Baynard v. MaloneBaynard v. Malone
- Reporters:
- ,
- Before:
- Wilkins
Lead Opinion
Affirmed by published opinion. Judge WILKINS wrote the majority opinion, in which Chief Judge KEELEY joined. Judge MICHAEL wrote an opinion concurring in part and dissenting in part.
OPINION
WILKINS, Circuit Judge:Jackson Baynard brought this action pursuant to
I.
Prior to and during the 1990-91 school year, Craig J. Lawson was employed by the ACSB as a sixth-grade teacher at Charles Barrett Elementary School, where Malone was the principal.1 In March 1990, a former student of Lawson’s, Steven Leekie, met with Malone and informed her that he had been sexually molested by Lawson when he (Leekie) was a sixth-grade student, some 15 years earlier. Leekie warned Malone that Lawson was a pedophile and advised her to watch out for certain behavior by Lawson, such as spending extra time with a student. Leck-ie stated, however, that he was not interested in pressing charges against Lawson. The following day, Leckie’s mother telephoned Malone and confirmed her son’s story. Malone took no action after receiving this information and did not relay the information to anyone. She did not report the alleged incident to Child Protective Services (CPS) because of Leckie’s unwillingness to become involved in a police investigation. Later that spring, an unidentified woman informed Malone during a school function that Lawson had sexually molested a student. Malone did not take the woman’s name or make any record of this conversation.
In the fall of 1990, Baynard transferred to Charles Barrett Elementary and was assigned to Lawson’s classroom. Lawson began to molest Baynard almost immediately, and the abuse continued until Bay-nard entered college. The abuse occurred on school grounds before, during, and after school hours; Lawson also abused Bay-nard during camping trips and at Lawson’s home.
In November 1990, the school librarian, Lillian Newman, visited Lawson’s classroom before school hours and observed Baynard sitting on Lawson’s lap (“the lap-sitting incident”). Lawson’s arm was around Baynard’s shoulders, and their faces were very close together. When Lawson saw Newman he jumped up, spilling Baynard to the floor. Newman thought the behavior was inappropriate and related the incident to Malone later that morning. Malone spoke with Lawson, who apparently convinced her that what Newman had observed was an innocent “father-son chat.” J.A. 166. Malone advised Lawson that she had observed excessive physical contact between Baynard and Lawson, which she characterized as being initiated by Baynard. Malone counseled Lawson to limit physical contact with students, and Lawson promised to admonish Baynard to behave more appropriately. Malone took no further action at that time.
Between Thanksgiving and Christmas, a teacher at Barrett, Rosemary Herman, reported to Malone that a neighbor had informed her that Lawson abused children. Malone responded that “she couldn’t tell [Herman] not to say anything about this, because it was out in the neighborhood.” Id. at 368. According to Malone’s testimony, it was not until this point that she perceived a danger to Lawson’s students. In January 1991, she contacted Beckhoff, the ACSB’s personnel director. Malone told Beckhoff about the accusation made by Leekie in March 1990 and Herman’s report and informed Beckhoff that Lawson was very physical with the students. However, Malone did not mention Baynard or tell Beckhoff about the lap-sitting incident.
Beckhoffs part of the investigation involved interviewing Leckie and his parents and the husband of the neighbor who had spoken to Herman.2 Beckhoff also examined Lawson’s personnel file and contacted Lawson’s former school district in New Hampshire. As a result of his investigation, Beckhoff came to believe that Leckie had been abused by Lawson. Beckhoff contacted CPS, which informed him that it could not investigate Leckie’s allegations because Leckie was an adult. Beckhoff then involved the Alexandria City Police Department. Leckie cooperated with the police investigation but refused to initiate a tape-recorded telephone conversation with Lawson. As a result, the investigation was closed for lack of evidence.
Soon after the police investigation was closed, Lawson resigned from Barrett. He nevertheless continued to abuse Bay-nard until Baynard was a freshman in college. Baynard finally reported the abuse, and Lawson was arrested and convicted.
In April 1999, Baynard brought this action alleging, as is relevant to this appeal, that the ACSB had violated Title IX and that Malone, Beckhoff, and Masem were liable under
Malone now appeals, arguing that the district court erred in denying her motion for judgment as a matter of law. Baynard cross-appeals, maintaining that the district court erred in granting judgment as a matter of law to Beckhoff, Masem, and the ACSB.3
- II.
We first consider Malone’s appeal of the denial of her motion for judgment as a matter of law, which we review de novo, see Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 279 (4th Cir.1999). We must view the evidence in the light most favorable to Baynard, the nonmovant, and draw all reasonable inferences in his favor
There is no dispute concerning the legal standards that govern Baynard’s
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices[ ]; and (3) that there was an affirmative causal link between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.
Shaw, 13 F.3d at 799 (internal quotation marks omitted).
Malone first argues that there is no evidence to support a conclusion that she had actual or constructive knowledge of a risk to Lawson’s students.5 We disagree. By the end of 1990, Malone knew that Leckie claimed to have been abused by Lawson; that Newman had observed Baynard sitting on Lawson’s lap in a manner Newman believed to be inappropriate; that Lawson was very physical with his students, often putting his arm around them in the halls; and that Lawson frequently took male students on camping trips at which no other adults were present. Malone argues that all of these facts, except the report from Leckie, are subject to benign interpretation. While this is true, it is also beside the point. A reasonable jury could conclude from the evidence presented that the conduct of which Malone was aware provided her with at least constructive knowledge of an unreasonable risk of constitutional injury to Lawson’s students.
Based upon the evidence presented at trial, a rational jury could conclude that Malone was deliberately indifferent to the risk that Lawson was abusing his students, particularly Baynard. Even if Malone’s response to the initial report from Leckie in the Spring of 1990 was reasonable, a factfinder could reasonably infer that Malone’s failure to respond to mounting evidence of potential misconduct by Lawson exhibited deliberate indifference. In particular, Malone’s desultory efforts at “monitoring” Lawson support the verdict.6 Accordingly, we affirm the denial of Malone’s motion for judgment as a matter of law.
III.
On cross-appeal, Baynard contends that the district court erred in granting judgment as a matter of law to Beckhoff, Ma-sem, and the ACSB. With respect to Beck-hoff and Masem, Baynard contends that the district court erred in concluding that no rational jury could find deliberate indifference. With respect to the ACSB, Bay-nard maintains that the district court erred in concluding that the ACSB could not be held vicariously liable under Title IX for the deliberate indifference of Malone. We affirm all three rulings.
A.
In light of the evidence detailed above, we have little difficulty in concluding that no rational jury could find that Beckhoff was deliberately indifferent to a risk that Lawson was molesting his students. Beckhoff instituted a thorough investigation immediately upon receiving the report from Malone, during which he interviewed Leckie and others who had raised allegations regarding Lawson’s past conduct. Beckhoff further instructed Malone, who was responsible for the day-today supervision of Lawson, to closely monitor Lawson and report any incidents or complaints. Importantly, Beckhoff never had any knowledge of the lap-sitting incident.7
B.
We next turn to Baynard’s claim that the district court erred in granting judgment as a matter of law to the ACSB. As is relevant here, Title IX provides that “[n]o person in the United States shall, on the basis of sex, ... be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
1.
Title IX conditions “an offer of funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, the Supreme Court explained that the contractual nature of Title IX requires that a funding recipient have notice that it may be liable for a monetary award, i.e., it must actually be aware of the discrimination and fail to remedy it. See id. at 287-88, 118 S.Ct. 1989. In other words, a school district may be held liable under Title IX “only for its own misconduct”; the implied damages remedy is available only when “the funding recipient engages in intentional conduct that violates the clear terms of the statute.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 642, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).
In accordance with these considerations, the Supreme Court has expressly rejected the use of “principles of respondeat superior or constructive notice” for imposing liability on a school district under Title IX. Gebser, 524 U.S. at 285, 118 S.Ct. 1989. Rather, the Court held in Gebser that “a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [district’s] behalf has actual knowledge of discrimination” and is deliberately indifferent to it. Id. at 290, 118 S.Ct. 1989. As the Fifth Circuit phrased the test in a preGebser ruling,
a school district can be liable for teacher-student sexual harassment under Title IX only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so.
Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir.1997).
The partial dissent asserts that the standard we apply is too strict and that the notice requirement is satisfied by actual notice of a substantial risk of ongoing
To the extent there is any doubt about the nature of the actual notice requirement articulated in Gebser, it is removed by the subsequent opinion of the Court in Davis. In recounting the Gebser holding, the Davis court stated, “In Gebser, we concluded that a recipient of federal education funds may be liable in damages under Title IX where it is deliberately indifferent to known acts of sexual harassment by a teacher.” Davis, 526 U.S. at 641, 119 S.Ct. 1661 (emphasis added). The Court further explained that in Gebser,
we rejected the use of agency principles to impute liability to the district for the misconduct of its teachers. Likewise, we declined the invitation to impose liability under what amounted to a negligence standard — holding the district liable for its failure to react to teacher-student harassment of which it knew or should have known. Rather, we concluded that the district could be liable for damages only where the district itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge.
Davis, 526 U.S. at 642, 119 S.Ct. 1661 (citations omitted) (second emphasis added).
2.
We agree with the district court that no rational jury could find the Gebser standard satisfied here.8 In the first place, no rational jury could conclude that Malone — the relevant official for purposes of the ACSB’s liability under Title IX— had actual notice that Lawson was abusing one of his students.9 Although Malone certainly should have been aware of the potential for such abuse, and for this reason was properly held liable under
Secondly, no rational jury could find that Malone was invested with the power to take corrective action on
We agree with the district court that the principal of a public school in Virginia cannot be considered the functional equivalent of the school district. There is no question that a principal in the Virginia school system possesses substantial authority over the school to which he or she is assigned. For example, a principal must “provide instructional leadership,” is responsible for the administration of the school, and must supervise its operations and management.
Critically absent from the scope of a principal’s authority, however, are the powers that would make a principal the proxy of the school district: the power to hire, fire, transfer, or suspend teachers. In Virginia, those powers are reserved exclusively to the school district; a principal may only make recommendations regarding such matters. See
IV.
For the reasons set forth above, we conclude that the district court correctly denied Malone’s motion for judgment as a matter of law and correctly granted the motions of Beckhoff, Masem, and the ACSB. Accordingly, we affirm.
AFFIRMED.
Notes
. Lawson is not a party to this appeal.
. Beckhoff informed Masem, the superintendent of the ACSB, that the investigation of Lawson was occurring and periodically up- • dated Masem on its progress. Masem took no active role in the investigation.
. Baynard also makes a conclusory argument that he was entitled to a larger award of attorneys’ fees from Malone. We reject this claim without further discussion.
. There is no dispute that the molestation of Baynard by Lawson was a “constitutional injury.”
. Malone argues primarily that she was not deliberately indifferent to a risk of constitutional injury to Baynard. However, Shaw makes clear that the appropriate inquiry is whether Malone was deliberately indifferent to a risk that Lawson was abusing any of his students. See id. (noting that the inquiry is whether supervisor was on notice of conduct that posed a risk of constitutional injury “to citizens like the plaintiff” (emphasis added)).
. Additionally, Malone relies on Jones, 104 F.3d at 627, for the proposition that no rational jury could find a causal link between her deliberate indifference and the constitutional injury suffered by Baynard. We reject Malone’s causation argument on the reasoning of the district court. See Baynard, 112 F.Supp.2d at 529-30.
. Although Beckhoff was aware that Lawson had been seen walking down the hallway of the school with his arm around Baynard, such practices were common among teachers at that time.
. Although the district court and the parties address only the second prong of the Gebser standard’ — whether knowledge of discrimination was possessed by an individual with authority to act for the school district — we conclude that the record also supports affirmance on the “actual notice” prong. See Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (explaining that “we may affirm a judgment for any reason appearing on the record”).
. We note that a Title IX plaintiff is not required to demonstrate actual knowledge that a particular student was being abused. We believe that the actual notice requirement could have been satisfied, for example, if Malone had had actual knowledge that Lawson was currently abusing one of his students, even without any indication of which student was being abused.
Concurrence Opinion
concurring in part and dissenting in part:
I concur in parts I, II, and III.A. of the majority opinion, but I respectfully dissent from part III.B. The jury’s verdict against the school board on Title IX should be reinstated because (1) Malone (the principal) had actual knowledge of a substantial risk of sexual abuse to students in her elementary school and (2) she had the authority to institute corrective measures to eliminate the risk.
Title IX provides that “[n]o person ... shall, on the basis of sex ... be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
I.
The majority affirms the grant of judgment as a matter of law to the school board, holding that under Gebser “Title IX liability may be imposed only upon a showing that school district officials possessed actual knowledge of the discriminatory conduct in question.” Ante at 238. The majority explains that “the actual notice requirement [can be] satisfied, for example, if [the appropriate official] had had actual knowledge that [the teacher] was currently abusing one of his students, even without any indication of which student was being abused.” Ante at 288 n. 9. The explanation is a step in the right direction, but it still means that the actual notice standard is satisfied only if the school board official was aware of current sexual abuse to someone in the student body (not necessarily the eventual plaintiff). This is wrong, I respectfully suggest, because Gebser does not require that the appropriate official have actual knowledge of current abuse. Rather, Gebser leaves room for an actual notice standard that requires the appropriate official to have actual knowledge of at least a substantial risk of sexual abuse (or discrimination).
Gebser held that a complaint by parents that a teacher “had made inappropriate [sexually suggestive] comments during class ... was plainly insufficient to alert the principal to the possibility that [the teacher] was involved in a sexual relationship with a student.” Gebser, 524 U.S. at 291, 118 S.Ct. 1989. Thus, while Gebser makes clear that the actual notice standard requires more than a complaint about inappropriate remarks, the case does not definitively establish the boundaries of actual notice. By insisting that actual notice cannot be satisfied by anything less than actual knowledge of current abuse, the majority’s new standard “set[s] the bar [too] high.” Doe v. Sch. Admin. Dist. No. 19, 66 F.Supp.2d 57, 63 (D.Me.1999).* Under the majority’s standard a school board will escape liability even if an appropriate official knew that a teacher was engaging in behavior that raised warning flags of substantial risk as long as the official did not actually know that the teacher was abusing a student. The majority’s standard will also let a school board off the hook if its official knew that a teacher had abused a student in the past as long as the official did not know of any current abuse.
These results, brought about by a notice standard that is too restrictive, are inconsistent with the objectives of Title IX and with the actual notice and deliberate indifference theory of liability recognized by the Supreme Court. First, one of Title IX’s principal objectives is to provide effective protection against discriminatory or abusive practices in schools that receive federal funds. See Gebser, 524 U.S. at 286, 118 S.Ct. 1989. Under Title IX a school board has “a duty not to permit teacher-
The proper boundary for what constitutes actual notice lies somewhere between the one adopted by the majority (actual knowledge of current sexual abuse) and the one rejected by Gebser (actual knowledge of sexually suggestive comments in class). I am convinced that the actual notice requirement is met when an appropriate official has actual knowledge of a substantial risk of abuse. An appropriate official has actual knowledge of a substantial risk if she knows of facts indicating a substantial risk and she subjectively believes that the facts signal such a risk. See Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 659 (5th Cir.1997). This is not a constructive notice or respon-deat superior theory, which would impose liability even if the appropriate official had no actual knowledge of anything. Thus, the standard I propose is consistent with Gebser. The Gebser Court was, of course, unwilling to impose liability on school districts that lack any notice of discrimination. “[A] central purpose of requiring notice of the violation ... is to avoid diverting education funding from beneficial uses where a recipient was unaware of discrimination in its programs.” Gebser, 524 U.S. at 289, 118 S.Ct. 1989. Actual knowledge of a substantial risk of abuse, however, provides fair and sufficient warning to a school board that it faces potential liability.
My interpretation of what satisfies Geb-ser ’s actual notice requirement is consistent with that of district courts that have confronted this question. See, e.g., Gordon v. Ottumwa Cmty. Sch. Dist., 115 F.Supp.2d 1077, 1082 (S.D.Iowa 2000) (actual notice “does not set the bar so high that a school district is not put on notice until it receives a clearly credible report of sexual abuse from the plaintiff-student. At some point ... a supervisory school official knows ... that a school employee is a substantial risk to sexually abuse chil
The evidence in this case supports the conclusion that Malone (the principal) actually knew that Lawson (the teacher) posed a substantial risk to the students of Charles Barrett Elementary School. Leckie, one of Lawson’s former student-victims, told Malone that he had been sexually molested by Lawson. Leckie warned Malone to watch out for certain telltale signs, such as whether Lawson was spending extra time with a particular student or giving him rides home. Leckie’s mother also talked to Malone and confirmed her son’s story. Two other members of the community and a teacher informed Malone that Lawson was a pedophile who had abused students. Malone herself witnessed excessive physical contact between Baynard and Lawson in the hallway at school. Specifically, Malone noticed Bay-nard “constantly hanging onto” Lawson, and Malone recognized that this behavior was “really inappropriate for a sixth grade student.” Finally, Malone was aware of an incident of particularly flagrant behavior involving Lawson and Baynard. Newman, the school librarian, walked into Lawson’s classroom one morning before classes began and saw the following: Baynard was sitting on Lawson’s lap, Lawson had his arm around Baynard, their faces were almost touching, and Lawson was whispering to Baynard. When Lawson and Bay-nard saw Newman, an expression of shock crossed their faces. Lawson jumped up immediately, dumping Baynard on the floor. Newman “quickly turned” and walked out of the room. She was upset at what she had seen because “[i]t just didn’t look right” and “was inappropriate.” Newman “didn’t think this is anything you would do with a sixth grade boy sitting on your lap.” Newman promptly reported everything she had seen to Malone. This evidence is sufficient to establish “actual notice” under Title IX because the jury could rationally conclude that Malone knew the facts indicating that Lawson was a substantial risk and that she personally understood that risk.
II.
For a school board to be liable under Title IX, there must be actual notice to an “appropriate” official, that is, an official “who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [school board’s] behalf.” Gebser, 524 U.S. at 290, 118 S.Ct. 1989. Even though Malone, as school principal, had supervisory authority over Lawson, the majority concludes that Malone is not an appropriate official because her authority over personnel matters was limited to making recommendations and she “had no independent authority to suspend, reassign, or terminate Lawson.” Ante at 239. I disagree.
The principal is the highest ranking school official present at the school every day, and she performs many functions on behalf of the school board. Cf. Banks v. Sellers, 224 Va. 168, 294 S.E.2d 862, 865 (1982) (referring to the principal as “essentially a counterpart of the [division] superintendent”); Pleasants v. Commonwealth, 214 Va. 646, 203 S.E.2d 114, 116 (1974) (calling the principal “the duly authorized representative of the school board”). She is “responsible for the administration of and shall supervise the operation and man
Virginia statutes and regulations assign to the principal the first line of responsibility for ensuring that the students in her school are safe, particularly from sexual abuse at the hands of their teachers. Cf. Pleasants, 203 S.E.2d at 116 (noting that the principal is required to “look out for the safety of the students”). Other school employees and members of the community are expected to report instances of sexual abuse to the principal. See
By emphasizing Malone’s lack of authority to suspend, terminate, or reassign Lawson, the majority has created an overly narrow concept of an official who has authority “to institute corrective measures.” Malone had the duty and authority to implement various measures that would have contributed to preventing or stopping Lawson’s abuse of Baynard. For instance, as Lawson’s supervisor, Malone could have confronted Lawson with the reports she had received and ordered him to stop the inappropriate behavior she personally witnessed. See Warren v. Reading Sch. Dist., 82 F.Supp.2d 395, 399-400 (E.D.Pa.2000) (holding that principal is an official with authority to institute corrective measures because she has supervisory authority over teachers and the power to question teachers about suspicious behavior). In addition, Malone could have given the division superintendent and the police a prompt and complete report of Lawson’s abusive behavior. See id. at 399 (concluding that the principal’s higher duty to report to appropriate authorities is a corrective measure); see also Booker v. City of Boston, No. CIV.A.97-CV 12534MEL, 2000 WL 1868180, at *3 (D.Mass. Dec.12, 2000) (holding that principal was an official with the authority to end the sexual abuse because he “not only had the authority but the obligation to notify [the Department of Social Services]” (emphasis in original)). Other corrective measures that Malone could have taken include notifying Bay-nard’s parents and properly monitoring Lawson according to the instructions of Beckhoff, the personnel director. The appropriate official’s authority to “institute corrective measures” does not have to include the authority to suspend or fire. As long as the official possesses the ability and the duty to take meaningful steps
Under the majority’s approach, it appears that the class of appropriate officials will be limited, at least in Virginia, to school board members because only the school board has the power to suspend or terminate a teacher. See
III.
In sum, the record supports the conclusion that Malone had actual knowledge that Lawson posed a serious risk and that she had the authority (but failed) to institute corrective measures to address this risk. That is sufficient under Gebser to hold the school board hable under Title IX. I would therefore reverse the district court’s order granting the school board’s motion for judgment as a matter of law.
The majority contends that Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), removes any doubt that the actual notice standard requires actual knowledge of current misconduct. See ante at 238. I disagree. Davis’s primary point is that a school board may be liable under Title IX for student-on-student harassment. And while Davis reaffirms Gebser’s rejection of the constructive notice and re-spondeat superior theories of liability, Davis did not clarify what constitutes actual notice because notice was not at issue. Rather, Davis held that a complaint alleging that a school principal had actual knowledge of student-on-student harassment stated a claim.