Opposition Brief — McCullom v. Board of Education

———— =

: Qpreme Oourt, U.S.

FILED

JUN 8 1993

No. 92-1811 OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1992

*

GREGORY McClULLOM, et al.,

Petitioners,

-VS-

BOARD OF EDUCATION OF THE PRINCETON CITY

SCHOOL DISTRICT, et al.,

Respondents.

a

Petition For Writ Of Certiorari

To The Supreme Court Of Ohio

e

BRIEF IN OPPOSITION

¢

JOHN J. FINNIGAN, Jr.

Counsel of Record

McCasuIn, ImMsus & McCastin

1200 Gwynne Building

602 Main Street

Cincinnati, Ohio 45202

(513) 421-4646

JoHN W. Hust

CAROLYN A. TAGGART

Renpics, Fry, Kiety & DENNIS

900 Central Trust Tower

5 West Fourth Street

Cincinnati, Ohio 45202

(513) 381-9218

Attorneys for Respondents

QUESTION PRESENTED FOR REVIEW

Whether a public school district and school officials

are liable under 42 U.S.C. § 1983 for a teacher’s sexual

abuse of students where the school officials received only

one prior report that the teacher might have sexually

abused a child and they responded by thoroughly investi-

gating the report and greatly increasing their supervision

Over the teacher.

ll

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

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I. WHETHER A PUBLIC SCHOOL DISTRICT AND

SCHOOL OFFICIALS ARE LIABLE UNDER 42

U.S.C. § 1983 FOR A TEACHER’S SEXUAL

ABUSE OF STUDENTS WHERE THE SCHOOL

OFFICIALS RECEIVED ONLY ONE PRIOR

REPORT THAT THE TEACHER MIGHT HAVE

SEXUALLY ABUSED A CHILD AND THEY

RESPONDED BY THOROUGHLY INVESTIGAT-

ING THE REPORT AND GREATLY INCREASING

THEIR SUPERVISION OVER THE TEACHER... 6

CRIIUE LARSEN 6 5.5 00 b:d0 sore CRN REE en 11

ili

TABLE OF AUTHORITIES

Page

CASES

Bartels v. Iowa, 262 U.S. 404 (1923) ................... y

pen ©. Wonmen, 441 US. S20 (1979) ........ 0... 650005, 9

Black v. Indiana Area School Dist., 985 F.2d 707 (3d

Nn a ce yeas Gea bake 6

Canton v. Harris, 489 U.S. 378 (1989) ................ 10

Collins v. Harker Heights, __ U.S. __, 112 S. Ct.

SEES Op ate GR STR a gee Ae ee ee a )

D.T. v. Independent School Dist. No. 16, 894 F.2d

1176 (10th Cir.), cert. denied, 498 U.S. 879 (1990)..... 7

DeShaney v. Winnebago County Dept. of Social Ser-

Ne) 6

Doe v. Taylor Independent School Dist., 975 F.2d 137

(Sth Cir. 1992), cert. denied sub nom. Caplinger v.

Doe, __ U.S. __, 113 S. Ct. 1066, reh’g denied,

113 S. Ct. 1436 (1993), reh’g granted en banc, Doe

v. Taylor Independent School Dist., 987 F.2d 231

A Oe ere ee eee 6

Estelle v. Gamble, 429 U.S. 97 (1976) .................. 7

Gates v. Unified School Dist. No. 449, 1992 U.S. Dist.

LBAIS 6465 (D. Kan. 1992). .................250555. 7

Jane Doe “A” v. Special School Dist. of St. Louts

County, 901 F.2d 642 (8th Cir. 1990)................ 7

Meyer v. Nebraska, 262 U.S. 390 (1923)................ 9

Monell v. New York Dept. of Social Services, 436 U.S.

ee ee re 9

Revere v. Massachusetts General Hospital, 463 U.S.

a Oka SEW a FEN W AN 4 KOke 6s eee NK Ss eaves 9

iv

TABLE OF AUTHORITIES - Continued

Page

Spann v. Tyler Independent School Dist., 876 F.2d 437

(Sth Cir. 1989), cert. denied sub nom. Spann v.

pores, SS VED. Te CUR io aos cc ees ca ses eens a> 7

Stoneking v. Bradford Area School Dist., 882 F.2d 720

(3d Cir. 1989), cert. denied sub nom. Smith v.

Stonexing, 493 U.S. 1044 (1990)............... 000 0e: 7

Thelma D. v. St. Louis Board of Educ., 934 F.2d 929

GU Bats OUND 55s Se een cab Ke eee aU eee en 7

Turner v. Safiey, 462 US. 76 (1967) ...........ceceece: 9

Youngberg v. Romeo, 457 U.S. 307 (1982) .............. 9

STATUTES

ek Lome «epee e rere ey rey errr rrr 6, 7, 9, 10

RuLEs

mee. GA. TH: BRA. cc cckca echoes ese ees 10

STATEMENT OF THE CASE

The petitioners have misstated the facts throughout

this case. The court of appeals noted this when it

observed that the petitioners’ argument below “mis-

construes the record in several respects” (Petition for Writ

of Certiorari at Appendix 20a). The petitioners continue

to misstate the facts as they seek certiorari.

Respondents Princeton School District and school

officials had notice of only one incident where teacher Jay

Clow might have abused someone (Petition for Writ of

Certiorari at Appendix 16a and 41a). This incident

occurred in early 1987, when Evendale Police Chief

Danny O’Malley told respondent School Superintendent

Richard Denoyer of an anonymous tip that Clow might

have fondled a child’s buttocks one or two years earlier.

The report was unclear whether Clow’s momentary con-

tact with the boy’s buttock’s was intentional or accidental

(Petition for Writ of Certiorari at Appendix 19a-20a).

Denoyer asked O’Malley to “find out who this person is

and get them to come forward” so that Princeton “could

get rid of (Clow).” O’Malley responded that the incident

“was a little thing and it may have been an accident and

they don’t want to make a big deal out of it.”

During the summer of 1987, Denoyer was reminded

of O’Malley’s report when he saw Clow go into a school

building with a teen-age boy. Denoyer badgered O’Mal-

ley repeatedly to get details of the earlier anonymous

report. O’Malley later learned that Brian G. was the boy

involved in the report. Denoyer arranged to meet with

Mrs. G. Sharonville Police Chief William Nuss, who was

Mrs. G.’s brother-in-law, also attended the meeting.

Denoyer convened the meeting to gather information to

take disciplinary action against Clow.

At the meeting, Mrs. G. said her son, Brian, who was

not a Princeton student, had slept overnight at Clow’s

house through the Big Brother program. Mrs. G. said

Clow had momentarily brushed his hand over the boy’s

pajamas covering his buttocks, apparently while tucking

him in. Chief Nuss said that Clow’s conduct was not

criminal because it was unclear whether Clow had tou-

ched Brian G. accidentally or intentionally.

Petitioners’ Statement of Facts is misleading because

it does not mention several steps which respondents took

to respond to this equivocal report. Respondents pursued

the matter vigorously by the following actions:

(1) Denoyer tried to get Mrs. G. to press crim-

inal charges against Clow and to allow her

son to testify in a school disciplinary pro-

ceeding against Clow.

(2) Denoyer talked to John Hust, Princeton’s

attorney, to discuss how he should

respond to the incident. They discussed

whether Denoyer should report the inci-

dent to the County Department of Human

Services and Hust advised him that he

need not do so because the incident had

already been reported to two police

departments. Denoyer and Hust discussed

the existing conditions which ensured that

Clow would rarely, if ever, be alone with

his students: (a) Anita Parks, a teacher’s

aide, was in the classroom with Clow vir-

tually the entire time. She had worked as a

social worker at University Hospital for

ten years handling child abuse cases; (b)

(3)

(4)

(5)

(6)

(7)

another class joined with Clow’s class

daily, so the teacher and aide from the

other class would also be present; (c) par-

ents visited the class frequently, without

prior notice to Clow; (d) Clow was sched-

uled for an in-depth evaluation, so his

supervisor would be visiting the class-

room often. Denoyer and Hust also dis-

cussed what steps Denoyer could take to

monitor Clow more closely, which

Denoyer did as set forth below.

Denoyer consulted with Hust and Paul

Berninger, Princeton’s labor attorney, to

find out whether he could fire Clow based

on the available information, and they

responded in the negative.

Denoyer asked Mrs. G. to allow Jerry Lin-

dahl, a Princeton school psychologist, to

interview Brian to find out whether Clow

had actually attempted to fondle him. Lin-

dahl called Mrs. G. but Mrs. G. told him

that she didn’t feel there was any problem

and that she didn’t see any need for him

to interview Brian.

Denoyer asked Chief O’Malley to run a

criminal background check on Clow,

which proved negative.

Denoyer described the incident to respon-

dent Bobby Cox, the principa! at Evendale

Elementary School, and told him to watch

Clow closely.

Cox increased the number of times he

observed Clow’s classroom to seven or

eight times per day.

(8)

(9)

(10)

(11)

(12)

(13)

Cox relieved Anita Parks, Clow’s aide, of

all special duties which otherwise might

have taken her out of the classroom.

Cox regularly watched Clow leave the

school grounds to make sure that Clow

was not taking children home with him.

Denoyer called Cox repeatedly (to the

point that Cex “got annoyed with the

number of calls”) asking about the results

of his observations of Clow.

Denoyer told Jackie Williams, Clow’s

supervisor, that there had been an incident

between Clow and a young boy. Williams

told Denoyer that she was doing an in-

depth evaluation of Clow that year.

Denoyer told her to watch for any unusual

behavior in the classroom and report it to

him. She observed Clow frequently

throughout the year. Denoyer followed up

by asking her whether she had observed

anything unusual, but she had not. He

also told her to tell Clow not to take the

students anywhere in his car, which she

did.

Denoyer asked Joanne Olman, the school

psychologist, whether she was involved in

any sexual abuse cases in the multi-hand-

icapped classes. She responded that she

was not. He told her to watch out for any

unusual behavior in the multi-hand-

icapped classes.

Respondent David Baker, the assistant

superintendent, talked to Cox and Wil-

liams more frequently to ask them

whether anything unusual was occurring

in Clow’s classroom.

Petitioners’ description of the abuses allegedly per-

petrated by Clow is misleading too. Petitioners state that

Clow pleaded guilty to “multipie counts of sexual mis-

conduct” (Petition for Writ of Certiorari at 7). However,

only one count involved contact with a Princeton student

on school grounds. This single count involved Clow sur-

reptitiously videotaping petitioner Max Zinsmeister,

unbeknownst to Max or school officials, while Max

changed his pants after falling in the mud.

Petitioners’ statement that “respondents’ own expert

has confirmed much of this abuse” (Petition for Writ of

Certiorari at 8) is a misstatement. In fact, respondents’

expert confirmed very few of the incidents alleged by

petitioners.

Petitioners have never attempted to delineate which

of the claimed abuses occurred before or after respon-

dents received notice of Clow’s alleged abuse of Brian G.

in the summer of 1987. Many of the alleged incidents

occurred, if at all, prior to that date. Respondents cannot

be held liable for incidents which occurred prior to when

they received notice that Clow had allegedly abused

Brian G.

Finally, petitioners suggest that respondents would

have discovered Clow’s alleged abuses if they had

reported the Brian G. incident to the County Department

of Human Services (Petition for Writ of Certiorari at

11-12). This is a misstatement. The Department of Human

Services would not have informed respondents of any

prior incident involving Clow, for confidentiality reasons.

It would not have led to criminal charges against Clow

because the police had already concluded that the Brian

G. incident was not prosecutable.

¢

ARGUMENT

I. WHETHER A PUBLIC SCHOOL DISTRICT AND

SCHOOL OFFICIALS ARE LIABLE UNDER 42

U.S.C. § 1983 FOR A TEACHER’S SEXUAL ABUSE

OF STUDENTS WHERE THE SCHOOL OFFICIALS

RECEIVED ONLY ONE PRIOR REPORT THAT THE

TEACHER MIGHT HAVE SEXUALLY ABUSED A

CHILD AND THEY RESPONDED BY THOR-

OUGHLY INVESTIGATING THE REPORT AND

GREATLY INCREASING THEIR SUPERVISION

OVER THE TEACHER.

Petitioners urge the Court to grant certiorari and

hold that “supervising officials in public schools have an

affirmative duty to protect children from sexual abuse by

teachers” (Petition for Writ of Certiorari at 28). This is in

direct conflict with the Court’s holding in DeShaney v.

Winnebago County Dept. of Social Services, 489 U.S. 189

(1989). The Court noted in DeShaney that the Due Process

Clause limits the State’s power to act, but does not func-

tion “as a guarantee of certain minimum levels of safety

and security,” and “cannot fairly be extended to impose

an affirmative obligation on the State to ensure that (an

individual’s life, liberty or property) interests do not

come to harm through other means.” Id. at 195.

A school district and its officials are liable under 42

U.S.C. § 1983 for a teacher’s sexual abuse of his students

only if the abuse occurred because the school officials

supervised the teacher so inadequately as to constitute

deliberate indifference toward the students’ constitu-

tional rights. Black v. Indiana Area School Dist., 985 F.2d

707 (3d Cir. 1993); Doe v. Taylor Independent School Dist.,

975 F.2d 137 (Sth Cir. 1992), cert. denied sub nom. Caplinger

v. Doe,__ U.S. __, 113 S. Ct. 1066, reh’g denied, 113 S. Ct.

1436 (1993), reh’g granted en banc, Doe v. Taylor Independent

School Dist., 987 F.2d 231 (5th Cir. 1993); Jane Doe “A” v.

Special School Dist. of St. Louis County, 901 F.2d 642 (8th

Cir. 1990); D.T. v. Independent School Dist. No. 16, 894 F.2d

1176 (10th Cir.), cert. denied, 498 U.S. 879 (1990); Stoneking

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

cert. denied sub nom. Smith v. Stoneking, 493 U.S. 1044

(1990); Spann v. Tyler Independent School Dist., 876 F.2d 437

(Sth Cir. 1989), cert. denied sub nom. Spann v. Jones, 493 U.S.

1047 (1990); Thelma D. v. St. Louis Board of Educ., 934 F.2d

929 (8th Cir. 1991); Gates v. Unified School Dist. No. 449,

1992 U.S. Dist. LEXIS 8485 (D. Kan. 1992).

These cases hold that students have a constitutional

right to be free from a teacher’s sexual abuse. Under

these cases, school officials are deemed deliberately indif-

ferent to students’ constitutional rights if the school offi-

cials received notice of a pattern of sexual misconduct by

their teachers and then deliberately fail to supervise the

teachers, thus proximately causing a teacher to sexually

abuse another student. The lower courts have applied

this deliberate indifference standard in the foregoing sex-

ual abuse cases decided under 42 U.S.C. § 1983, as well as

thousands of other cases decided under the statute

involving claimed violations of other types of constitu-

tional rights. This Court has applied the deliberate indif-

ference standard in cases arising under 42 U.S.C. § 1983

for nearly 20 years. Estelle v. Gamble, 429 U.S. 97 (1976).

Petitioners therefore unfairly misstate the law by claim-

ing there is a “crying need” for this Court to clarify this

standard (Petition for Writ of Certiorari at 26).

In the case sub judice, respondents had notice of only

one incident where Clow might have sexually abused a

child. This was the Brian G. incident. The report was very

equivocal as to whether Clow’s momentary touching of

Brian G. was an act of sexual abuse or an accident.

Respondents reacted to this incident by thoroughly inves-

tigating the report and greatly increasing their supervi-

sion over Clow. Respondents acted with diligence, not

deliberate indifference.

Petitioners misstate the court of appeals’ ruling in

this action. Petitioners argue that the court of appeals

incorrectly applied the deliberate indifference standard

by holding that respondents satisfied this standard

because “it cannot be said that appellees ‘did virtually

nothing’ to investigate or monitor Clow’s conduct after

learning of the possibility that Clow had engaged in

improper sexual behavior” (Petition for Writ of Certiorari

at 25). This is a misstatement because the petitioners had

argued that respondents “did virtually nothing” in

response to the Brian G. incident, and the court of

appeals was merely rejecting that argument. In fact, the

court of appeals correctly outlined and applied the delib-

erate indifference test in its opinion contained at Appen-

dix 14a-15a of the Petition for Writ of Certiorari.

Petitioners urge the Court to adopt a legal standard

which charges school officials with “an affirmative duty

to protect children from sexual abuse by teachers” (Peti-

tion for Writ of Certiorari at 28). Petitioners urge the

Court to hold that “this duty requires active measures to

prevent abuse; to train for discovery of abuse; and to

supervise adequately to uncover incidents of abuse”

(Petition for Writ of Certiorari at 28).

This Court has held that 42 U.S.C. § 1983 requires a

political subdivision to provide a minimal level of safety

for a person only if the political subdivision has deprived

the person of his liberty in situations involving convicted

felons, Turner v. Safley, 482 U.S. 78, 94-99 (1987); persons

under arrest, Revere v. Massachusetts General Hospital, 463

U.S. 239, 244-245 (1983); persons in mental institutions,

Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982); or pre-

trial detainees, Bell v. Wolfish, 441 U.S. 520, 535 n.16, 545

(1979). A student does not surrender his liberty rights

when he enters the school door and this Court has so

held for the past 70 years. Bartels v. lowa, 262 U.S. 404

(1923); Meyer v. Nebraska, 262 U.S. 390 (1923).

It is ludicrous for petitioners to argue that a student’s

liberty interest is impaired to the same extent as a convicted

felon’s or a person in any of the other categories cited above.

In fact, the petitioners propose an expansion of the Due

Process Clause which is just as unwarranted and unprece-

dented as in Collins v. Harker Heights, U.S. __, 112

S. Ct. 1061 (1992), where the Court rejected the peti-

tioner’s claim that a city owed a federal constitutional

duty to provide its employer with minimal levels of

safety.

In effect, the standard which petitioners urge the

Court to adopt would impose vicarious liability on a

public entity for the constitutional torts of its employees.

However, this Court has long held that liability cannot be

imposed on a public entity under 42 U.S.C. § 1983 based

on a respondeat superior theory. Monell v. New York Dept. of

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

10

Certiorari is not appropriate in this case under Sup.

Ct. R. 10.1(c) because the Court has already addressed the

deliberate indifference standard in the content of § 1983

claims for failure to train or supervise. Canton v. Harris,

489 U.S. 378 (1989). The case sub judice is consistent with

that decision as well as the lower court cases cited at page

7 of this brief, where courts have applied the deliberate

indifference standard in § 1983 cases involving a

teacher’s sexual abuse against a student.

Petitioners’ real aim can be discerned from a cursory

reading of their Petition. Petitioners complain that: (1) the

court of appeals failed to correctly apply the deliberate

indifference standard to the evidence sub judice (Petition

for Writ of Certiorari at 17); (2) the evidence of respon-

dents’ notice of Clow’s misconduct was “inexplicitly (sic)

characterized as ‘undisputed facts’ in spite of the sub-

stantially conflicting testimony” (Petition for Writ of Cer-

tiorari at 18); (3) the lower courts “ignored” certain

testimony from Clow’s aide (Petition for Writ of Cer-

tiorari at 24). Quite clearly, petitioners seek certiorari to

ask this Court to re-weigh the evidence already consid-

ered by the trial court, the court of appeals and the state

supreme court. This is an improper reason to grant cer-

tiorari and is an inappropriate use of this Court’s scarce

judicial resources.

11

CONCLUSION

For all the reasons set forth in this brief, the Petition

for Writ of Certiorari should be denied.

Respectfully submitted,

JOHN J. FINNIGAN, JR.

Counsel of Record

McCasuIin, Imsus & MCCASLIN

1200 Gwynne Building

602 Main Street

Cincinnati, Ohio 45202

(513) 421-4646

Joun W. Hust

CAROLYN A. TAGGART

Renpics, Fry, Kiery & DENNIS

900 Central Trust Tower

5 West Fourth Street

Cincinnati, Ohio 45202

(513) 381-9218

Attorneys for Respondents