Amicus Curiae Brief — Lankford v. Doe

Bayes: Set, Ue

(3) FILED

No. 93-1918 JUN 28 R94

Citit

In the

Supreme Court of the United States

October Term, 1993

Eddy Lankford,

Petitioner,

Vv.

Jane Doe,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FIFTH CIRCUIT COURT OF APPEALS

BRIEF AMICI CURIAE OF

TEXAS ASSOCIATION OF SCHOOL BOARDS,

TEXAS ASSOCIATION OF SCHOOL

ADMINISTRATORS,

TEXAS COUNCIL OF SCHOOL ATTORNEYS

AND THE MISSISSIPPI SCHOOL

BOARDS ASSOCIATION

IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

PATRICIA AHEARN

Counsel of Record PERRY SANSING

Texas Association of Brunini, Granthan,

School Boards Grower & Hewes

P.O. Box 400 General Counsel

Austin, TX 78767-0400 Mississippi School

(512) 467-0222 Boards Association

238 East Capitol

CAROLYN M. HANAHAN Jackson, MS 39201

TASB Staff Attcrney (601) 948-3101

TABLE OF CONTENTS

page

py me a kre |

ee SS a rn |

REASONS FOR GRANTING THE WRIT ..... 3

ARGUMENT . o 3s * * _ o . o 7 aa . . ° . o 7

Introduction we tee ee ee cae ee ee

I. The holding of the Fifth Circuit

Court of Appeals could have

significant negative effects

on local governments... .......9

A. The resources of local

governments are not

po ee ee eee

1. An imposition of liability

in this and similar cases

would require an inequitable

reallocation of resources. .. 9

2. There must be a line at

which a public official's

actions are no longer under

a ae ee ee re © |

a. Governmental entities

could be liable for

all acts taken by

employees in their

DEEWEEG 2A0GEs ss a ts tld

b. If this teacher's acts

were under color of state

law, then virtually every

act of a government

employee will be

II.

Iii.

A.

ii

characterized as under

color of state law. ..

Our government is premised

on a separation of powers,

but Doe v. Taylor threatens

this balance. . + « «eee

The court below has declined

to follow a substantial line

of precedents, threatening the

reliability of our legal

SYSCGM. « « 6 4 2 he Oe 6 6 8

Under the new standard in

the Fifth Circuit,

supervisors are

unconditionally liable

for the actions of their

subordinates. « + « #» « e

By imposing liability

for failure to act,

the Fifth Circuit

essentially established a

negligence standard for

supervisors under

Sectig@h B0G8i s.4 2 6 0

1. Negligence does not

implicate the Fourteenth

Amendment and should

not be the basis for

Section 1983 liability. ..

2. The requisite affirmative

link between the

supervisor's conduct

and the subordinate's

misconduct was disregarded

by the court below. ... .

3. Congress has amended

the Civil Rights Act but

16

18

20

24

24

24

28

iii

has refrained from adding

liability for nonfeasance. .- 31

B. Imposing liability on

someone who has neither

committed an offense

nor has any actual

knowledge or notice

of the constitutional

violation sends an unclear

message. «© 2+ 2+ ee 4 2 * 8 .32

1. This holding establishes

no clear standard of

conduct for supervisory

officials. .-+-+-+**#*** ae

2. Without notice of

possible harn, it is

impossible to prevent

that harm. --<++*+***°¢ * .39

3. Hindsight is a luxury

unavailable to supervisory

school officials;

liability for nonfeasance

would be totally

impracticable when

there is insufficient

os 6 ss s * ¢.8 0 « 4 41

CONCLUSION . . ° . . ° 7” . . 7 7 . . . . 43

iv

TABLE OF AUTHORITIES

CASES: page

City of Canton,

Ohio v. Harris,

489 U.S. 378 (1989). . ... ..- 8,318,26,36

D.F. BY 4.F. V.

Indep. Sch. Dist.

No. 16, 894 F. 2d

1176 (10th Cir.),

cert. denied,

ee ee ee es, . «tw ct st et te SS D8

Doe v. Taylor Indep.

Sch. Dist., 15 F. 3d 443

Cee eer, Rs a sc + 2 o oO 87, 28, 36,37

Daniels v. Williams,

474 U.S. 327 (1986)... -« « « «24,25,26,39

DeShaney v. Winnebago

Crunty Dep't.of Social

Services, 489 U.S. 189 (1989). ... .7,17

Farmer v. Brennan,

62 U.S.L.W. 4446 (U.S.

oume 6, 1994). « «© «© «© © «© 0 «© « £26,35,36,37

Gates v. Unified

Sch. Dist. No. 449,

996 F.2d 1035

(2Gee Cars 2983). « « « « 22,24,25,27,35,38

Jane Doe "A" v. Special

Sch. Dist.of Saint Louis

County, 901 F.2d 642

[em Gabe BeWOds «© 6 se 6 oe to eo 24,27,35,38

Mitchum v. Foster, 407

U.S. 225 (1972). . a es — . es . - * . -19

Vv

Monell v. New York City

Dep't. of Social

Services, 436 U.S.

GSB A978) 0 ks ew 8 0 ce te tl ht B,12,133,;21,28

Monroe v. Pape, 365 U.S.

167 (1961), rev'd. on

other grounds, sub. nom.

Monell v. New York City

Dep't. of Social

Services, 436 U.S. 658 (1978). ..... .12

Rizzo v. Goode, 423

i - 362 (1976). = - 7 . 7 o . 7 s -8,19

Rochin v. California,

342 U.B. 365 €AOSA). «© « ew te et tlh hl hl he

Sample v. Diecks, 885

5.2 AO0e tae Gi. 2008). 0 «8 es

Screws v. U.S., 325

om ee > ee ee ee ae ee a ee ee ee ee ee eee

Stoneking v. Bradford

Area School Dist.,

882 F.2d 720 (3rd Cir.

1989), cert. denied,

sub nom. Smith v.

Stoneking, 493 U.S.

ie Bes a et a 4 ee

Woodward v. City

of Worland, 977 F.

2d 1392 (10th Cir.),

cert. denied,113

eR SS ee ee a

CONSTITUTIONAL PROVISIONS

AND STATUTES:

U.S. Constitution,

Oe a ee

vi

42. U.S.C. § 1983

femme 2962). 24 s sw eo we ec oe 6 ee ON

Tex. Educ. Code Ann.

S Beceetm, Gweme A9G7T)« «© w cw oe eee 8 ee

OTHER AUTHORITIES:

Sheldon H. Nahmod, Civil

Rights And Civil

Liberties Litigation:

The Law Of Section

popes Cae Gee Bes 0 ct ew owe 8 ee eee

No. 93-1918

In the

Supreme Court of the United States

October Term, 1993

Eddy Lankford,

Petitioner,

Vv.

Jane Doe,

Respondent.

BRIEF AMICI CURIAE OF

TEXAS ASSOCIATION OF SCHOOL BOARDS,

TEXAS ASSOCIATION OF SCHOOL ADMINISTRATORS,

TEXAS COUNCIL OF SCHOOL ATTORNEYS, AND THE

MISSISSIPPI SCHOOL BOARDS ASSOCIATION

IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI*

INTEREST OF AMICI

Amicus Curiae, the Texas Association of

School Boards ("TASB"), is a nonprofit

unincorporated association of the public

school districts of the State of Texas. All

of the 1052 public school districts in the

State, through their elected boards of

‘Consent of the parties is on file with the clerk of this Court.

2

trustees, have joined as members of TASB.

Under state law, the board of trustees of a

school district has “the exclusive power to

manage and govern the public free schools of

the district." Tex. Educ. Code Ann. §

23.26(b) (West 1987). The members of TASB

thus are responsible for the management and

governance of the public schools of Texas,

consistent with state and federal law.

Amicus Curiae, the Texas Association of

School Administrators ("TASA"), represents

the state's school superintendents and other

echool administrators who are responsible

for carrying out the educational policies

adopted by their local boards of trustees.

Amicus Curiae, the Texas Council of

School Attorneys (the ="Councii”) . is

composed of attorneys who represent more

than 90% of the public school districts of

Texas.

Amicus Curiae, the Mississippi School

Boards Association ("MSBA"), is a nonprofit

3

corporation of the public school districts

of the State of Mississippi. All 149 public

school districts in Mississippi, through

their appointed or elected school boards,

are members of MSBA. The members of MSBA are

responsible for management and governance of

the public schools in Mississippi,

consistent with state and federal law.

STATEMENT OF THE CASE

Amici incorporate by reference thereto

the statement of the case contained in brief

of Petitioner.

REASONS FOR GRANTING THE WRIT

The implications of the lower court's

decision will have substantial and

detrimental effects upon our nation's public

school system, a system that is already

experiencing widespread and intensifying

problems. The court below interpreted

"under color of law" to encompass all

actions taken by a governmental employee,

even those exclusive to his or her private

4

made the insurer of student well-being under

strained interpretations of civil rights law.

STATEMENT OF THE CASE

Amici incorporate by reference thereto

the statement of the case contained in brief

of Petitioners.

REASOWS FOR GRANTING THE WRIT

For school districts the implications of

the decision in this case are vast. The same

analysis used by the lower court in the case

at bar is being followed by numerous other

courts to hold school districts and school

supervisory cfficials liable under Section

1983 for their alleged negligence in

supervising teachers and other personnel. The

cases invoke the same theory to hold school

districts and supervisory personnel liable for

injuries to students whether the actions

allegedly causing the injuries were committed

by employees or by other students, and whether

or not the injuries occurred off campus or on

campus and even impose liability for actions

|

~%

hich, if true as alleged, were nothing more

han negligent.

ARGUMENT

I. Introduction

Amici are, of course, deeply disturbed

. about the despicable conduct of the

eacher/coach in this case. Amici and school

Wboards and principals across the country are

orking diligently to develop mechanisms to

Sprevent this kind of conduct and to prevent

even the appearance of inappropriate behavior

@by school employees. For example, Amicus NSBA

§currently sits on an advisory board to the

}American Bar Association's Center on Children

}and the Law in its project, funded by the U.S.

| Department of Justice, to develop mechanisms

| to screen employees who deal with children,

including children in private and public

) schools. NSBA also has a number of

} resolutions on this issue, developed by its

Delegate Assembly composed of school board

6

members from every state in the Union. One of

these reads as follows:

NSRA urges state legislatures and

agencies to assist school districts

in developing methods for

preventing, detecting and reporting

child abuse. State laws that

require reporting of suspected child

abuse should also grant immunity for

liability for reports made in good

faith. School boards should develop

policies on this subject that

protect both the students and the

due process rights of any involved

employees. They should also

institute in-service training

programs for employees and education

programs for students.

In addition, NSBA's Council of School

Attorneys has recently published a monograph

entitled Child Abuse: Legal Issues for

Schools. A copy of the publication is lodged

with the Clerk.

The lower court's zeal to compensate

Respondent for her devastating injury is

understandable, but the Fourteenth Amendment

and Section 1983 were not designed to protect

the citizenry from all manner of wrongs, even

if perpetrated by a public employee. The

7

lower court erred in concluding that the U.S.

Constitution guarantees students a substantive

right to be free from tortious conduct

committed by school district employees.

Furthermore, even if the lower court were

correct in the holding on the constitutional

issue, the mechanism of attributing

responsibility for the injuries in this case

is not in accord with Supreme Court precedent.

The "deliberate indifference" standard should

be applied only in the criminal context.

I. New constitutional rights should be

established by this Court and not by

courts of appeals. This Court's

continued silence on the issue of whether

students have a substantive due process

right to bodily integrity in the schools,

is being misconstrued by lower courts to

allow conversion of state tort actions

into Fourteenth amendment cases.

A. Although this Court has never held

that students have a substantive due

process right to bodily integrity,

the Fifth Circuit in the instant

case holds that the right is

"clearly established."

Se The Fifth Circuit's

determination of a new

constitutional right does not

coincide with this Court's

8

historically sparing use of

substantive due process

analysis to protect interests

in the penumbra of explicit

rights and which have been

Geprived by the state through

statute or an ongoing official

practice.

The concept of "substantive due process"

encompasses fundamental rights expressly

enumerated in the Constitution, e.g., the

First Amendment rights of free speech and

assembly and free exercise of religion, and

interests in the penumbra of enumerated

rights, such as the right of privacy, Griswold

v. Connecticut, 381 U.S. 479 (1965) (use of

contraceptives) interpreted to be in the

penumbra of the right of free association; and

to overturn state statutes which implicate

liberty interests and are arbitrary and

without reasonable basis, e.g., Meyer v.

Nebraské, 26> U.S. 390 (1923) (involving the

liberty interest in educating one's children

in the school of one's choosing); Pierce v.

Society of Sisters, 268 U.S. 510 (1925)

(involving the right to study a foreign

language). All of these cases involved state

statutes.

This Court has been reluctant to find

substantive due process implications in cases

which do not involve statutes. In Wood v.

Strickland, 420 U.S. 315 (1975), the Supreme

Court vacated the judgment of the court of

appeals which found a substantive due process

violation in a school board's alleged

misinterpretation of its rule against the

possession of alcoholic beverages on school

grounds. This Court stated that "[{i]t is not

the role of the federal courts to set aside

decisions of school administrators which the

court may view as lacking a basis in wisdom or

compassion." 420 U.S. at 326.

In 1982, in a per curiam opinion, this

Court reversed another attempt by the same

court of appeals, through the use of

substantive due process, to substitute its own

judgment for that of the school board. Board

aaa aaa in

10

of Education of Rogers, Ark. v. McCluskey, 458

U.S. 966 (1982).

A medical student argued in the case of

Regents of University of Michigan v. Ewing,

474 U.S. 214 (1985), that he had a property

interest in a medical school program which

gave rise to a substantive due process right

to continued enrollment free from arbitrary

state action. The Court ruled that the

decision to dismiss the student was not

arbitrary even if it were assumed that he had

a substantive due process right. In a

concurring opinion, Justice Powell stated that

the Court's assumption on substantive due

process was unnecessary.

While property interests are

protected by procedural due process

even though the interest is derived

from state law rather than the

Constitution . . . substantive due

process rights are created only by

the Constitution . .. The history

of substantive due process "counsels

caution and restraint." Moore v.

City of East Cleveland, 431 U.S. 494

(1977) . . . “Each new claim to

[substantive due process] protection

must be considered against a

11

background of Constitutional

purposes, as they have been

rationally perceived and

historically developed." (Citing

Poe v. Ullman, 367 U.S. 497, 544

(1961) }.

474 U.S. at 229.

2. The Fifth Circuit's decision

and other lower court holdings

on this issue exceed the limits

established by this Court's

decisions holding government

officials responsible for

bodily injuries to individuals

only in situations where the

state has affirmatively

restrained the individual

either in prison or through

involuntary commitment to an

institution.

The Fifth Circuit's ruling in this case

has no basis in any ruling of the U.S. Supreme

Court. All but one of this Court's decisions

holding public officials liable for personal

injuries to individuals are criminal cases,

based either on the Eighth Amendment's

proscription against cruel and unusual

punishment cr on the duty to provide medical

care to detained individuals. The exception

is Youngberg v. Romeo, 457 U.S. 307 (1982),

ee aati

12

which upheld state liability for care of an

individual who was involuntarily committed to

a mental institution. The Court held that the

State has a duty to ensure the individual's

safety and to facilitate his ability to

function free from bodily restraints. The

Court equated involuntary commitment of mental

patients with incarceration of prisoners,

stating that "[ijf it is cruel and unusual

punishment to hold convicted criminals in

unsafe conditions, it must be unconstitutional

to confine the involuntarily committed --- who

may not be punished at all -- in unsafe

conditions." 457 U.S. at 315-16. The Court,

however, vacated the lower court decision

because the jury was improperly instructed on

the assumption that the proper standard of

liability was that of the Eighth Amendment.

The operative word in the above quote, of

course, is "confine." It is difficult to

understand how students, particularly at the

high school level, can be said to be

iii aaa

13

"confined" when they go home after school

every day, go out to lunch at noon and have

ready access to the principal and other

administrators and teachers. Furthermore,

most of the acts of the perpetrator in this

case occurred outside the school.

Unfortunately, it appears that the lower

court's holding, and the holding of a number

of other lower courts as well, is based less

on a finding that students are "confined" in

the same manner as prisoners than on a belief

that the actions of a school employee in

abusing a child are worse than the action of a

jailer in abusing a prisoner and, therefore,

students should receive at least the same

protections as a prisoner. But it is not the

actions of the perpetrator that courts should

look to in determining the existence of a

substantive due process right, it is the

action of the state in placing the student in

the school. Did the state's action place the

student in a dangerous environment from which

TT

14

she cannot extricate herself? In this case,

the answer to that question has to be in the

negative.

In DeShaney Vv. Winnebago County

Department of Social Services, 489 U.S. 189

(1989), this Court emphasized that without

affirmative state restraint on individual

freedom there is no substantive due process

violation. Using this approach, the Court

refused to hold that a child has a substantive

due process right to be protected by state

welfare officials from intentional bodily

injury inflicted by the child's father even

where the officials knew the father was likely

to inflict such injury. The Court held:

The affirmative duty to protect

arises not from the State's

knowledge of the individual's

predicament or from its expressions

of intent to help him, but from the

limitation which it has imposed on

his freedom to act on his own

behalf. [Citations omitted.]...

In the substantive due process

analysis, A is the State's

affirmative act of restraining the

individual's freedom to act on his

own behalf -- through incarceration,

ee ae NNT aN

15

institutionalization, or other

similar restraint of personal

liberty -- which is the "deprivation

of liberty" triggering the

protection of the Due Process

Clause, not its failure to act to

protect his liberty interests

against harms inflicted by other

means.

489 U.S. at 200.

The court in this case distinguished

DeShaney on the ground that the case involved

a private wrongdoer. However, nothing in this

Court's decisions indicates an intent to make

that distinction.

The lower court decisions on this subject

take one of two tracks, by holding either that

there is a duty to protect arising from the

"special relationship" created by compulsory

attendance laws or that there is a substantive

due process right to bodily integrity in the

schools. The two court of appeals decisions

in this case evidence the two theories.+ Both

1 The panel decision in this case which

was vacated by the court en banc, 975 F.2d

137 (5th Cir. 1992), held that there is a

duty to protect students in the public

16

private actions cannot be the basis for

liability against his employer, and thus

furthers the purpose of Section 1983: To

protect against government employees who

exercise their power as government employees

to deprive another of his constitutional

rights. To the contrary, the Fifth Circuit

has altered the effect of Section 1983 to be

that of protecting citizens from

deprivations of constitutional rights by a

state actor under any circumstances.

b. If this teacher's acts

were under color of

state law, then

virtually every act of

a government employee

will be characterized

as being under color of

state law.

The effect of the holding below is to

include all acts, even those undertaken in

purely private pursuits, within the purview

of Section 1983. The link between the

school and the constitutional violation is

too illusory to encompass’ supervisory

liability, and carried to its logical

17

conclusion, raises serious concerns about

the extent of liability. The conduct at

issue occurred in the teacher's private

life, and the connection to the Taylor

Independent School District was tenuous. As

this Court has held, private actions cannot

violate Due Process rights: , ic

State's failure to protect an individual

against private violence simply does not

constitute a violation of the Due Process

Clause.” DeShaney, 489 v.¢. at i937. As

proponents of the public school system,

Amici would like to be able to protect

schoolchildren to the fullest extent. In

today's society, however, complete

protection is simply not possible. Even if

the public schools had infinite resources,

they would not be able to protect students

from every conceivable harm that might

befall them. We do not wish to see 4

recurrence of the events described by

Respondent, but neither can we support the

18

holding below, which carries a potential for

a new and significant basis of liability for

school administrators and other local

government officials.

B. Our government is premised on a

separation of powers, but Doe v.

Taylor threatens this balance.

This Court has been particularly

cognizant of the cooperative relationship

between the federal government and the

governments of the several States. As

guardians of individuals' constitutional

rights, the federal courts must occasionally

interfere with a state's authority in order

to ensure that protection. This exercise,

however, is not an inconsequential one, and

is only to be used when necessary. As

Justice O'Connor observed: "[SJjection 1983

is not a ‘federal good government act.'"”

Canton, 489 U.S.at 395 (concurring opinion).

This traditional restraint from interference

is another rationale for requiring a high

degree of fault by supervisory government

tl Nip MA Min Ms ore iS OBI NN na Iw 08 eee

tee Cees De ARNE Moai teh aed Oa

kan tr

oo

19

officials before attaching constitutional

liability--the high threshold limits the

frequency with which a federal court would

be compelled to intervene in state affairs.

The court below, however, has encroached

upon this boundary by lowering this

threshold. After Doe Vv. Taylor, a

supervisory official who had no actual

knowledge of constitutional violations by

subordinates could be liable under Section

1983, a federal law. This holding not only

departs from precedential wisdom, but also

allows federal courts to become increasingly

involved in the affairs of the States. In

fact, this concern has played a pivotal role

in more than one decision of this Court.

See, e.g-., Rizzo Vv. Goode; Mitchum Vv.

Foster, 407 U.S. 225 (1972) (explaining that

Section 1983 allows federal courts to issue

injunctions in state proceedings, and

recognizing the importance of federal

nonintervention). While Amici respect the

20

federal courts' role of protector of

individual civil rights, we request this

Court to consider whether the court below

has given adequate consideration to the

doctrine of judicial restraint.

II. The court below has declined to follow

a substantial line of precedents,

threatening the reliability of our

legal system.

Our legal system was designed to be

dynamic, able to adapt to changes in society

and differing factual situations. Although

flexibility is an important and desirable

goal, it must be balanced with an additional

and equally important factor: Certainty.

Much of our law has been carved out of court

cases in which judges attempt to follow the

wisdom and analysis of their peers and

predecessors. As this Court stated: "The

doctrine of stare decisis advances two

important values of a rational system of

law: (i) the certainty of legal principles

and (ii) the wisdom of the conservative

vision that existing rules’ should be

ros oni Ss IA) Beate leant PE

21

presumed rational ‘at any time a new thought

seems appealing.'" Monell, 436 U.S. at 709,

n. 6. As courts announce their

interpretations of the law, persons adapt

their behavior to conform to these holdings.

Change in established precedent may

sometimes be necessary, given evolving

societal forces or factual novelties, but

such change must be made cautiously and only

when the need for change is so great that it

outweighs the importance of certainty.

Furthermore, as now Chief Justice Rehnquist

has recognized, the judiciary must realize

that many actors have relied upon these

prior decisions and may be seriously

affected by their alteration: "Only the

most compelling circumstances can justify

this Court's abandonment of such firmly

established statutory precedents." Monell,

436 U.S. at 715 (Rehnquist, joined by Cid

Burger, dissenting). Precedents of this

Court, including Rizzo and its progeny, have

22

held that supervisory public officials are

not liable for constitutional violations in

the absence of the supervisor's having

engaged in some affirmative conduct. Lower

courts have followed the wisdom of Rizzo for

nearly twenty years. See, e.g., Gates v.

Unified Sch. Dist. No. 449, 996 F.2d 1035

(10th Cir. 1993); Stoneking v. Bradford Area

School District, 882 F.2@ 20 (3srd Cir.

1989), cert. denied, sub nom. Smith v.

Stoneking, 493 U.S. 1044 (1990). Although

this Court is certainly free to modify or

even completely transform the "affirmative

act" requirement previously employed, Amici

suggest that the Court not do so; the

reliability of our legal system and the

soundness of this approach, evidenced by the

length of time this interpretation iias

endured, are too important to be cast aside.

The rules of this Court are never produced

hastily, and as Jastice Douglas so aptly

noted, “should be good for more than one day

Re ee ee ar ci

23

only." Screws, 325 U.S. at 112. Public

policy favors upholding and applying prior

law. There are no extenuating circumstances

here that would tip the balance in favor of

altering a proven, rational form of

analysis.

The echoes of judicial holdings

reverberate not only in the minds of those

who are directly affected, but they resound

in other, indirectly affected areas. For

example, insurers of public entities rely on

settled precedent when planning insurance

coverage. Amici can only imagine how

insurance premiums will escalate once the

potential for constitutional liability for

inactions of supervisory government

employees becomes apparent. It is simply

one more fray in the already fragile rope

that binds our governmental structure. The

potential flood of litigation that will flow

from decisions like Doe v. Taylor could have

devastating and lasting effects.

24

III. Under the new standard in the Fifth

CiAteus ss Supervisors are

unconditionally liable for the actions

of their subordinates.

A. By imposing liability for failure

to act, the Fifth Circuit

essentially established a

negligence standard for

Supervisors under Section 1983.

| Negligence does not

implicate the Fourteenth

Amendment and should not be

the basis for Section 1983

liability.

The Fifth Circuit's decision has

lowered the Section 1983 standard to simple

negligence, contrary to the holdings of

other circuits and to precedents established

by this Court. See Daniels v. Williams, 474

U.S. 327 (1986); Gates; Jane Doe "A" v.

Special Sch. Dist. of Saint Louis County,

901 F.2d 642 (8th Cir. 1990). Furthermore,

the holding sets an unrealistic standard for

Supervisory officials, requiring them to

have a level of omniscience concerning the

conduct of their subordinates that is simply

impracticable, if not impossible. This

unprecedented extension of liability under

rp

section 1983 would allow plaintiffs to

proceed under the Fifth Circuit's lower

standard of fau’t to create in essence de

facto strict liability for all supervisory

officials.

Prior to the decision below, Section

1983 liability had been imposed primarily

upon supervisory defendants who demonstrated

deliberate indifference after receiving

actual notice of constitutional violations.

Daniels; Gates; Woodward v. City of Worland,

o77: 3s. ae 1392, 1399 (10th Cir.), cert.

denied, 1439 £.t%.- 3 (1992). This

prerequisite of notice prevented the

standard from becoming one of mere

negligence, 4 transformation which this

Court has explicitly sought to preclude:

TO Justice Powell, mere

negligence could not "wor[k] a

deprivation in the constitutional

sense." Not only does the word

"deprive" in the Due Process

Clause connote more than a

negligent act, but we should not

"open the federal courts to

lawsuits where thece has been no

affirmative abuse of power.”

26

Daniels, 474 U.S. at 330 (citing Parratt v.

Taylor, 451 U.S. 527, 548-49 (1981)). This

Court made clear that Section 1983 liability

must be based upon a “deliberate” or

"conscious" deprivation of constitutional

rights. "Deliberate" implies some amount of

scienter, higher than negligence, but lower

than intent. In other words, the defendant

must have been conscious of an excessive

risk that violations may be occurring.

Farmer v. Brennan, 62 U.S.L.W. 4446, 4448-49

(U.S. June 6, 1994); Canton, 489 U.S. at

390. Consequently, without notice of an

excessive risk of constitutional violations,

a defendant could not be liable for failure

to prevent a subordinate from committing

those violations. For example, although a

high school principal knew that a female

student was infatuated with a teacher and

the teacher encouraged her, without evidence

that the principal knew the student had been

sexually assaulted or that she had been

27

otherwise deprived of any constitutional

right, the principal was entitled to

qualified immunity. Gates, 996 F.2d at

1042. Similarly, Petitioner in this

proceeding had heard rumors about a student-

teacher relationship, but there were no

specific allegations of constitutional

deprivations. Evidence also shows that

Petitioner's superior questioned both

Respondent and the coach, but both denied

any sexual relationship, leaving Petitioner

with no justification to believe that sexual

assault or other sexual abuse had occurred.

Doe v. Taylor, 15 F.3d at 449. As he was

neither conscious of an excessive risk nor

had actual notice of any constitutional

violations, Petitioner would be relieved of

liability under decisions of other circuits.

Gates; Jane Doe "A". The record here does

not support a conclusion that Petitioner was

aware of an excessive risk; therefore, he

could not have been deliberately

28

indifferent. At most, Petitioner's conduct

failed to measure up to that of a reasonable

person--he may have acted with a lack of due

care, but his conduct did not rise to the

level necessary to warrant liability under

Section 1983.

a The requisite affirmative

link between the

supervisor's conduct and the

subordinate's misconduct was

disregarded by the court

below.

This Court has interpreted Section 1983

to require an “affirmative link" between a

supervisor's conduct and a _ subordinate's

misconduct: "By our decision in Rizzo v.

Goode we would appear to have decided that

the mere right to control without any

control or direction having been exercised

and without any failure to supervise is not

enough to support § 1983 liability.”

Monell, 436 U.S. at 694, n. 58. A finding

of causation is therefore crucial to a civil

rights claim, yet such is fatally lacking in

Respondent's allegations. Without

29

explanation, the Fifth Circuit concluded

that, had Petitioner acted, he could have

prevented or at least minimized the

violation of Respondent's constitutional

right to bodily integrity. Doe v. Taylor,

15 F. 3d at 45/7. This leap of logic,

however, is somewhat precipitous; case law

generally requires more evidence of

causation: "...{A]J1l1 of the circuits agree

that, at a minimum, supervisory liability

requires a cause in fact relationship

between the supervisor's action or inaction

and the plaintiff's constitutional

deprivation." 1 Sheldon H. Nahmod, Civil

Rights and Civil Liberties Litigation: The

Law of Section 1983, § 3.23, at 247 (3rd Ed.

1991). In the instant case, 2 contrary

conclusion would be equally viable: Evenif

Petitioner had intervened, the

constitutional violations could have

occurred nonetheless. In light of both the

student's and the coach's denials of any

30

misconduct, Petitioner certainly lacked

sufficient evidence to terminate the

employment of the coach. A reprimand would

not necessarily have ended the relationship;

the intensity of the relationship might have

been unaffected by a school administrator's

actions.

By neglecting to find an "affirmative

link," Doe v. Taylor has created the

possibility that lower courts will hold

Supervisors vicariously liable for all

unconstitutional acts of their subordinates,

regardless of the level of the supervisor's

involvement or knowledge. Moreover, the Doe

v. Taylor holding is contrary to _ the

language of the statute and to the holdings

of this Court. Other circuits have stopped

short of basing liability on the failure of

supervisory officials to act or investigate,

and require a plaintiff to prove that a

direct nexus exists between the

constitutional violations and the

:

4

3

31

supervisor's condonation or authorization

thereof. D.T., 894 F.2d at 1187; Stoneking,

882 F.2d at 730. Ultimately, of course,

causation is a question of fact, but Amici

urge the Court to consider clarifying this

issue before the lower courts encounter

further confusion.

ke Congress __has amended the

Civil Rights Act but _has

refrained from adding

Tiability for nonfeasance.

Since the inception of the Civil Rights

Act, Congress has periodically amended its

provisions to address situations that may

not be specifically covered by the Act and

to correct areas that have proven

problematic. Although courts have declined

to impose liability upon supervisors for

nonfeasance under Section 1983, Congress has

not responded, implying its approval. Amici

urge this Court to allow the United States

Congress to decide whether the standard in

Section 1983 should be revised to include

supervisory nonfeasance.

32

B. Imposing liability on someone who

has neither committed an offense

nor has any actual knowledge or

notice of the constitutional

violation sends an unclear

message.

As This holding establishes no

clear’ standard of conduct

for supervisory officials.

The amount of knowledge a supervisory

official has concerning the activities of

his or her employees is especially relevant

to the standard for imposing supervisory

liability under Section 1983. A supervisor

simply cannot be concerned with tracking

every action of every employee under his or

her control. While a supervisor may have a

general idea of subordinates' activities, he

or she may have no means to discern that a

Subordinate is engaging in conduct that

violates constitutional rights. Even if a

supervisor has notice of tortious actions of

a subordinate, notice of actual

constitutional violations does not

necessarily follow; this difference could be

Crucial to the outcome of a Section 1983

ae

action. It would advance no public policy

nor any purpose of Section 1983 to impose

liability upon supervisors who have no

knowledge of constitutional violations.

Requiring a supervisor to intuit

constitutional violations would transform

the nature of Section 1983 liability into a

standard approaching tort liability for

negligence. Any determination of liability

is a serious matter, but liability for a

constitutional violation is, of course, a

matter of great consequence, and one for

which there should be a clear standard of

conduct. Absent such guidance, government

employees have no frame of reference from

which to model their conduct. The court

below, without much explanation, did not set

forth any such standard. It arrived at the

determination that Petitioner could have

been deliberately indifferent. What are

school administrators and other supervisory

officials to learn from this decision? To

34

discipline or terminate all employees on the

basis of apparently unsubstantiated rumors?

Administrators are limited in their ability

to discipline by the due process rights of

employees. In the absence of concrete

evidence, the recommended code of conduct

required by Doe v. Taylor is unclear.

In the test articulated for supervisory

liability, the court below lowered

requirements used by other circuits to allow

a finding of liability if a supervisor

"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." Doe v. Taylor, 15 F.3d

at 454. While the goal behind this standard

is an admirable one--increased protection of

civil rights--it does not provide sufficient

guidance for supervisory school officials.

It has the potential to subject a supervisor

to strict liability, for if he or she fails

35

to glean that constitutional violations are

occurring and a court later determines that

the supervisor should have done so, the

transgressions of the subordinate become

those of the supervisor. Not only does this

test incorporate a significant amount of

subjectivity by depending upon the deductive

capabilities of the supervisor, but it also

conflicts with decisions of the Eighth and

Tenth Circuit Courts. Gates, 996 F.2d 1035

(10th Cir. 1993); Jane Doe "A", 901 F. 2d

642 (8th Cir. 1990). Furthermore, it

contradicts this Court's refusal to

insinuate respondeat superior into a Section

19€3 action, as established in Monell.

This Court recently held that

deliberate indifference entails a higher

standard than negligence. The public

official must be reckless to the extent of

knowing of and disregarding an excessive

risk to health or safety. Farmer v.

Brennan, 62 U.S.L.W. at 4449. Farmer was

36

the first decision of this Court which

paused to explain the meaning of the term

"deliberate indifference." Id. at 4448.

Although the Court clearly limited its

holding to cases arising under the Eighth

Amendment, Amici urge the Court to extend

Farmer's subjective test for deliberate

indifference to all cases involving

individual liability. Not only wiil such a

measure provide a reasonable and consistent

standard for public officials, but it will

also provide much-needed guidance to the

lower courts that constantly struggle with

this very concept. In Farmer, the Court

carefully distinguished its ttest from the

one announced in Canton. Id. at 4450. Amici

agree with this distinction and believe that

the Canton objective test should be retained

for proceedings against governmental

entities. For individuals, however, the

Farmer test is a much more logical and

reasonable choice. Some courts, including

37

the Fifth Circuit, have extended the Canton

test to individual public officials. Doe v.

Taylor, 15 F.3d at 453; Sample v. Diecks,

885 F. 2d 1099, 1117-18 (3rd Cir. 1989}.

This extension, however, does not withstand

scrutiny: "Needless to say, moreover,

considerable conceptual difficuliy would

attend any search for the subjective state

of mind of a governmental entity, as

distinct from that of a governmental

official.” Farmer, 62 U.S.L.W. at 4450.

Extending the subjective test adopted by

this Court in Farmer would only be

beneficial to our constitutional

jurisprudence. Henceforth, public officials

would understand the legal standard under

which their actions would be examined, and

"deliberate indifference” would gain the

same familiarity of meaning as "negligence"

and "recklessness." Reliability,

consistency, and clarity would be restored

to Section 1983 litigation.

38

In the Eighth Circuit, liability may

attach when a defendant has notice of a

pattern of unconstitutional acts. Without

actual notice, a supervisor could not be

deliberately indifferent nor could he

tacitly authorize a subordinate's violation

of another's constitutional rights. Jane

Doe "A", 901 F.2d at 646. The Tenth Circuit

has adopted a similar standard--its test

requires that a supervisor receive notice

"of a pattern of violations of female

students’ constitutional rights to be free

of sexual abuse at the hands of the school

district's employees." Gates, 996 F.2d at

1041. Thus, without evidence that a school

supervisor had notice of sexual misconduct,

there could be no personal liability. Id.

at 1042. By contrast, in the Fifth Circuit

a supervisory official can now be considered

deliberately indifferent without actual

notice. If rumors or hearsay establish in

at least one court's opinion that the facts

PO Te the ne ars

39

"pointed plainly toward the conclusion" that

constitutional rights were being violated by

subordinates, then the unconstitutional

conduct could be attributable to that

supervisor. In so holding, the Fifth

Circuit has diminished the threshold for a

Section 1983 action to one that approaches

simple negligence, contrary to precedents of

this Court. See, e.g., Daniels. Amici urge

this Court to consider whether Doe v. Taylor

truly comports with this Court's

interpretation of civil rights liability in

similar situations.

Rs Without notice of possible

harm, it is impossible to

prevent that harm.

A primary reason for imposing liability

is to deter actors from committing wrongs.

In the holding below, denying Petitioner

immunity from liability would certainly

punish him, but there is no attendant

guidance to direct future conduct. The

lesson to be learned from imposing liability

40

in this case is unclear, and would serve

only one function--to punish a_e school

administrator for something that he could

not have foreseen and to impose = an

unrealistic responsibility on school

administrators. Preventing constitutional

violations is an important goal, but the

ability to discern violations as insidious

as sexual abuse is an inherently difficult,

subjective process. If an administrator

dutifully investigates and a_- student

actually reveals that his or her

constitutional rights have been violated,

then an administrator has a basis upon which

to act. But when the student denies

violations, as did Respondent, then it is

unreasonable to expect the supervisor of the

wrongdoer to prevent the violations.

Without warning, no one can prevent harm.

It is unrealistic to suggest otherwise, and

imposing such a legal duty furthers no

rational public policy.

41

xP Hindsight is a luxury

Unavailable to supervisory

School officials; liability

for nonfeasance would be

totally impracticable when

there is insufficient

notice.

Amici are concerned about the welfare

and education of public school students.

While we abhor the situation described by

Respondent, we ask this Court to view the

situation through Petitioner's perspective.

After reviewing the facts in 1994, it might

seem obvious that Respondent's rights were

being violated in 1987. Petitioner,

however, did not have the benefit of

hindsight, nor was there adequate guidance

concerning this issue. Even today, Amici

question whether it would be realistic to

expect a school administrator to exercise

such control over his or her teachers that

he or she would be aware of constitutional

violations committed by teachers when they

were not at school. School administrators

have a multitude of duties, not the least of

42

which is overseeing the activities of,

often, several hundred teachers, students,

and other employees. On any given day, they

may have to choose between spending time

responding tc weapons, drugs, or other

discipline problems, assisting and

evaluating teachers, providing instructional

leadership, conferring with students and

parents, or preventing violence on campus.

The court below has created an additional

duty that requires a supervisor to

investigate not only bona fide complaints,

but also to scrutinize the most superficial

rumors. If no limits are placed upon the

nature and scope of a_- supervisor's

investigation, this duty could become

absurd, resulting in an infinite number of

needless and fruitless searches. Will our

public schoolchildren benefit from defensive

and self-protecting supervisory activities

or will this decision merely divert

resources and encourage persons to pursue

43

litigation? Amici suggest that a

supervisor's liability for misconduct of

subordinate employees be considered only

when those employees are engaged in

activities that are in the course and scope

of their employment, are under the

supervisor's control, and are known to the

supervisor.

CONCLUSION

Finally, Amici remind the Court that

every time a school administrator is found

liable, our schools and thus our children

are ultimately deprived of resources that

could have been used for education. Amici

do not wish to relieve administrators or

public officials from all constitutional

liability; to the contrary, we accept that

such responsibility must be retained, so

that meritorious cases do not go unaddressed

and constitutional rights are preserved. In

this case, however, we would suggest a

review of the lower court's opinion. Given .

44

the nature of our public school system and

the importance of education in this country,

we would hope that, in situations where

administrators were unable to prevent

constitutional violations, constitutional

liability would not attach. Allowing the

holding below to stand would obviously

permit more plaintiffs to recover for

alleged constitutional violations, but only

at the expense of too many others. The

value of children's educational experience

would be diminished because their school

administrators would have to be primarily

concerned with avoiding constitutional

liability and forced to neglect pedagogical

concerns. Under the current holding,

liability of administrators is possible in

sO many situations that public funds will

continuously be depleted at the expense of

more teachers, better educational programs,

and safer campuses.

45

For all the foregoing reasons, Amici

urge this Court to grant the petition review

this case.

Respectfully submitted,

PATRICIA AHEARN

Counsel of Record

Director of Legal

Services

Texas Association of

School Boards,

Texas Association of

School Administrators,

and the

Texas Council of School

Attorneys

P.O. Box 400

Austin, Texas 78767-400

(512) 467-3610

CAROLYN M. HANAHAN

TASB Staff Attorney

PERRY SANSING

Brunini, Grantham,

Grower & Hewes

General Counsel

Mississippi School

Boards Association

238 East Capitol

Jackson, Mississippi

39201