# Petition for Writ of Certiorari — Lankford v. Doe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1643%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 815 ## Text 0) —s : 3 93191 8 ww - 119% 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 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 it was clearly established that, where sufficiently immature children are involved, consensual sexual relations or fondling of private parts by an adult amounted to “physical sexual abuse” for these 4. D.T. involved sexual molestation on June 13 and 14, 1984, by Epps, a teacher employed by the defendant school district, of three boys (ages 11, 11, and 13) who had been in Epps’ fifth grade class at a district school, and had been on the school’s fifth grade basketball team coached by him, during the school term that ended at the end of May 1984. The molestation occurred when the boys, with their parents’ permission, accompanied Epps, staying at his home overnight, to sell candy to raise funds for a forthcoming basketball camp that was to be operated and directed that summer by another coach of the district and was to be held on school district property. The school district had approved the use of its facilities for the camp, permitted distribution at its schools to students there of fliers and notices concerning the camp, and consented to the use of a school basketball court for fund raising activity for the camp. The school district, however, did not sponsor, organize, or manage the camp. Epps was under contract with the school district and was paid for the summer months, but had no teaching, coaching, or other duties or functions to perform for the school district during June or July 1984, and would not come back on duty until August 1984. Suit was brought on behalf of the children under section 1983 against the school district on the ground, inter alia, that it hired Epps with knowledge of or deliberate indifference to the fact that he was a homosexual with a proclivity to molest young boys, and that his hiring was the moving force behind the sexual abuse. The Tenth Circuit reversed a judgment on the jury's verdict for the plaintiffs, holding that as a matter of law “there was no state action involved when the plaintiffs were molested by Epps” and “Epps was not acting under color of state law when he molested the plaintiffs.” /d. at . 192. 53a Appendix A purposes. However, for that to be actionable under section 1983, not only must the consenting child have been sufficiently immature, but also the physical sexual abuse must have been under color of state law. It is not clearly established that age fifteen is, per se, sufficiently immature.’ Plainly Doe was of a sufficient age to bear 5. This is so whether one focuses on the sexual intercourse or the sexual fondling. In Texas, for statutory rape the child must be “younger than 17 years of age.” TEX. PENAL CODE § 22.011(c)(1). See also id., § 22.011(a)(2). However, in Louisiana Doe would have attained the age of consent for purposes of statutory rape and related offenses. See La.Rev.Stat. 14:43.1 (sexual battery; “where the other person has not yet attained fffteen years of age and is at least three years younger than the offender”); 14:43.3 (oral sexual battery; same); '4:42A(4) (aggravated rape “when the victim is under the age of twelve years”). In several other states, also, Doe would have attained the statutory rape age of consent. See MODEL PENAL CODE § 213.1, comment 6 at 323-325 (American Law Institute 1980);65 AM.JUR.2D Rape § 17 (“The age of consent has been fixed at ages varying from 10 to 18 years.”). At common law the age of consent was ten. See MODEL PENAL CODE § 213.1, comment 6 at 323. The MODEL PENAL CODE uses age ten for statutory rape, id. §§ 213.1(1)(d), 213.2(1 Xd), and age sixteen for the lesser felony of “Corruption of Minors and Seduction,” id. § 213.3(1)(a) (sexual intercourse with one less than sixteen years old where the actor is at least four years older) and for the misdemeanor of “Sexual Assault” (“touching . . . the sexual or other intimate parts . . . for the purpose of arousing or gratifying sexual desire”; where the victim is less than sixteen years old and the actor is at least four years older). See also 18 U.S.C. § 2241(c) (“sexual act with another person who has not attained the age of 12 years”); § 2243(a) (“sexual act with another person who—( 1 ) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the” offender); § 2244(a) (“sexual contact” an offense, with lesser penalty, where “sexual act” would be punishable under §§ 2241 or 2243); § 2245(2) (“sexual act” defined) & (3) (“sexual contact” defined as “touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks” with harassing or sexual (Cont'd) 54a Appendix A children. Perhaps that should not be the test and instead arguably a minimum age of sixteen, seventeen, or eighteen would make sense as a bright line for these purposes. But that is not, and was not, clearly established (see note 5, supra). Nor is it clearly established that Stroud’s physical sexual abuse of Doe was under color of state law. 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 purp_ -ted 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 (Cont'd) intent). The common law did not recognize consensual sexual battery of a minor, but in 1861 by actof Parliament the defense of consent was disallowed “for assaults upon children under the age of 16. MODEL PENAL CODE § 213.4, comment 1. At common law, the age of consent for marriage was fourteen for males and twelve for females. 52 AM.JUR.2D Marriage § 14; 55 C.J.S. Marriage § 111. In Texas for many years it was the law that, notwithstanding the statute that precluded issuance of a marriage license without parental consent where the male was under twenty-one or the female was under eighteen, “males over sixteen and females over fourteen may lawfully enter into a contract of marriage,” and that lack of parental consent as called for by referenced licensing statute did not render marriage by a male over sixteen and a female over fourteen “voidable, or invalid in any respect.” Williams v. White, 263 S.W.2d 666, 668 (Tex.Civ.App. — Austin 1954; n.r.e.). 6. And certainly Lankford was not on any notice otherwise. 7. See, e.g., City of Green Cove Springs v. Donaldson, 348 F.2d 197 (Sth Cir. 1965), where we held that a police officer’s rape of an arrestee, shortly following completion of his arrest of her, was not within the scope of his employment. We observed, citing authorities from many jurisdictions: (Cont'd) eens eg 55a Appendix A activity some sort of “quid pro quo” for scholastic or other official favors from Stroud, but was rather because she had “developed a ‘crush’ on Stroud” and did not wish to risk “losing their friendship altogether.” * This is not to say that Stroud did not use and abuse his position as a teacher, and thus arguably act under color of law, in initially causing Doe to develop a “crush” on him and in worming his way into her affections. But this is not the constitutional wrong that the majority holds that Doe has suffered and for which Lankford lacks qualified immunity; that wrong, the “physical sexual abuse—here, sexually fondling a fifteen-year-old schoolgirl and statutory rape,” came later, albeit doubtless in some sense as an ultimate result of the former conduct. Does the causal connection between the earlier “under color of law” conduct and the later otherwise purely personal and consensual relationship between this fifteen-year-old girl and Stroud cause the latter conduct to also be “under color of law”?*® In my view, an (Cont'd) “It is generally held that liability for an assault by an employee that bears no relation to the real or apparent scope of his employment or to the interest of his employer is not imposed upon the employer under the doctrine of respondeat superior.” /d. at 202. This is likewise the law of Texas, Smith v. M System Food Stores, 156 Tex. 484, 297 S.W.2d 112 (Sup. 1957), as we recognized in a recent holding that a police officer's post-arrest sexual assault of the arrestee was not within the scope of his employment. McLaren v. Imperial Casualty Co., 968 F.2d 17 (Sth Cir. 1992) (table: unpublished opinion), cert. denied, __U.S.__, 113 S.Ct. 1269, 122 L.Ed.2d 665 (1993), affirming, 767 F.Supp. 1364(N.D.Tex. 1991). 8. Again, Lankford clearly was not on any notice otherwise. 9. Forexample, in the D.T. case, see note 4 supra, the prior teacher/coach — studenv/player relationship was doubtless a causative factor in the teacher/coach’s (Cont'd) 56a Appendix A affirmative answer to that question is not and was not clearly established as a matter of constitutional law.’° : turn now to particularly consider the basis on which the majority holds that Lankford has failed to establish his entitlement to qualified immunity. (Cont'd) ability to molest the students within a couple of weeks after the end of the school term in which he had taught and coached them, but his actions were nonetheless held not to be under color of law. 10. The special concurrence takes the view that Stroud acted under color of state law in that “(t]he special attention Stroud gave Doe as her teacher afforded him the opportunity to exert his influence. . . . He gave her good grades, required of her less work than other students, and allowed her to behave as she liked in his classroom.” As the majority puts it, “all of this attention flattered Doe, and she developed a ‘crush’ on Stroud.” However, as noted in the text, even though Stroud may have acted under color of law in causing Doe to develop a “crush” on him, that did not invade or violate her constitutional liberty interest in “bodily integrity” or to be free from “physical sexual abuse.” Certainly there was—and— is—no clearly established law to the contrary. The invasion of bodily integrity here the intercourse and sexual fondling was not a quid pro quo for official favoritism from Stroud (and neither the majority nor the special concurrence claim otherwise), but was consensual if Doe was competent to consent to such conduct. Contrary to the implication of the special concurrence, Doe's age is hence highly relevant, indeed crucial, and it cannot be clearly established that Stroud’s “physical sexual abuse” was under color of law merely because t was an eventual outgrowth of the “crush.” No even remotely analogous decision is cited even tending to suppor? such a holding. The approach of the special concurrence would necessarily find a constitutional invasion in the state college professor-adult student setting where the teacher abused her official position to cause the student to develop a “crush” on her and as an eventual result the two later had consensual sexual relations while the college was in session. Surely it is not clearly established that such wholly consensual sexual relations are under color of law or a violation of the adult student’s right to bodily integrity. We have turned the concept of “clearly established” on its head. 57a Appendix A The majority (fn. 3) does not take the position that school officials have “an affirmative duty to protect students from Constitutional violations” arising out of a “special relationship” between the state and the students in its public schools analogous to that existing between the state and those in its institutional custody, such as prisoners, as discussed in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195-98, 109 S.Ct. 998, 1003-1005, 103 L.Ed.2d 249 (1989). Certainly, no such principle can be regarded as clearly established." Notwithstanding this disclaimer of a “special relationship” affirmative duty, the majority proceeds to impose on Lankford an affirmative duty—not to fail with deliberate indifference to act— of the very same kind imposed in favor of prisoners on prison supervisors, respecting protection not only from other inmates, but also from the actions of guards and from various conditions of confinement. See Wilson v. Seiter, __ U.S. __, 111 S.Ct. 2321115 L.Ed.2d 271(1991). The majority’s decision as to Lankford is not grounded on the assumption that the evidence supports a finding that Lankford took any action or did anything affirmative that played any part in causing Stroud’s physical sexual abuse of Doe. The majority does not contend that Stroud’s physical sexual abuse of Doe came about because Stroud had received Lankford’s tacit or implied approval 11. Post-DeShaney, at least three circuits have held that the public school setting does not give rise to a “special relationship” imposing a due process affirmative duty to protect students. See Maldonado v. Josey, 975 F.2d 727, 730-733 (10th Cir.1992), cert. denied,__ U.S. __, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993); D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1371-72 (3d Cir. 1992) (en banc), cert. denied, _ U.S. _, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); J.O. v. Alton Community Unit Sch. Dist. 11,909 F.2d 267,272 (7th Cir. 1990). 58a Appendix A of such conduct.'* Indeed, the three-part test that the majority devises to determine personal liability of supervisors contains no element of affirmative conduct, communication of condonation or authorization, or the like on the supervisor’s part. Such a test, applied outside of the “special relationship” context, is essentially inconsistent with the Supreme Court’s decision in Rizzo v. Goode, 423: U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Third Circuit so held in Chinchello v. Fenton, 805 F.2d 126, 133 (3rd Cir. 1986), stating: “In Rizzo v. Goode, 432 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the Supreme Court addressed and rejected the argument that a supervising public official has an affirmative constitutional duty to supervise and discipline 12. I note that there is no evidence Stroud's earlier unduly familiar conduct with other female students ever involved physical sexual abuse. The majority does not contend that there is any evidence that, apart from Jane Doe, Stroud ever violated any student’s constitutional due process nght to be free from physical sexual abuse. The majority does refer to the May 1986 incident in the darkened library copy room when the librarian observed “Stroud lifting the female students onto a table and catching them as they jumped off of the table into his arms.” While the librarian may have used the term “child molestation” in discussing this incident with Stroud, her testimony was not that she thought Stroud was sexually molesting the students; she rather stated “I just thought he was being too playful with them, I guess, in a wrong way.” The majority also notes evidence that on or about the same day in October 1987 that Caplinger suspended Stroud, another female student reported to her mother, who advised Caplinger, that “Stroud had grabbed the student’ s buttocks in class that day.” There is no evidence of the truth of this allegation and, in any event, it relates to a matter well after the fact. Further, there is no evidence that any School District official oremployee other than Stroud ever engaged in physical sexual abuse of any student. 59a Appendix A so as to prevent violations of constitutional rights by his or her subordinates. It held that even where a pattern of constitutional violations by subordinates is shown, supervising officials do not violate the constitutional rights of the victims of such misconduct unless they have played an ‘affirmative part’ in that misconduct. /d. at 377,96 S.Ct. at 607. In Commonwealth of Pennsylvania v. Porter, 659 F.2d 306 (3d Cir.1981), cert. denied, 458 U.S. 1121, 102 S.Ct. 3509, 73 L.Ed.2d 1383 (1982), this court, sitting in banc, again addressed the issue of whether there is an affirmative constitutional duty to supervise.... We held that to be legally responsible, supervising officials ‘must have played an affirmative role in the deprivation of the plaintiffs’ rights,’ noting that ‘the officials’ misconduct cannot be merely a failure to act.’ 659 F.2d at 336. Because ‘the Council members’ official acticns constitute[d] no more than inaction and insensitivity,’ 659 F.2d at 337, we concluded that they had not violated the plaintiffs’ rights despite their knowledge of a pattern of misconduct by one of their subordinates.” .. . Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 60a Appendix A 1646, 71 L.Ed.2d 876 (1982) ... held, once again, that while supervising public officials may not in any way authorize, encourage, or approve constitutional torts, they have no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct. It is true .. . that some Courts of Appeals have been more willing than ours to infer supervisory approval of unconstitutional conduct from inaction on the part of the supervisor. ... The courts taking this view, however, have found liability only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be found to have communicated a message of approval to the offending subordinate.” (Footnote omitted; emphasis added). The Third Circuit reaffirmed the Chinchello analysis of Rizzo and its progeny in Brown v. Grabowski, 922 F.2d 1097, 1119-1120 (3d Cir. 1990), cert. denied __ U.S. __, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991). Contrary to the implication in the majority opinion, the same principles were affirmed by the Third Circuit in Stoneking v. Bradford Area School District, 882 F.2d 720 (3rd Cir. 1989) (Stoneking II), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990), although the panel split as to their application fe 7 =e Bas a a eae P+ 6la Appendix A to the particular facts in that case. Stoneking II was a suit by a female public school student complaining that the school’s band director, Wright, “used physical force, threats of reprisal, intimidation and coercion . .. to force her to engage in various sexual acts” some of which “occurred in the band room at the school and on trips to band functions.” /d at 722. The Third Circuit majority held that Smith, the school principal, and Miller, the assistant principal, were not entitled to summary judgment on the basis of qualified immunity, but that the superintendent of the school district, Shuey, was entitled to summary judgment on that basis. Reviewing Rizzo, Chinchello, and related cases, the majority summed up the relevant law as being that “although the mere failure of supervisory officials to act or investigate cannot be the basis of liability,” nevertheless “such officials may not with impunity maintain a custom, practice or usage that communicated condonation or authorization of assauJtive behavior.” /d. 882 F.2d at 730.'° The panel majority conciuded that there was sufficient evidence for a jury to find that affirmative conduct and policies of Smith and Miller “amounted to a communication of condonation” to Wright and that there was an “affirmative link” between the plaintiff's “injury and policies and practices that Smith and Miller employed and affirmative acts they took in furtherance of them.” Id. at 731 (emphasis added).'* On the other hand, Superintendent 13. The dissent did not disagree with these principles, but felt that their application to the particular facts there warranted summary judgment in favor of ail the individual supervisor defendants. /d. at 731-32. 14. The evidence relied on included testimony by female student and band member Judith Grove Showers that she was “sexually assaulted by Wright in 1979 and reported the incident to Miller and Smith” and that Smith told her it was her fault. Id. at 727. She and her father further testified that thereafter Miller presented her “with the option of recanting her story in front of the band or withdrawing from all band activities... the band was assembled and she was called before it for this purpose, but fled from the room in tears.” /d. at 728. The Third Circuit observed: (Cont'd) 62a Appendix A Shuey was entitled to summary judgment because the case against him amounted to “mere ‘inaction and insensitivity’ on his part” and the court could not “discern from the record any affirmative acts by Shuey on which Stoneking can base a claim of toleration, condonation or encouragement of sexual harassment by teachers.” Id. at 731 (emphasis added). Similarly, in J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267 (7th Cir. 1990), the court considered a section 1983 complaint against supervisory public school officials, including the principal and superintendent, alleging that one Lester Mann “sexually molested” the plaintiff school children “while employed as a teacher” at their school. /d. at 268. The complaint proceeded (Cont'd) “As the district court noted, it could be inferred that ‘the “forced apology” served as a trump card in the hands of Edward Wright,’ who could threaten his other victims with similar treatment if they reported his actions, . . and Stoneking in fact testified that she did not report Wright's assaults because ‘I knew about Judy Grove and what happened.” ™ /d. Moreover, in Stoneking there was also another teacher in the same school who engaged in physical sexual abuse of female students. One victim of this other teacher testified that she promptly reported the incident to Miller and Smith, who told her “it would be her word against the teacher's and that she should not tell her parents.” Id. at 727 (emphasis added). At least five complaints, by different female student victims, were made to Miller and Smith concerning “sexual assaults” by teachers and staff members at the school. Corrective action was not taken. /d. at 728-29. In one of the incidents, Smith suggested to the victim that she might be “framing” the teacher. /d. at 728. Notwithstanding this showing and nothing remotely comparable is shown here—the Stoneking // panel was divided in its denial of qualified immunity to the principal and assistant principal, though unanimous in favor of the superintendent. 63a Appendix A on the basis that the defendants had “an affirmative duty to provide for their safety,” but the Court rejected that theory, even though the offending actor was a public school teacher, and held that the complaint was insufficient because it did “not allege that any of the named school defendants participated in any acts of child molestation. In addition, the plaintiffs do not allege that the school defendants promoted school policies that ‘encourage[ed] a climate to flourish where innocent [children] were victimized.’ ” Jd. at 271-272, citing Stoneking II. Likewise, the Sixth Circuit has recognized that mere inaction by a supervisor, even when actually aware of a governmental subordinate’s constitutional violations, does not afford a sufficient basis for liability under section 1983. Thus, in Poe v. Haydon, 853 F.2d 418, 429 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989), the Court stated: “On the issue of § 1983 liability of supervisory personnel, Hays v. Jefferson County, 668 F.2d 869 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982), established that a supervisory official’s failure to supervise, control, or train the offending individual is not actionable, unless the supervisor ‘either encouraged the specific incident of misconduct or in some other way directly participated in it.’ /d. at 874. See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845,105 S.Ct. 156, 83 L.Ed.2d 93 (1984). Poe’s sexual harassment claim fails on this latter score. Even assuming the allegations in her complaint are true, she has not averred that 64a Appendix A ‘any of the supervisory officials who [are] defendants in this case actively participated in or authorized any harassment’ by Henderson. Bellamy, 729 F.2d at 421. At best, she has merely claimed that the appellants were aware of alleged harassment, but did not take appropriate action. This is insufficient to impose liability on supervisory personnel under § 1983. /bid.” (Emphasis added). Similar expressions can be found in the decisions of this Court. See, for example, the following from Reimer v. Smith, 663 F.2d 1316, 1323-24 (Sth Cir. 1981): “In Wanger v. Bonner, 621 F.2d 675 (Sth Cir. 1980), we stated 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.’ . . . 5. In Watson, supra (Watson v. Interstate Fire and Casualty Co., 611 F.2d 120 (Sth Cir. 1980)], a plaintiff filed a § 1983 suit for her arrest, incarceration, and subsequent commitment to a mental hospital. She sued the deputies who arrested her, and also suec the sheriff of the Parish for failure to supervise his deputies. The court held that this was an insufficient basis for liability under § 1983, absent the sheriff's involvement in a pattern of activity designed to deny the plaintiff her constitutional rights, citing Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606, 46 L.Ed.2d 561 (1976).” 3 , .™ a - Py I ; ; NPR ET a dyiod fs” oe Te ee ee ote Ee eet AT Tan ge Wd iAoiRSR FAR dei RSM Lil Sealed otha aw a Nidan : Al . : / ian ith 65a Appendix A As Reimer’s footnote 5 observes, Watson, 611 F.2d at 123, specifically relied on Rizzo. Likewise, the similar statement in Wanger that “failure to adopt policies to prevent constitutional violations . . . would not be an adequate basis for [a supervisor’s] liability under § 1983,” id., 621 F.2d at 680, was also expressly based on Rizzo. Similarly we stated in Ford v. Byrd, 544 F.2d 194, 195 (Sth Cir. 1976), that a police chief is liable for the acts of his subordinates only if he directs, orders, participates in, or approves the acts.” (Emphasis added). And, in Vela v. White, 703 F.2d 147, 153 (Sth Cir. 1983), the opinion of the district court, which we said “we hereby adopt,” states: “... @ supervisory official cannot be liable merely for failing to adopt policies to prevent constitutional violations; however, he can be held liable if he affirmatively adopts policies which are wrongful or illegal. Reimer v. Smith, 663 F.2d 1316,1323 (Sth Cir.1981); Wanger v. Bonner, 621 F.2d 675 (Sth Cir.1980). See also Rizzo v. Goode, 423 U.S. 362, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1643%3A1. Public record. Not legal advice.