish<d, “[t]he contours of the right must be
24a
Appendix A
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987).
The term “clearly established” does not necessarily refer to
“commanding precedent” that is “factually on all-fours with the
case at bar,” or that holds the “very action in question” unlawful.
Jefferson, 817 F.2d at 305 (footnote omitted); Anderson, 483 U.S.
at 640, 107 S.Ct. at 3039, 97 L.Ed.2d at 531. Rather, a
constitutional right is clearly established if “in the light of pre-
existing law the unlawfulness [is] apparent.” Anderson, 483 U.S. at
640, 107 S.Ct. at 3039, 97 L.Ed.2d at 531. Put another way,
officials must observe “general, well-developed legal principles.”
Jefferson, 817 F.2d at 30S.
Lankford and Caplinger argue, first, that the underlying
constitutional right, to be free of sexual abuse, was not clearly
established in 1987. Second, they assert thai even if the underlying
constitutional right was clearly established in 1987, their duty
under § 1983 not to be deliberately indifferent to a subordinate’s
violation of that right was not clearly established.
The “contours” of a student’s substantive due process right to
be free from sexual abuse and violations of her bodily integrity
were clearly established in 1987. In 1987 this court held that it was
clearly established in 1985 that the Due Process Clause protects a
schoolchild from being lashed to a chair for the better part of two
days for “instructional purposes.” Jefferson, 817 F.2d at 305. As
the panel in this case noted, Judge Posner has observed:
There has never been a section 1983 case
accusing welfare officials of selling foster
children into slavery; it does not follow that if
25a
Appendix A
such a case arose, the officials would be
immune from damages liability. . . .
K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990).
This case involves similarly egregious and outrageous conduct.
Indeed, this much seems crystal clear: No reasonable public school
official in 1987 would have assumed that he could, with
constitutional immunity, sexually molest a minor student. !°
Not only was the underlying violation clearly established in
1987, but Lankford’s and Caplinger’s duty with respect to that
violation was also clearly established at that time. In Lopez, a
student who was knocked unconscious during a fight on a school
bus sued the bus driver’s supervisors under § 1983, alleging that
the supervisors’ failure to properly train the driver resulted in the
driver’s failure to break up the melee and render medical
assistance. 817 F.2d at 353, 355. In that case, we held that the
10. The appellants’ citation to Spann v. Tyler Independent School District, 876
F.2d 437,438 (Sth Cir. 1989), cert. denied, 493 U.S. 1047, 110S.Ct. 847, 107 L.Ed.2d
841 (1990), is unavailing. The fact that we “assume” a duty for purposes of writing an
opinion, as we did in Spann, does not support a conclusion that no duty existed.
Citing Martherne v. Wilson, 851 F.2d 752, 759 (Sth Cir. 1988), Lankford and
Caplinger also argue that when a right must be reexamined in the light of new
precedent, it is not “clearly established” within the meaning of Anderson. Thus, they
attempt to find significance in the fact that the Supreme Court vacated and remanded
another sexual abuse case, Stoneking v. Bradford Area School District, 856 F.2d 594
(3d Cir. 1988) (Stoneking 1), with instructions to reconsider the school
administrator's claims of qualified immunity in the light of the DeShaney opinion.
See Smith v. Sioneking, 489 U.S. 1062, 109 S.Ct. 1333, 103 L_Ed.2d 804 (1989).
Matherne, however, is distinguishable because it involved a question of whether a
public employee could engage in political activity an issue that requires a difficult
balancing of interests and has resulted in conflicting case law. Matherne, 851 F.2d at
756-59.
26a
Appendix A
supervisors could be found liable if they “callously disregarded,”
or were “grossly negligent” to, the student’s right to bodily
integrity and if their failure to train resulted in the violation of that
right. Jd. at 355. Our cases before Lopez, although arising under
somewhat different circumstances, also acknowledged a duty on
the part of supervisors not to be grossly negligent or deliberately
indifferent to constitutional violations perpetrated by their
subordinates. For example, in Wanger v. Bonner, 621 F.2d 675 (Sth
Cir. 1980), we upheld a trial court’s instruction that a sheriff could
be liable for his deputies’ activities even though he did not
participate in them, “if you find that he failed to adequately
supervise or train his deputies, thus causing a violation of
plaintiffs’ civil rights.” Jd. at 680. In Bowen v. Watkins, 669 F.2d
979, 988 (Sth Cir. 1982), we observed generally that:
Although supervisory officials cannot be held
liable solely on the basis of their employer-
employee relationship with a tortfeasor, they
may be liable when their own action or
inaction, including a failure to supervise that
amounts to gross negligence or deliberate
indifference, is a proximate cause of the
constitutional violation.
We also held that a municipality's supervisory liability for a police
officer's violation of a citizen’s constitutional rights depended ona
showing that, among other things, the municipality displayed
“gross negligence amounting to conscious indifference.”
Languirand v. Hayden, 717 F.2d 220, 227 (Sth Cir. 1983), cert.
denied, 467 U.S. 1215, 104S. Ct. 2656, 81 L.Ed.2d 363 (1984); see
also Hinshaw v. Doffer, 785 F.2d 1260 (Sth Cir. 1986).
In the face of this precedent, Lankford and Caplinger point to
27a
Appendix A
no authority from this circuit involving school officials which
would enable them to reasonably believe, in 1987, that they could
be deliberately indifferent to their subordinate’s violation of a
student’s constitutional rights and escape supervisory liability
under § 1983. In fact, Lopez and our earlier cases arguably
announced a broader duty on the part of school officials than we
adopt today. See Lopez, 817 F.2d at 355. By narrowing the duty that
§ 1983 imposes on supervisors, the courts have not affected its
Status as “clearly established.”
D
Having established that Jane Doe’s constitutional right to
bodily integrity and the appellants’ duty with respect to that right
were clearly established in 1987 when these events occurred, we
must determine whether, on the record before us, Lankford and
Caplinger have established that they satisfied their duty to Doe,
and are thus entitled to summary judgment as a matter of law.'"
The plaintiff in this case has adduced clear summary judgment
evidence of deliberate indifference by defendant Lankford toward
her constitutional rights.'* By 1987, Lankford had certainly
11. Because this case is on appeal from the denial of a motion for summary
judgment, we review the record de novo. We are required to review the facts in the
light most favorable to the nonmoving party—here, Jane Doe. See International
Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1263 (Sth Cir. 1991), cert. denied, __
U.S. __, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992). Any disputes of fact are therefore
resolved in Jane Doe's favor. See id.
12. Deliberate indifference will often be a factladen question—as it is in this
case—and, consequently, it is impossible for us to draw bright lines in such an
inquiry. Wecan foresee many good faith but ineffective responses that might satisfy a
school official’ s obligation in these situations, e.g., warning the state actor, notifying
(Cont'd)
28a
Appendix A
received notice of a pattern of inappropriate behavior that had been
committed by Stroud that suggested misconduct of a sexual nature.
He had spoken with Stroud two years earlier, in 1985, about being
“too friendly” with a particular female student. He had received
complaints from parents about Stroud’s favoritism toward certain
girls in the classroom. The school librarian reported Stroud’s
inappropriate behavior with female students to Lankford on two
occasions, and at one point described the incident she witnessed as
“child molestation.” More importantly, Lankford received
knowledge that Stroud was directing his inappropriate sexual
behavior specifically toward Doe. He had heard about Mickey
Miller’s report of Stroud’s misconduct with freshman girls,
including Jane Doe, at a school basketball game. A jury could find
that Lankford then received a clear signal that Stroud and Doe were
engaged in a sexual relationship when Brittani B. gave him the
valentine in February 1987. Later that year, Lankford received
(Cont'd)
the student’s parents, or removing the student from the teacher's class. Indeed, if
Lankford had sternly warned Stroud early on to stay away from Doe or risk
termination and Lankford then received no later indication of further misconduct, the
standard of deliberate indifference would be difficult to establish.
It has been suggested that our opinion today might force a school official to
subject himself to liability by acting on incomplete information. This
misinterpretation should be corrected. Surely an official does not expose himself to
liability by reporting the information to a superior; or by advising a subordinate state
actor of rumors or information that the official has received and warning the actor that
severe disciplinary action will be taken if the rumors are confirmed; or if plausible
information of misconduct continues to come to his attention to investigate such
information; or if disputes arise as to the reliability of that information, to hold a
hearing—closed door, if justified —to resolve such disputes. In short, there are many
courses of action open to a school official that negate deliberate indifference but do
not expose the official to liability on grounds of taking premature disciplinary action
against a state actor.
29a
Appendix A
reports about Stroud’s inappropriate behavior with Doe at the Corn
Festival and learned that Doe’s parents had discovered Stroud’s
autographed photographs in Doe’s possession. Thus, under the
facts construed in the light most favorable to Jane Doe and
considering all the information Lankford received about Stroud’s
relationship with Doe, she has satisfied the first prong of the test
with respect to defendant Lankford—knowledge of facts or a
pattern of inappropriate sexual behavior by Stroud pointing plainly
toward the conclusion that he was sexually abusing Doe.
Doe has also illustrated, in a manner sufficient to survive a
summary judgment motion, that Lankford demonstrated deliberate
indifference to the offensive acts by failing to take action that was
obviously necessary to prevent or stop Stroud’s abuse. When
certain parents complained about Stroud’s favoritism, Lankford
suggested that their children were “jealous” of the favorite
students. Lankford similarly dismissed the librarian’s report of
“child molestation.” In perhaps the most striking example of his
apathy, he responded to Brittani B.’s presentation of the
valentine—which he admitted appeared to bear Stroud’s
handwriting—by transferring Brittani (not Jane Doe) out of
Stroud’s class. He never bothered to discuss the valentine incident
with Caplinger, Stroud, Doe, or Doe’s parents. He did not record
any of these complaints of inappropriate conduct in Stroud’s
personnel file. He did not take the obvious steps of removing Doe
from Stroud’s class and directing Stroud to stay away from Doe.
Both Stroud and Doe stated that they did not begin having sexual
intercourse until late March or early April 1987. A jury could
reasonably conclude that had Lankford taken actions that were
obviously necessary in response to the valentine—indeed, if he
had responded at all—the relationship might have been derailed at
that point and the violation of Jane Doe’s rights would not have
been as severe or prolonged. Thus, Jane Doe has, in a manner
sufficient to withstand a motion for summary judgment, stated a
30a
Appendix A
claim under § 1983 that defendant Lankford was deliberately
indifferent to his subordinate’s violation of her constitutional right
to bodily integrity."
With respect to whether defendant Caplinger is immune from
this lawsuit, however, the evidence presented tells a different story.
The first time Caplinger heard of any potential misconduct by
Stroud was when he received the report from Mickey Miller in
February 1987. He promptly notified Lankford and instructed him
to speak with Stroud about the incident. There is no evidence that
Lankford informed Caplinger at that time about Stroud’s past
behavior, and it is undisputed that Lankford never documented any
of the reports he had received about Stroud.
Caplinger did not receive any other reports about Stroud until
June 1987, when two parents reported the Corn Festival incident to
him. Again, Caplinger promptly responded by contacting the
parents of one of the allegedly misbehaving students reportedly at
the festival. He was assured that the accused student was not even
at the event. We cannot say that Caplinger’s decision not to pursue
the investigation further, after the parents assured him that their
child had not even attended the Corn Festival, exhibited deliberate
indifference.
13. Lankford argues that his conduct, as a matter of law, could not have
manifested deliberate indifference to the violation of Doe’s constitutional rights
because he met with Stroud two times in response to complaints about Stroud’s
activities. These facts, however, are subject to varying interpretations. A jury could
conclude, for example, that one meeting never took place, because Stroud had no
memory of it; similarly, a jury might conclude that the other meeting resulted not from
Lankford’ s initiative, but because of Caplinger’s involvement. Although Lankford is
certainly free to make these arguments at trial, they are unavailing at the state of
summary judgment.
3la
Appendix A
When Doe’s parents met with Caplinger concerning the
photographs of Stroud in July 1987, Caplinger again responded
appropriately, if ineffectively, to the situation. He met with Jane
Doe privately and questioned her about her relationship with
Stroud. He also met with Stroud, verbally reprimanded him about
the inappropriate comments on the photographs, warned him to
keep his distance from Jane Doe, and informed him of the
consequences if the misconduct continued. .
Although after the July photograph incident Caplinger had
received notice of a pattern of inappropriate sexual behavior
sufficient to satisfy the first prong of the test, he certainly did not
respond to the misconduct with deliberate indifference. He
instructed Lankford to speak with Stroud about the incident at the
basketball game; he personally investi gated the report concerning
the Corn Festival report; and he met with Stroud immediately after
learning of the photographs, reprimanded him for his conduct, and
unequivocally warned him of the consequences if any further
misconduct was reported. His actions were ineffective, but not
deliberately indifferent. Summary judgment should have been
granted to defendant Caplinger on the grounds of qualified
immunity.
IV
EQUAL PROTECTION
The plaintiff also asserts that Stroud’s behavior toward her
violated her constitutional rights under the Equal Protection
Clause of the Fourteenth Amendment. Doe advances three separate
equal protection theories, based on two different sorts of behavior.
She first argues that the physical sexual abuse to which Stroud
subjected her constituted sexual harassment, which she argues is
32a
Appendix A
offensive to the Equal Protection Clause. Second, she contends
that Stroud’s classroom favoritism toward her also constituted
sexual harassment. Finally, she argues that the classroom
favoritism constituted the more typical form of disparate gender
discrimination, which the Supreme Court has found to be
prohibited by the Equal Protection Clause. Following these
theories, Doe argues that Caplinger and Lankford should be liable
because, as in the case of her due process claim, they were
deliberately indifferent to the unconstitutional conduct that caused
her injury.
Assuming that Stroud sexually abused Doe, which the
defendants do not contest, Stroud violated Doe’s substantive due
process rights as a matter of law. Doe does not claim that the
damages that she could recover from Lankford based on Stroud’s
alleged violation of her equal protection rights would be any more
extensive than the damages that she could recover based on the
substantive due process violation. Nor does she argue that, or show
how, Caplinger could be supervisorily liable for equal protection
violations predicated on Stroud’s sexual abuse when he is not
supervisorily liable for substantive due process violations
involving the same conduct. Consequently, we need not reach the
question of whether Doe states an equal protection claim.
V
The sole question before us is the propriety of the district
court’s denial of qualified immunity to the appellant school
officials. The school officials’ main argument that the liability of a
school official for ignoring a subordinate’s sexual abuse of a 15-
year old student was not clearly established in 1987.
Appellants, however, agree that by 1987 the Constitution
33a
Appendix A
clearly protected the most hardened criminal inmate from abuse by
his guard and imposed liability on the guard’s supervisor who was
consciously indifferent to such abuse. Similarly, appellants cannot
seriously contest that the § 1983 liability of a police chief was not
clearly established in 1987 when the chief was consciously
indifferent to his officer’s physical abuse of a citizen. In short,
supervisory liability for deliberate indifference to constitutional
violations committed by subordinates was clearly established
when the events in this case occurred. Consequently, the school
officials’ argument that with constitutional immunity they could
ignore the teacher/coach’s physical sexual abuse of an
impressionable 15-year old student is, as a practical matter
perverse, and, as a legal matter, not supported by the case law. Such
an argument neither legally nor logically makes any sense.
For the reasons stated above, we affirm the district court’s
order denying qualified immunity to defendant Lankford and
reverse the district court’s order denying qualified immunity to
defendant Caplinger. We also remand this case to the district court
for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part and REMANDED.
34a
Appendix A
PATRICK E. HIGGINBOTHAM, Circuit Judge, with whom
POLITZ, Chief Judge, joins specially concurring:
The complex and interrelated roles played by state and federal
law in Fourteenth Amendment jurisprudence require subtle, often
Byzantine, analysis. True to form, the legal basis of this case is
complex. Not so true to form, the judgment it demands is simple.
This is a case about power and its abuse. The state conferred the
power and Stroud abused it. That Coach Stroud exceedea the
constitutional limits of his authority, and that Principal Lankford
caused a violation of Doe’s rights by looking away, are truths too
plain to admit of uncertainty, legal or otherwise. We have never
understood the Fourteenth Amendment to permit such a misuse of
state power. I therefore join the majority opinion.
The majority and dissents divide today over the “law,” but that
division rests largely on different perceptions of the human
condition. We have all looked at the same set of facts and come
away with quite different perceptions of what transpired between
teacher and pupil. The majority sees an exploitation of power and
the dissents see causal sex. Make no mistake about it. This case is
not about a high school coach who happened to have an affair with
a student. It is about abuse of power.
Our dissenting colleagues lodge carefully drafted and cogent
objections, although I remain persuaded that the majority has it
“right.” With no burden to stitch together an agreement of a
majority, a burden well-carried by Judges Jolly and Davis, I am
free to engage the dissents by writing separately and to add a gloss
to the majority’s reasoning.
i
3
es ie
en
35a
Appendix A
I.
In Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986), we set out
three steps necessary to drawing the circle of liability under 42
U.S.C. § 1983. As we noted, section 1983 provides in pertinent
part: “Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State. . . subjects, or causes to
be subjected, any . . . person within the jurisdiction [of the United
States] to the deprivation of any rights ... secured by the
Constitution and laws, shall be liable to the party injured... .”
Viterna, 795 F.2d at 1204 (citing 42 U.S.C. § 1983) (emphasis and
alterations in original). We have interpreted section 1983 to require
a court to determine whether a rights violation occurred, whether it
occurred under color of state law, and whether the particular state
actor or actors before the court caused the violation. /d. at 1209.
A
I first ask whether Doe’s rights were violated. Jd. I conclude
with the majority that they were. The majority and Judge
Garwood’s dissent agree today that the Due Process Clause of the
Fourteenth Amendment affords Doe a liberty interest in her bodily
integrity, protected from certain unwarranted state deprivations.
See Shillingford v. Holmes, 634 F.2d 263, 265 (Sth Cir. 1981). This
protection extends to a student’s right to be free from corporal
punishment in school if arbitrary, capricious, or wholly unrelated
to a legitimate state purpose. Fee v. Herndon, 900 F.2d 804, 808
(Sth Cir.), cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d
233 (1990) (citations omitted). The right also protects a fifteen-
year old student from a teacher who uses his authority to sordid
sexual ends. See Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d745,
75) (Sth Cir. 1993) (acknowledging student’s right to be free from
sexual abuse by teacher). See also Jefferson v. Ysleta Indep. Sch.
al haat
36a
Appendix A
Dist., 817 F.2d 303, 305 (Sth Cir. 1987) (recognizing student’s
“right to be free of state-occasioned damage to [the student’s]
bodily integrity”) (citation and internal quotation marks omitted).
Judge Jones argues that a child has no constitutionally
protected interest in being free from physical sexual abuse by a
teacher who uses his position of authority to seduce her. I
respectfully disagree with that result and the methodology behind
it. She quotes but does not apply the Supreme Court’s
pronouncement in Michael H. that, “the term ‘liberty’ in the Due
Process Clause extends beyond freedom from physical restraint.”
Michael H. v. Gerald D., 491 U.S. 110, 121, 109 S.Ct. 2333, 2340,
105 L.Ed.2d 91 (1989) (citing Pierce v. Society of Sisters, 268 U.S.
510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) and Meyer v. Nebraska,
262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). We have held
that a student has a right to be free from corporal punishment
inflicted in a way that is “arbitrary, capricious, or wholly unrelated
to the legitimate state goal of maintaining an atmosphere
conducive to learning.” Woodard v. Los Fresnos Indep. Sch. Dist.,
732 F.2d 1243, 1246 (Sth Cir. 1984). The physical sexual abuse
here was, then, a fortiori a deprivation of Doe’s liberty interest. I
do not see how Coach Stroud’s use of his position of authority to
pressure and manipulate Doe into sex could be other than arbitrary
and capricious. It served no legitimate state goal. Judge Jones at
times appears to recognize our long history of using state and
federal law to determine the traditions and conscious of our
people.’ She is correct to do so. The deeper the mark of disapproval
1. See Jones Dissent slip op. at 2899 n. 4 (concurring in Judge Garwood's
dissent); id. slip op. at 2902 n. 8 (“ Although all of the states maintain criminal laws
against statutory rape, not all of them set the age of consent at the age of fifteen. In
some of the states, the age of consent is lower. This poscs an interesting question: has
the majority made a constitutional offense of conduct that is some states is not
criminal?”) (citation omitted).
er
37a
Appendix A
that state and federal civil and criminal law have placed on
Stroud’s acts, the stronger the cise that Doe’s liberty interest is
fundamental See Michael H., 491 U.S. at 122, 109 S.Ct. at 2341.
Whether a foundation in state and federal laws and their history is
either necessary or sufficient for the recognition of a right may be
contested, That such a foundation supports recognition of a right is
uncontroversial.”
Nevertheless, Judge Jones rests her claim that the Constitution
does not afford Doe protection in part on the fact that state and
federal laws provide Doe a remedy for her complaints. J udge Jones
concludes, “The attention that this ‘right’ has received throughout
state and federal statutory and common law demonstrates a history
of ordered deliberation and strongly suggests that Doe’s right is not
‘fundamental’ in the sense that Doe needs the additional armature
of constitutional common law to protect her.” Jones Dissent slip
op. at 2902 (footnote omitted). Judge Jones claims that Doe has no
2. Compare footnote 6 of Justice Scalia’s opinion in Michael H. in which the
Chief Justice joined, 491 U.S. at 127 n. 6, 109 S.Ct. at 2344 n. 6 ( arguing that in
evaluating a potential liberty interest courts should look “to the most specific level at
which a relevant tradition protecting, or denying protection to, [an] asserted rightcan
be identified”), with Justice O’Connor’s concurrence in which Justice Kennedy
joined, 491 U.S. at 132, 109 S.Ct. at 2346 (approving the use of tradition in explicating
the Due Process Clause of the Fourteenth Amendment but rejecting “the most specific
level” of generality as the sole appropriate “mode of historical analysis”) and Justice
Brennan's dissent in which Justices Marshall and Blackmun joined, 491 U.S. at 139,
109 S.Ct. at 2350 (noting that “the historical and traditional importance of . . .
interests in our society” informs, but does not dictate, the decision to recognize them
as liberty interests). Perhaps the one point of consensus on the Court is that a history of
state and federal laws protecting an interest lends credence to the claim that it falls
within the protective scope of the United States Constitution. But cf. Hudson v.
McMillian, ___U.S.__,__, 112 S.Ct. 995, 1010-11, 117 L.Ed.2d 156 (1992) (Thomas,
J., dissenting) (noting robust protection of right by state common law in concluding
that right is not protected by Eighth Amendment of United States Constitution).
38a
Appendix A
‘constitutional right because she does not need one; state and
federal laws shield her.
The existence of state law protecting an interest does not,
however, diminish the force of a claim for constitutional
protection. See Snowden v. Hughes, 321 U.S. 1, 11, 64 §.Ct. 397,
402, 88 L.Ed. 497 (1944) (“state action, even though illegal under
state law, can be no more and no less constitutional under the
Fourteenth Amendment than if it were sanctioned by the state
legislature”). See also United States v. Raines, 362 U.S. 17, 25, 80
S.Ct. 519, 524, 4 L.Ed.2d 524 (1960) (“It makes no difference that
the discrimination in question, if state action, is also violative of
state law.) (citing Snowden). State law may cure a constitutional
violation by providing adequate post-deprivation state remedies,
but only where the state may at times constitutionally infringe the
interest at stake. Justice Powell recognized this distinction in
Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711
(1977). See Parratt v. Taylor, 451 U.S. 527, 542-43, 101 S.Ct.
1908, 1916, 68 L.Ed.2d 420 (1981). See also Fee v. Herndon, 900
F.2d 804, 808 (Sth Cir. 1990); Woodard v. Los Fresnos Indep. Sch.
Dist., 732 F.2d 1243, 1245 (Sth Cir. 1984).
Justice Powell in /ngraham established a two-stage analysis
of a student's right to be free from corporal punishment. See
Ingraham, 430 U.S. at 672, 97 S.Ct. at 1413. First, one asks
whether protected interests are implicated. /d. at 672-74, 97 S.Ct.
at 1413-14. Second, one asks whether the person who suffered the
deprivation was accorded due process of law. /d. at 674-82, 97
S.Ct. at 1414-18. At the second stage the existence of protective
state and federal law undermines, rather than supports, the
conclusion that a due process violation has occurred. Only after we
have recognized a fundamental liberty interest do we look to state
law to see if an infringement of that interest has occurred without
due process. See id. at672,97 S.Ct. at 1413.
I eh SE TL A a et Ming A ae ie ah Pais abd ging
39a
Appendix A
Justice Powell noted in /ngraham, “Were it not for the
common-law privilege permitting teachers to inflict reasonable
corporal punishment on children in their care, and the availability
of the traditional remedies for abuse, the case for requiring
advance procedural safeguards would be strong indeed.” /d. at
674, 97 S.Ct. at 1414 (footnote omitted). As the state never has a
legitimate basis for inflicting physical sexual abuse on a child. no
set of procedural safeguards whether available before or after such
a violation would meet the requirements of due process. Justice
Powell's reasoning in Ingraham supports this conclusion: “If the
common-law privilege to inflict reasonable corporal punishment
in school were inapplicable, it is doubtful whether any procedure
short of a trial in a criminal or juvenile court could Satisfy the
requirements of procedural due process for the imposition of such
punishment.” /d. at 674 n. 44, 97 S.Ct. at 1414 n. 44 (citations
omitted).
Unlike in the case of corporal punishment, even “a trial in a
criminal or juvenile court” prior to the infliction of physical sexual
abuse on a child would not meet the requirements of due process.
As physical sexual abuse of a student is never warranted. no
process suffices to vitiate the rights violation such abuse involves.
While state law vindicating Doe’s liberty interest may comfort, it
offers no basis for concluding that her interest is not fundamental
or that her rights were not violated. There are powerful arguments
that 42 U.S.C. § 1983 was not intended to reach episodic acts not
sanctioned by state law or custom. Nevertheless. the Supreme
Court rejected that reading in Monroe v. Pape, 365 U.S. 167. 81
S.Ct. 473, 5 L.Ed.2d 492 (1961) and we are not free to adopt it.
B
The next inquiry is whether the deprivation of liberty occurred
under color of state law. I agree that it did. Stroud’s official
40a
Appendix A
interactions with Doe and his sexual involvement with her together
constituted an indivisible, ongoing relationship. The special
attention Stroud gave Doe as her teacher afforded him the
opportunity to exert his influence. He levered his authority to press
upon Doe his sexual desires, while both on and of school grounds.
He treated Doe differently than he treated other members of his
class. He gave her good grades, required of her less work than other
students, and allowed her to behave as she liked in his classroom.
This manipulative course was an abuse of power conferred by the
state. I am persuaded that Stroud acted under color of state law.
Judge Garwood’s dissent commendably recognizes the
relevance of this inquiry but contests this conclusion, relying on
D.T. v. Independent Sch. Dist., 894 F.2d 1176 (10th Cir.), cert.
denied, 498 U.S. 879, 111 S.Ct. 213, 112 L.Ed.2d 172 (1990),
where a school coach was held not to have acted under color of
state law when engaging in sexual activity with students. /d. at
1192. Unlike the defendant in D.T., however, Stroud was Doe’s
teacher before, during, and after their sexual liaison. See id.at 1191
(emphasizing that teacher was on vacation when molestation
occurred in reaching conclusion that he did not act under color of
state law).
The importance of Stroud’s position as Doe’s teacher becomes
clearer when one considers Judge Garwood’s contention that
Stroud did not exchange formal rewards for sexual favors from
Doe. From that factual premise Judge Garwood suggests that —
Stroud may not have acted under color of state law. Judge
Garwood's contention is tenable but not persuasive. The approval
which Stroud conferred on Doe is both one of the most common
and one of the most effective tools employed by teachers in
affecting the behavior of their students. It is precisely this use by
Stroud of his position of authority to which I point. The very
ODL Aelita El ats A REN He re ch
Mis Skit
4la
Appendix A
official nature of this attention facilitated his efforts—and indeed
enabled him—to violate her rights.
Judge Garza’s dissent takes Judge Garwood’s view one step
further. He argues that a state actor must exercise state authority,
and not merely act in an official position, before the courts will
recognize action under color of state law. Again, the Supreme
Court has rejected this approach. In Monroe, the Court dismissed
the notion that “ ‘under color of’ enumerated state authority
excludes acts of an official or policeman who can show no
authority under state law, state custom, or state usage to do what he
did.” Monroe v. Pape, 365 U.S. at 172, 81 S.Ct. at 476.
Judge Garza, however, offers a subtle distinction. To find that
action in violation of state law remains under color of state law,
Judge Garza would require an exercise of otherwise legitimate
authority granted by the state that extends beyond permissible
limits. A state may authorize searches and seizures, for example,
while a police officer nevertheless violates the Constitution by
exceeding that authority. Under this view, violating state law while
in the pursuit of an endeavor generally approved by the state may
amount to violating the Constitution under coior of state law.
The problem under this approach becomes one of
characterization. It defines the relevant conduct of the state
officers in Monroe as excessive conduct in performing a search and
seizure. The argument continues that because the state authorizes
officers to perform searches and seizures, the officers acted under
color of state law. See Garza Dissent slip op. at 2910-11. Judge
Garza contrasts this rights violation with Stroud’s treatment of
Doe. Stroud had no authority, Judge Garza reasons, to inflict
physical sexual abuse on Doe. From this fact, Judge Garza
concludes that Stroud did not act under color of state law.
42a
Appendix A
The parallel between Stroud’s actions and those of a lawless
police officer are closer than Judge Garza’s dissent acknowledges.
Consider, for example, United States v. Price, 383 U.S. 787, 86
S.Ct. 1152, 16 L.Ed.2d 267 (1966), in which several police officers
and private citizens murdered three civil rights workers after their
release from a Mississippi jail. The Court found not only that the
officers acted under color of state law, but also that the private
citizens “were participants in official lawlessness, acting in willful
concert with state officers and hence under color of law.” Jd. at 795,
86 S.Ct. at 1157. The officers and the private citizens exercised no
legitimate authority. Their motivations were racist and therefore
based on private hatred. Moreover, there are not circumstances in
which the police may permissibly act as judge, jury, and
executioner, and none in which private citizens may play these
roles. Yet the Supreme Court’s decision in Price requires a finding
of an abuse of state authority. The decision, therefore, keeps us
from confining abuse of state authority to situations where state
actors pursue legitimate ends. Of course, Stroud’s actions are of a
different order than the stunning execution of three young civil
rights workers by officers and private citizens in Price, but his
actions nevertheless were an abuse of state authority, as I have
explained.
C
Finally, I identify the state actors responsible for the violation.
See Viterna, 795 F.2d at 1209. By definition, the deprivation of a
federally protected right as defined by federal standards creates a
federal claim. /d. Nevertheless, state law is often a source in
explicating violations of federal rights. Most familiar, perhaps, is
our drawing on state law to determine whether a claimant had a
property right protected by the Due Process Clause of he
Fourteenth Amendment. /d. (citing Cleveland Board of Education
43a
Appendix A
v. Loudermill, 470 U.S. 532, 537, 105 S.Ct. 1487, 1491, 84 L.Ed.2d
494 (1985) and Shelton v. City of College Station, 780 F.2d 475,
482 (Sth Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91
L.Ed.2d 566 (1986)). State law allows us “to identify the persons
responsible for [the] identified civil rights violation.” Jd. State law
is of course implicit in the conclusion that the state vested the
‘ coach with the authority he abused. State law is more obviously at
work when we move beyond the immediate actor. To put the matter
differently, state law guides us in circling state actors who fairly
i can be said to have caused Doe to be subjected to the rights
violation. Caution is necessary because section 1983 imposes
liability only upon persons who cause a deprivation; state law does
not, in other words, furnish a theory of vicarious liability. Rather, it
locates the actors—the persons. Lopez v. Houston Indep. Sch.
Dist., 817 F.2d 351, 355 (Sth Cir. 1987). A supervisor who might
have acted, but did not, cannot be found liable under section 1983
for that reason alone. Under most circumstances, the supervisor
could have prevented or stopped the rights violation in some way.
See City of Canton v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197,
1206, 103 L.Ed.2d 412 (1989) (“In virtually every instance where a
person has had his or her constitutional rights violated by a city
employee, a § 1983 plaintiff will be able to point to something the
city ‘could have done’ to prevent the unfortunate incident.”). Thus,
if inaction sufficed as the basis for a suit under section 1983, the
supervisor would effectively be vicariously liable.
eh ASR a aia ces Wi ig ah
FLOR Fat oe it AE Me alg BI RR NAS 0
eh nae ES taal
WE SER te ea
The Supreme Court has adopted a standard for determining
when a failure to act amounts-to “a ‘deliberate’ or ‘conscious’
choice by a municipality.” /d. at 389, 109 S.Ct. at 1205. The Court
requires deliberate indifference. /d. (citing Monell v. Department
of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56
L.Ed.2d 611 (1978) and Polk County v. Dodson, 454 U.S. 312, 326,
102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981)). Where a
dda
Appendix A
municipality’s inaction demonstrates deliberate indifference
toward the rights of an individual, the municipality commits an act
of omission. Its failure to act rises to the level of a conscious or
deliberate choice. Jd. See also Gonzalez v. Ysleta Indep. Sch Dist.,
996 F.2d 745, 757 (Sth Cir. 1993) (applying deliberate indifference
standard).
The majority recognizes that we apply the same standard to
supervisors. A supervisor who acts with deliberate indifference by
failing to train or oversee his subordinates may be held liable under
section 1983. See, e.g., Hinshaw v. Doffer, 785 F.2d 1260, 1262-66
(Sth Cir.1986) (applying this standard to police chief who
allegedly failed to train and supervise police officer). See also
Lopez, 817 F.2d at 355 (finding that bus driver may be liable for
acting with “callous indifference” in failing to supervise students
properly). An omission that evinces deliberate indifference toward
the violation of an individual’s constitutional rights may amount to
an act that causes the violation. Lopez, 817 F.2d at 355; Hinshaw,
785 F.2d at 1263. Lankford, the principal at Stroud and Doe’s
school, demonstrated such deliberate indifference.
Time and again Lankford ignored Stroud’s inappropriate
conduct with students. Lankford did not investigate reports and
allegations of Stroud’s indecent behavior with any rigor. Neither
did Lankford warn or discipline Stroud. On the other hand, as the
majority notes, the same cannot be said of Caplinger, the
superintendent. Caplinger took action when he became aware that
Stroud might have been acting improperly. His response was
limited, but so were his grounds for questioning Stroud’s actions.
Caplinger had less information than Lankford, and thus his
ineffective actions do not suggest the same callous attitude. I agree,
therefore, that Lankford could be held liable under section 1983
and that Caplinger cannot be.
ite Agee Su aedt a ie LR Ot ae
45a
Appendix A
Nevertheless, in reaching this conclusion the majority skips
the potentially determining role of state law at this point in the
analysis. So far we have assumed that the state placed Lankford
and Caplinger in the role of supervisors. As a result, an egregious
failure to fulfill their obligation to oversee Stroud’s behavior
would amount to action on their part. The state may, however,
impose a greater obligation. It may saddle a state official with a
specific duty to police the risk of unconstitutional acts by others.
In Bush v. Viterna, we considered whether the state imposed
such an affirmative duty on the Texas Commission on Jail
Standards. A class of inmates in Texas county jails sued under
section 1983 asking a district court to compel the Commission to
improve conditions in the county jails. 795 F.2d at 1204. In
rejecting the prisoners’ claim, we looked to state law to identify the
person or persons responsible for maintaining the jails. We found
that state law placed the county sheriffs and commissioners courts,
not the Commission, in charge of the jails. /d. at 1206. Our analysis
Suggests that had the state imposed on the Commission an
obligation to maintain the county prisons, the Commission’s
failure to fulfill that obligation would have been treated as a
deliberate or conscious choice. If that omission had resulted in the
violation of a federal right through state action, the Commission
would have been properly identified as a “state ... actor
responsible for causing the wrong.” /d. at 1209.
We adopteg the same approach to gauge the liability of a
Supervisor in Howard v. Fortenberry, 723 F.2d 1206 (Sth
Cir.1984), in which two prisoners died after being left in an
oppressively hot isolation cell for almost fifteen hours. /d. at 1209.
We relied on state law to identify the actors responsible for
ensuring that the prison did not employ this illegal form of
punishment. State law placed an affirmative duty on certain priser
ey Pay a eres Le ee ee ’
46a
Appendix A
officials to inspect the prison facilities. Jd. at 1213. The court
reversed the district court’s summary judgment in favor of these
defendants, and remanded for the district court to determine their
liability. Jd. at 1214. See also Miller v. Carson, 563 F.2d 757, 760 n.
7 (Sth Cir. 1977) (“when a state official’s violation of state law
causes [a constitutional violation], a federal cause of action arises
under 1983”) (citation omitted); Sims v. Adams, 537 F.2d 829, 831-
32 (Sth Cir. 1976) (holding that cause of action exists under section
1983 where mayor and police chief may have had obligation under
state law to supervise policeman with alleged history of racial
violence).
I would first look to state law to determine the nature of
Lankford and Caplinger’s obligations as Stroud’s supervisors. In
particular, I would ask whether the state required Lankford or
Caplinger to take specific action upon learning that Stroud may
have been sexually abusing his students. Texas places on a school
principal the duty to discipline; it also places the principal under
the supervision of the superintendent in disciplinary matters.
Tex.Educ.Code § 21.913(a)(1) (West 1994). The principal is
responsible for “submitting recommendations to_ the
superintendent concerning assignment, evaluation, promotion,
and dismissal of all personnel.” Tex.Educ.Code § 21.913(a)(2)
(West 1994). As a result, the general obligations of supervision
attach to the positions of principal and superintendent. Texas law
does not, however, make special provision for the appropriate
response of a principal or superintendent to evidence of teacher
misconduct. Consider a classroom teacher in the same school as
Coach Stroud who had full knowledge of Coach Stroud’s activities
but looked the other way. Any moral duty aside, no one suggests
that § 1983 imposes liability upon this silent teacher. This
conclusion is found in the role of state law.
san Aicheiais Uke ee ae ca ae
47a
Appendix A
In other contexts, the legislature has placed such an obligation
to take affirmative action on principals. Section 21.303 of the
Texas Education Code, for example, requires a principal to report,
or to supervise a subordinate who will report, to the local police
department reasonable grounds for suspecting the occurrence of
any of several crimes in school, on school grounds, or at school-
related functions. These activities include parole violations,
possession of illegal drugs or lethal weapons, and involvement in
organized crime. Tex.Educ.Code § 21.303(a)(1-4) (West 1994).
The state legislature could have imposed a similar requirement on
principals to investigate or report evidence suggesting that a
teacher is involved sexually with a student. Had the legislature
done so, Lankford’s passivity would have been inconsistent with
this duty, irrespective of whether he acted with deliberate
indifference. Under such circumstances, state law would support
the conclusion that Lankford caused Doe to be subjected to a ri ghts
violation at the hands of Stroud.
There is no such specific obligation under Texas law and
application of the deliberate indifference standard was
appropriate. I therefore join the majority’s judgment, accepting
Defendant Canlinger’s and rejecting Defendant Lankford’s
assertion that he is entitled to qualified immunity as a matter of law.
I agree that the school principal must on these facts take his case to
a jury. A jury may ultimately not be persuaded that Lankford acted
with the requisite level of indifference. I am not prepared to find its
absence as a matter of law.
IT.
Implicit in the rejection of Lankford’s assertion of qualified
immunity is the conclusion that his legal duty was certain when
breached. I find nothing in our cases to comfort the principal. The
48a
Appendix A
certainty of the illegality of his failure is a direct reflection of the
certainty that the abuse by the coach was itself illegal under both
state and federal! law. If it is true that Lankford was a cause of the
coach’s abuse of power because he knew and was indifferent to the
occurrence, there is no room for “legal” uncertainty. In every
practical sense of the word this school principal was a cause of the
wrong. The assertion that his “duty” to do anything was uncertain
is unconvincing.
Justice Scalia pointed out in Anderson v. Creighton,’ the
hazards of framing the legal question at too great a level of
generality. The error can be made in the opposite direction—a
search so narrowed that legal nuance rises to uncertainty and
ultimately confounds common sense. Qualified immunity reflects
the judgment that an official ought not to be mulcted for choices
made that only later prove to have been “illegal.” I don’t think we
today put any school principal in peril or unfairly second guess this
one. This was not an episodic act of an interloper to the school
scheme nor the private act of a student. Rather, it was the persistent
pattern of indefensible conduct of a school official, the principal’s
subordinate.
3. 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
NN AMEN PLN in PREM A Ht RRO URS are oto
OE ONIN St Ke DOKI AOS ener ery, Pa RPS Senha re ram
pe ae eS ae eee -
49a
Appendix A
GARWOOD, Circuit Judge, with whom EDITH d. JONES,
JERRY E. SMITH, BARKSDALE, EMILIO M. GARZA and
DeMOSS, JJ., join, dissenting in part:
I dissent from so much of our judgment as affirms the denial of
Lankford’s motion for summary judgment on the basis of qualified
immunity.'
So far as concerns Lankford, this is a pure non-feasance case.
His inaction was deplorable. He was indecisive, insensitive,
inattentive, incompetent, stupid, and weakkneed. But it was not
then clearly established and, indeed, is not even now—that mere
inaction on his part violated the United States Constitution.
Lankford, a public high school principal whose position
unquestionably involved the exercise of discretion, was
accordingly entitled to qualified immunity, as he asserted in his
motion for summary judgment. The burden then shifted to the
plaintiff “to rebut this defense by establishing that the official’s
allegedly wrongful conduct [here, inaction] violated Clearly
established law.” Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.
1992). We do “not require that an official demonstrate that he did
not violate clearly established federal rights; our precedent places
that burden upon plaintiffs.” /d.
Moreover, it is settled that an official’s violation of state
law—no matter how clearly established and plain to one in his
position—does not deprive him of section 1983 qualified
immunity if under the circumstances it was not clearly established
that his conduct violated the federal right sued on. Davis v. Scherer.
468 U.S. 183,193-95,104 S.Ct. 3012, 3019-20, 82 L.Ed.2d 139
1. I concur in the holding that appellant Caplinger, the superintendent, was
entitled to qualified immunity.
50a
Appendix A
(1984). Further, the federal right must have been clearly
established in a sufficiently “particularized” sense so that it was
then “clear that a reasonable official would understand that what he
is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,
639,107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (emphasis
added). See also, e.g., Barts v. Joyner, 865 F.2d 1187, 1194 (11th
Cir. 1989) (“Harlow’s ‘clearly established’ standard demands that
a bright line be crossed. The line is not to be found in
abstractions—to act reasonably, to act with probable cause, and so
forth—but in studying how these abstractions have been applied in
concrete circumstances.”); Colaizzi v. Walker, 812 F.2d 304, 308
(7th Cir.1987) (“whether the law was clear in relation to the
specific facts confronting the public official when he acted”)
(emphasis added).? Finally, as Judge King recently observed in a
state actor’s qualified immunity case with at least equally shocking
facts, “[t]hat the actions of which Doe complains are egregious,
however, does not mean that he has asserted the violation of a
federally protected right, as required by 42 U.S.C. § 1983.” Doe v.
State of La, 2 F.3d 1412, 1421 (Sth Cir. 1993) (concurring opinion).
Coach Stroud used, and abused, his position as a teacher to
worm his way into the affections of his fifteen-year-old student
Jane Doe so that, as the majority says, “she developed a ‘crush’ on
Stroud.” As the majority relates, by late fall 1986 Stroud and Doe
engaged in “kissing and petting,” and in January 1987 their
relationship “escalated to heavy petting and undressing” following
2. See also, e.g., KH. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.
1990) (although to defeat qualified immunity, a plaintiff need not “point toa previous
case that differs only trivially from his case,” nevertheless “[i]t is not enough, to
justify denying immunity, that liability in a particular constellation of facts could
have been, or even that it was, predicted from existing rules and decisions. . . .
Liability in that particular set [of facts] must have been established at the time the
defendant acted.”).
Ob BRA kil Cate tee ti. wigle oamabe ay > eI eet ak TS
Sla
Appendix A
an evening rock concert to which Stroud took Doe and some of her
friends, including Stroud’s daughter, also a student at the school.
Doe befriended Stroud’s daughter in order to have “a cover” for her
relationship with Stroud and “an excuse” for visiting at the Stroud
residence.’ Apparently commencing in February 1987, Doe, with
her parents’ knowledge and consent, frequently spent the night or
weekend there, ostensibly visiting Stroud’s daughter. Stroud
would kiss Doe on these occasions, and suggest that they have
intercourse. Doe refused until, on the occasion of a visit at Stroud’s
residence in late March or early April 1987, when, as the panel
opinion says, “she ‘gave into’ Stroud . . . sensing that Stroud was
getting mad at her for not having sex with him; she was afraid of
losing their friendship altogether.” 975 F.2d 137 at 140. Thereafter,
Doe continued to frequently visit at the Stroud home, and to engage
in sexual intercourse with him there. She also began to sneak out of
her house in the middle of the night to meet Stroud, and on these
occasions they would go out into the country, or into the school
field house, and engage in sexual intercourse. The panel opinion
explains that “Doe was reluctant to refuse Stroud’s sexual
advances out of fear that he would alienate her completely.” /d.
The majority concludes that by 1987 it was clearly established
that public school children “have a liberty interest in their bodily
integrity that is protected by the Due Process Clause of the
Fourteenth Amendment” — more precisely, “the substantive due
process component of the Fourteenth Amendment” — against
“physical sexual abuse by a school employee.” Expressed at this
level of generality, and assuming a not unduly broad definition of
“physical sexual abuse,” I agree, provided the employee's
offending action is taken “under color of” state law. Cf. D.T. by
M.T. v. Independent School District No. 16, 894 F.2d 1176 (10th
3. Doealso had a “cover” boyfriend, a fellow student at the school.
52a
Appendix A
Cir.), cert. denied, 498 U.S. 879, 111 S.Ct. 213, 112 L.Ed.2d 172
(1990).*
Just what sort of actions by Stroud violated this right of Doe?
The majority opinion is not entirely clear, but seems to say that it is
the sexual intercourse and related fondling. Thus, the majority says
“the Constitution protects a schoolchild from physical sexual
abuse — here, sexually fondling a fifteen-year-old schoolgirl and
statutory rape — by a public schoolteacher.” I agree that in 1987
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