*1 VI. genuine
Matthews has created no issue of Thus,
material fact under Texas law. we grant
AFFIRM the district court’s of sum-
mary judgment on all claims. DOE, Plaintiff-Appellee,
Jane INDEPENDENT
TAYLOR SCHOOL
DISTRICT, al., Defendants, et Caplinger capacities
Mike in his official Eddy Lankford in his official and capacities, Defendants-Appel-
individual
lants.
No. 90-8431. Appeals,
United States Court of
Fifth Circuit.
March
445 *2 Ahearn, Servs., Leg. Patricia Dir. of Aus- Assoc,
tin, TX, curiae, for amicus TX of Schl. Brds. *3 Hahn, East, Daves,
Ellen Brian D. Hahn & Levy, Fink, Deats, Craig Vella M. B. Van Os Owen, Austin, TX, & for Jane Doe. POLITZ, Judge, Before Chief GOLDBERG, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, GARZA, DeMOSS, EMILIO M. and Circuit Judges.
E. GRADY JOLLY and W. EUGENE DAVIS, Judges: Circuit sexually Jane Doe was molested high Taylor, teacher Texas. Defen- Lankford, Eddy dant principal Taylor High, Caplinger, and defendant Mike super- Taylor Independent intendent of the School District, supervisory were sued in their ca- pacity by permitting Jane Doe for violations process right of her bodily substantive due integrity. The district court denied their qualified immunity, they claim of and have interlocutory appeal filed this on that issue. hold, first, that We schoolchildren do have a liberty bodily integrity interest in their protected by the Due Process Clause physi- the Fourteenth Amendment and that employee cal sexual abuse a school vio- Second, right. lates that we hold that school supervisory officials can be for held liable failures that result the molestation of a schoolchild if those a failures manifest delib- erate indifference the constitutional Next, of that child. we conclude that each Gwendolyn Gregory, Deputy H. Gen. legal clearly principles these was established Counsel, Steinhilber, August W. Nat. School place. when the violations took Fi- Assoc., Alexandria, VA, Brds. cu- amicus nally, analyzing Caplinger whether riae, Nat. School Brd. Assoc. Lankford fulfilled the owed to Doe, Jane we reverse the district court’s Myra Schexnayder, Vinson & Elkins L.L.P., immunity Caplinger, denial of Feldman, defendant David M. Feldman & Houston, TX, immunity affirm Lank- Rosenberg, Caplinger for M. but we its denial and E. Lankford. ford. circulating sophomore) were then faculty among among but also students FACTS1 Taylor. favor- town residents of Stroud’s Stroud, twenty- Lynn Defendant Jesse well-known in the classroom was also itism sys- public education of Texas’s
year veteran addition, community. within the school Taylor Indepen- tem, by the employed new female had also befriended Stroud biology as a teacher dent District School student, began inap- freshman similar until 1987. It was from 1981 assistant coach (note-writing, gift-giv- propriate relationship community that the school no secret within etc.) class, walking Princi- ing, with her. inappropriately to- Stroud behaved Coach pal approached Lankford Stroud outside the young female students ward a number of during the 1985 football season fleldhouse Taylor *4 employment at of his over the course friendly” spoke being him “too and about to conceal his High. made little effort He sophomore with the student. he wrote fancy for these female students: truck, them, drive his he he let them *5 downplayed Lankford the incident. He bought beverages, her alcoholic took her Livingood put told that he his arms around fieldhouse, back to began caressing time, pep cheerleaders at rallies all the ways. sug- her the most intimate of He joked popular “pro- that he had invented the intercourse, gested but she refused. hugging” bumper stickers often seen on au- Rumors ramp- about Doe and Stroud were Livingood explained tomobiles.2 that the be- among ant faculty by the students and havior that she of a witnessed was different constantly together— time. The two were ilk, inappropriate, was akin to was “child class, walking car, riding going in the out ap- molestation.” When Stroud later to lunch. Doe often went Stroud’s class- incident, proached Lankford to discuss the during periods. room other class Coaches agreed the two men the librarian had frequently and students teased Stroud about overreacted. Lankford not did warn or disci- Doe, relationship mentioning his with often pline mildly any Stroud —even incident —for girls the two freshman he had befriended Indeed, or conduct. Lankford failed to docu- during previous years. the two Sometime in any complaints ment he received about Januаry Lankford heard Stroud Stroud. had taken Doe and other students to rock All of this behavior occurred before defen- concert; that month he also received com- Caplinger Taylor dant Mike ever moved to plaints from four female students in Stroud’s Taylor Independent worked for the School biology class about Stroud’s favoritism to- Caplinger superinten- District. became the spoke ward certain students. Lankford with 1986; Taylor in July dent of the ISD Lank- and, complaint, Stroud about this for the first Caplinger any prob- ford did not inform time, Caplinger possible prob- about notified potential lems—real Stroud or with —with' lems with Coach Stroud. pattern of conduct. Miller, early February Mickey Taylor High Plaintiff Jane Doe entered school, principal Taylor’s 1986; assistant middle August freshman she was a stu- reported Caplinger that at a basketball biology began dent in Stroud’s class. Stroud game behaving in- he had witnessed Stroud by writing personal— his seduction of Doe girls, suggestive appropriately with several freshman often on her home- —comments including sitting papers. began work and test The two Jane Doe. Instead of with ex- team, other; changing telephoning sitting girls was with the notes and each Stroud engaging horseplay girls played he often walked her to-class. took Stroud —the halfheartedly during Doe and her friends to his hair him- as he “defended” lunch cat, bumper slogan you hugged your (dog, 2. The stickers to which Lankford re- "Have child tree, etc.) today?” ferred are emblazoned with some variation of the again, spent refused. several speak Lankford to Once she She Caplinger instructed self. did; incident, nights home over the next few he at the Stroud about this which with Stroud early April director, In late March or Eddy Spiller, spoke also months. the athletic Spiller and Doe had intercourse for the first report. later Stroud with Stroud about years if was fifteen old. Stroud was that he had asked Stroud time. She told Lankford any partner. first “fooling around with of these sexual was Stroud denied girls,” and that Stroud had little old months, next several Over the Stroud acknowledges any such behavior. Lankford repeated contact. oc- Doe had sexual Sex Spiller prompted what that he did not ask locations, off curred at different both on and ques- this direct him to confront Stroud with grounds. Their romantic relation- tion. ship although perhaps not the extent of it— knowledge Taylor Day, gave was common within the Stroud Jane Doe On Valentine’s favorite, students, community, only among my High “To a valentine that read: most sweetest, among faculty parents and the prettiest, nicest sweetheart in the but also many asked a friend change cause need students. Lankford world! Please don’t high you. you. daughter I’m in whose was a student at the love with Forever —for you.” “keep open” A school to his ears for informa- real —I love friend and classmate Doe’s, B., Brittani found the valentine tion about Doe and Stroud. On Stroud’s Jane Pasemann, purse performance it to evaluation Lankford for the in Doe’s and took however, guidance year, there was counselor. Brittani told Pasemann 1986-1987 academic exchange gifts nothing performance about the of notes and be- indicate that Stroud’s Stroud, suspi- anything fully satisfactory. In- tween Doe and and shared her less than deed, having informally Lankford had not even cions that were sexual still two pattern relationship. Pasemann told Brittani documented incident or of con- *6 relating to she had heard the rumors about Stroud and duct Stroud.
Doe, to take the note to and instructed her In June Stroud took Doe and some Principal Lankford. girls, along family, other with his to a local fair, Festival, again
Brittani took the note to Lankford the next the Com where he once office, day; beverages. provided when she went into his he insist- them with alcoholic At present meeting girls that a least of the became intoxicated. ed witness be the one ensure, him, according angrily “that rumors Stroud’s wife left the festival when began dancing won’t start like those about Stroud and Stroud with Doe. Stroud and together, Lankford note and out to a [Doe].” examined the Doe left the festival went field, Later, handwriting admitted that looked like and had sexual intercourse. he Stroud’s, home, spent but told Brittani that he had no and Doe went to his where Doe proof night, again. that it was from Stroud because it was and had intercourse Two signed. parents, prominent Lankford told Brittani concerned both members merely way community, flirting reported Caplinger Stroud had a with the of the girls, behaving inappropriately and that such behavior was Stroud was with Stroud’s festival, “way doing things.” Lankford did not Jane Doe at this that Mrs. Stroud behavior, keep copy the note and did not investi- had left the festival because his further; gate possibility the matter he did not tell and that there was a that he and Su- incident, perintendent Caplinger together. about the Doe had left the festival One of speak parents Caplinger nor did he with Stroud Doe. His also showed notes that daughter. action was to transfer Brittani out Stroud had written to his biology class. Stroud’s report, Caplinger response In to the con- who, Day school-sponsored parents girl according After a Valentine’s tacted dance, spent night story, misbehaving Doe at to the was intoxicated and Jane Stroud’s home; daugh- company Doe had befriended at the festival in the of Doe and Stroud’s ter, spend girl’s had invited Doe to assured him Stroud Stroud. When the mother there, night. again daughter that her had not even at the While Doe was Stroud been festival, home, suggested to her that have intercourse. that she had been sick and (which suspension report as unfounded take an in-sehool would Caplinger dismissed the duties), relieve him of his classroom contacting but investigating further or without Stroud refused. Lankford and Stroud then report with parents Doe’s to discuss Jane Caplinger’s approxi- went over to house at them. mately p.m. evening. 9:30 Caplinger, by now aware of the rumors Caplinger was house, guests in who had left his house reports and Doe and the of his about Stroud accompanied by and went to his office Lank- contacted favoritism the classroom. He There, ford and Stroud. the three men dis- attorney the situation the school’s to discuss Caplinger cussed the situation. and Lank- Stroud, and, concerning apparently at Ca- keep ford warned Stroud to his distance from instruction, plinger’s Lankford contacted the Doe, Jane and that he “if would be fired Authority to see if there Texas Education something going on.” was No further action any reports concerning were about Stroud taken, however; meeting that Ca- any inappropriate behavior at the schools plinger promised had to schedule never took employed. previously he had been where place, and did not Stroud hear from either reports Lankford was told that there were no Caplinger again Lankford or until October Stroud, specifically naming but that the Au- day suspended employment. he was thority anonymous tip had received an about Although stay away Jane Doe was able to inappropriate relationship between from Stroud for the remainder of the sum- Taylor High. coach and a student at vacation, mer when classes resumed July parents Doe’s discovered late summer Stroud’s sexual ad- among posses- photographs of Stroud Doe’s well, vances towards her resumed as inscriptions by sions with such handwritten they began having soon thereafter inter- change again. as: “Please don’t ever Stroud course Lankford admits that he closely pre- no don’t ever leave me. want to be this close watched Stroud more than he viously had. The sexual contact continued always you Lynn love Stroud.” —I —Coach sophomore year, into the fall of Jane Doe’s parents immediately Doe’s scheduled a meet- until October when Doe’s mother found ing Caplinger. meeting, they At the among more love letters from Stroud Jane’s photographs. Caplinger him showed possessions. The then consulted Does confirmed to them that he was aware of family lawyer, agreed who to discuss the concerning rumors Stroud and Doe and told *7 Jane, Upon meeting with Jane. with matter them about the Festival incident. He Corn attorney learned the truth about her meeting promised to convene a of all the sexual involvement with Doe Stroud. ex- parties speaking involved. After with Doe’s plained kept that she had the matter secret parents, Caplinger spoke pri- with Jane Doe repercussions because she feared the of dis- vately in his office. He showed her the closure. parents just presented photographs her had attorney reported the information to inquired to him the nature of her and about Caplinger Coincidentally, on the at once. relationship suggested Doe with Stroud. day, same the mother another female stu- photos just the notes on the were report the administration to dent contacted explicitly “friendly gestures.” She denied daughter also been victimized her had any sexual relations with Stroud. Stroud; grabbed Stroud had the student’s Caplinger Lankford after the meet- called day. Caplinger in class that or- buttocks Does, ing with the who in turn called Stroud. immediately suspended from dered Stroud Upon receiving message, sought Stroud posi- employment. resigned later Stroud Lankford; had a chance out before Lankford charges pled guilty to criminal stem- tion and explain to Stroud that there had been ming his molestation of Jane Doe. meeting concerning pho- the Does some with Jane, given tographs that he had Stroud II vehemently any denied sexual involvement PROCEDURAL HISTORY time, with Doe. For the first Lankford disciplinary consequences. rights § spoke brought Lank- this 1983 civil Jane Doe district, Stroud, against the school suggested resign that he lawsuit ford to Stroud 450 Principal 111
Superintendent Caplinger, U.S. S.Ct. (1991). Supreme expanded charged inter alia that these “The Court has Lankford. She defendants, ‘liberty’ beyond acting color of state the definition of the core while law, rights meaning of that deprived [not of her constitutional textual term include only] privileges [expressly] ... guaranteed by the Fourteenth Amendment’s enumer Clauses, Equal Rights, Protection ated the Bill of [but also] Due Process and Following implicit concept ‘fundamental in the in violation of U.S.C. summary liberty’ ‘deeply of their motions for ordered rooted the denial immunity grounds, history and tradition’ under the Due judgment qualified Ca- Nation’s Id.; appeal. plinger and Lankford filed this Both Process Clause.” see also Bowers Hardwick, 186, 191, they qualified contend that are entitled to S.Ct. (1) (1986); immunity Doe was not L.Ed.2d Hewitt v. because: Jane Helms, 460, 466, 864, 869, right deprived any when she U.S. S.Ct. (2) Stroud; (1983); sexually City 74 L.Ed.2d molested Coach 684-85 Moore v. Cleveland, deprived even if Doe was of a constitutional East of 1932, 1937, duty right, they her no in connection 52 L.Ed.2d 539-40 owed (3) violation; if with this constitutional even The Due Clause of the Four Process deprived of a constitutional Doe was provides teenth Amendment that no state they respect owed her life, “deprive person liberty shall right, these issues of law were not property process without due of law.” The “clearly established” in 1987 the viola- when “Although Court has noted: a liter event, place; tions took reading might suggest al the Clause that it response any duty to the situation satisfied governs only procedures which a owed to Doe. may deprive persons liberty, State for at yeаrs, Mugler least 105 least since Ill Kansas, 31 L.Ed. S.Ct. 1887], [in the Clause has been under DUE PROCESS component stood to contain a substantive A Casey, well....” Planned Parenthood -U.S. -, -, 2791,2804, 120 step deciding The first whether (1992) (citation omitted). L.Ed.2d Caplinger and Lankford are entitled claim component This substantive of the Due Pro- qualified immunity from this lawsuit is to “protects liberty cess Clause individual Constitution, through determine whether the against government regard- ‘certain actions the Fourteenth Amendment’s substantive procedures less fairness of the used to process component, protects school-age due ” implement City them.’ Collins v. Hark- attending public children schools from sexual Heights, -, -, er *8 by employee. abuse inflicted a school “Sec 1061, 1068, 117 261, (quot L.Ed.2d 273 imposes liability tion 1983 for violations of Williams, ing 327, 331, Daniels v. 474 U.S. Constitution, rights protected by the 662, 665, 662, 88 L.Ed.2d 668 arising of violations duties of care out of tort (1986)). McCollan, 137, 146, law.” Baker v. 433, 61 process L.Ed.2d 443 Jane Doe’s substantive due claim (1979). grounded upon premise To state a cause of action under is the that schoolchil- liberty bodily 1983 for violation of the Due Process dren have a interest Clause, plaintiffs they integrity protected by “must show that have that is the Due Pro- recognized ‘liberty property5 asserted a or cess Clause of the Fourteenth Amendment purview upon premise interest within the physical the Fourteenth the sexual Amendment, they intentionally by employee and that were a abuse school violates that recklessly interest, deprived right. early of that even This circuit held as as 1981 that temporarily, right under color of state law.” to be free of state-occasioned “[t]he Grif (5th Johnston, damage bodily 899 F.2d 1435 person’s integrity pro- to a is fith Cir.1990) (citations denied, omitted), by cert. guaran- 498 tected the fourteenth amendment
451
Holmes,
process.” Shillingford
“corporal punishment
infliction of
in public
tee of due
Cir.1981).
(5th
Shilling-
deprivation
schools ‘is a
F.2d
of substantive
due
by
process
arbitrary, capricious,
§a
action
a tourist
when it is
involved
ford
wholly
police
legitimate
unrelated to
against
goal
a New Orleans
officer. Shil-
the
state
maintaining
atmosphere
lingford
attending Mardi Gras festivities
an
was
conducive to
Herndon,
attempted
learning.’”
to take
Fee v.
in New Orleans when he
a
900 F.2d
(5th Cir.)
making
photograph
(quoting
of the officer
an arrest.
Woodard v. Los Fres-
Dist.,
annoyed
Shilling-
Indep.
struck
nos
The officer was
Sch.
732 F.2d
(5th Cir.1984)),
nightstick,
inflicting
phys-
some
ford with his
injury.
ical
found such action sufficient
We
L.Ed.2d
ordinary
the
“to transcend
bounds
tort law
If
protects
the Constitution
a
deprivation
a
and establish
of constitutional
against being
schoolchild
tied to a chair or
rights.”
Id.
266.
against arbitrary paddlings,
surely
then
Shillingford
principle
cited
for this
We
protects
Constitution
a schoolchild from
Independent
law in
v. Ysleta
School
here,
physical sexual
sexually fon
Jefferson
abuse —
District,
Cir.1987),
a
dling
15-year
a
girl
statutory
old school
involving
case
a violation of a schoolchild’s
rape
by
public
schoolteacher.
Stroud’s
process rights by
substantive due
a teacher.
Doe,
sexual abuse of Jane
earlier detailed
The teacher
lashed a second
opinion,
by
this
is not contested
the defen
Jefferson
grade
part
student
to a chair for the better
Thus,
clearly
deprived
dants.
Jane Doe
days. Again,
of two school
we found that
liberty
recognized
of a
interest
by
actions
the stu-
such
teacher violated
process component
substantive due
“
process
‘right
dent’s substantive due
to be
Fourteenth Amendment.3 It is incontrovert
damage
free of
to
bodily integrity
[her]
state-occasioned
bod-
necessarily
ible that
violat
”
ily integrity.’
(quoting Shillingford,
sexually
Id.
ed when a state actor
abuses a
265).
F.2d at
held that
We have also
schoolchild
such misconduct
de-
Although
appellants
argue
particular
seem to
that in
created between the state and
individ-
uals, i.e.,
opinion
DeShaney Winnebago County
duty
protect
its
that the state had a
to
Services,
particular
charge.
Department
individuals in its
It is in this
Social
198-
998, 1005-06,
addressing
argument advocating
103 L.Ed.2d
context—
derivative
(1989),
constitutionally-based duty
part
260-62
Court overruled the
protect
of the state to
citizens from harm
portion
declaring
the existence of
Jefferson
private
"special
actors if those citizens stand in a
process right,
such a
substantive due
such view
relationship”
sug-
state—that the Court
misreading
DeShaney’s.
ais
serious
In De-
gested
protect
that state officials’
citizens
Shaney,
by inju-
a child was rendered comatose
father,
under the Due Process Clause was limited to
(as
private
ries inflicted
his own
persons
those
whose
has been
state)
freedom
affirma-
opposed
plaintiffs argued
The
actor.
tively
by the
restrained
state.
possibili-
because the state had notice of the
appellants
argue
seem to
that because
child,
ty of abuse of the
and in fact had inter-
affirmatively
schoolchildren cannot be said to be
(obviously
relationship
ineffectively)
vened in the
merely
restrained
because
are
abuse,
episode
deprived
before the final
it
school,
compelled
“special
to attend
no
relation-
protection
child of his
afforded
sub-
ship” arises between the schoolchild and the
process.
categorically
stantive due
The Court
state,
possesses
and thus the child
no substantive
rejected
argument
ground
on the
that noth-
process rights
public
due
status as a
in his
ing
requires
in the Due Process Clause
DeShaney
student.
cited remarks from the
protect
liberty
against
its citizens'
interests
simply
court
do not address the issues involved
by private
invasions
actors.
*9
First, DeShaney
suggest
in this case.
does not
plain-
The
then went on to address the
individuals,
Court
that
whether "under the state's care”
argument,
portion
not,
tiffs' alternative
and
is this
it
process rights against
have no due
opinion
appellants
from which the
seek
offending
Consequently, DeShaney
state actor.
support
position
for their
that
owed no
slightest
the
does not
diminish
constitu-
duty
DeShaney
to Jane Doe. The
process rights belonging
tional due
to Jane Doe
plaintiffs argued
Second,
that even if the Due Process
against Lynn
DeShaney
pos-
Stroud.
protect
injuries by
duty imposed
Clause does not
citizens from
sibly relevant to the constitutional
(which
Lankford,
private
actually
Caplinger
actors
assumes that no
on
and
but
if an affir-
occurred),
right
duty
protect
violation of a constitutional
even
mative
students from constitu-
them,
part
may
placed
duty
an affirmative
on the
the state
which
tional violations is
on
a
“special relationships"
nonetheless arise out of
even Jane Doe disavows.
persons.
as well as to
emment entities
child of
vouchsafed
prives the
however,
Court1,
govern
Obviously,
also held that local
there
Amendment.4
Fourteenth
§
sexually
cannot
held liable under
1983 on
for
molest- ments
any justification
is never
interest,
thus,
theory. Similarly,
schoolchild,
respondeat superior
a
we
no state
ing a
and
may
disciplinary
supervisory
that
officials
punitive
have held
analogous to
corporal punishment,
vicariously
objectives
be found
liable for the actions
attendant
§
might support
Lopez
it.5
1983.6
v.
which
subordinates
Dist.,
351,
Indep.
F.2d
Houston
Sch.
(5th Cir.1987) (citing Thibodeaux v. Arcen
B
eaux,
(5th Cir.1985)).
737,
768 F.2d
physical
Having concluded that Stroud’s
of Jane Doe violated her consti-
sexual abuse
supervisors
This circuit has held that
can
process,
right
due
we
tutional
to substantive
“gross negligence”
for
or “deliber-
be liable
officials,
whether
school
next must decide
ate
to violations of their subor-
indifference”
case,
any duty
appellants in this
owe
like the
Doffer,
In
dinates.
Hinshaw
when a subordinate violаtes
to a schoolchild
(5th
1260,
Cir.1986),
Hinshaw sued both
rights.
Section
that child’s constitutional
depu-
police
deputy
chief and his
for the
who,
against anyone
provides
a claim
ty’s
arresting
Hin-
excessive use of force
law, deprives
“under color of’ state
another
shaw,
police
had come
station to
who
to the
rights. 42
of his or her constitutional
U.S.C.
investigate
report
police
ar-
a
had
see,
1983;
e.g.,
City
§
Harker
Collins
roughed up
rested and
his son.
estab-
We
— U.S. -, -,
1061,
Heights,
S.Ct.
three-part
supervisory
for
lished a
test
liabil-
(1992).
1066,
261,
117 L.Ed.2d
1)
which,
ity
plaintiff
“the
must show that:
City Department
police
supervise
York
chief failed to
or train
In Monell v. New
2)
Services,
officer,
691-94, 98
a causal connection existed
Social
2018, 2037-38,
supervise
56 L.Ed.2d
635-38
between the failure to
or train and
3)
(1978),
Supreme
plaintiffs rights,
held that
the violation of the
Court
Con-
apply
gov-
supervise
gress intended
1983 to
to local
such failure
or train amounted
Caplinger argue
4. Lankford and
first
duct is taken under color of state law.
Id. at
facts,
were not taken under
Stroud's actions
color
1188. As demonstrated
above
They rely
Indepen
missing
state law.
D.T. M.T. v.
clearly pres-
nexus that was
in D.T. was
dent School District No.
supervisory
rights.
than the standard of
constitutional
stringent
be no less
entities that
liability
public
for the
standard,
Using
adopt
we
(footnote omitted));
Greason
serve.”
test,
following
personal
which determines the
(11th
829,
Cir.1990);
Kemp,
F.2d
837
891
liаbility
in physical
of school officials
sexual
Dist.,
Area Sch.
Stoneking v. Bradford
supervisory
cases. A
abuse
school official
(3d Cir.1989)
II),
720,
(Stoneking
F.2d
personally
can be held
liable for a subor
denied,
1044, 110
840, 107
cert.
elementary
dinate’s violation of an
or second
(1990);
Special
Doe “A” v.
L.Ed.2d 835
Jane
ary
right
student’s
school.
constitutional
(8th
Dist.,
Cir.1990).
Sch.
901 F.2d
bodily integrity
physical
sexual abuse
plaintiff
if
cases
establishes that:
There are other differences be
(1) the defendant
learned of facts or a
example,
this case. For
tween Canton and
pattern
inappropriate
sexual behav-
City
a different kind of
Canton involved
pointing plainly
ior
a subordinate
train,
supervisory liability, failure to
from
toward
conclusion that the subor-
Moreover,
plaintiff in
that involved here.
sexually abusing
dinate was
the stu-
City
alleged a
Canton
violation
dent; and
process right
substantive due
to receive med
(2) the defendant demonstrated deliberate
plaintiff
ical attention whereas the
in this
indifference toward the constitutional
alleges
case
a violation of her substantive due
by failing
of the student
to take
process right to be free from sexual abuse.
obviously necessary
action that was
cases, however,
The similarities between the
abuse;
prevent
stop
important
are more
than the differences:
(3) such failure caused a constitutional in-
alleged
supervi
Both eases involve
failures of
jury to the student.
prevent
process
sors to
substantive due
viola
tions occasioned
subordinates.8
C
Thus,
Independent
in Gonzalez v. Ysleta
District,
(5th
School
996 F.2d
753-60
must next
We
consider these le
Cir.1993),
applied City
we
Canton to an
gal
principles
qualified
the context of
im
elementary
§
school student’s
1983 claim munity.
qualified
Under the
shield
immu
against
supervisory
a school district for
fail
nity, Caplinger and Lankford cannot be held
ures that led to a teacher’s violation of her
(1)
§
liable under
1983 unless
Jane Doe’s
process right
bodily
substantive due
secur
liberty interest under the substantive due
ity.9 We concluded that the school district
process
component of
the Fourteenth
supervisory
could be held liable for
failures Amendment,
Caplinger’s
and Lank-
resulting in the molestation of the student
respect
ford’s
to Jane Doe’s consti
only if those failures “manifested a deliberate
right
“clearly
tutional
were
established” at
indifference to the welfare of the school chil
place.
the time these events took
See Stem
Ahearn,
Cir.1990),
dren.” Id.
8. Even if the
constitutional violation
of a constitutional violation derives
City
issue,
were different from that involved in
of Can-
particular
provision at
ton, the deliberate indifference standard for lia-
Williams,
from 1983. Daniels v.
329-30,
bility
apply.
would
As the
Court ex-
88 L.Ed.2d
plained,
liability
this standard of
derives from the
(1986);
Dist.,
Indep.
v. Ysleta
Sch.
Gonzalez
language
provides
remedy
§of
which
(5th Cir.1993).
F.2d
who,
law,
against anyone
under color of state
subjected
"causes”
to be
to a
another
violation of
9. The school district conceded that the elementa-
Canton,
rights. City
his or her constitutional
ry school teacher's molestation of one of his
455
a section
sufficiently clear
There has never been
1983 case
right must be
tours of
accusing
selling
welfare officials of
foster
understand
official would
that a reasonable
slavery;
into
it does not follow
children
right.”
doing
that
is
violates
that what he
arose,
if
a
the officials
such case
would
635, 640, 107
Creighton,
v.
Anderson
liability....
damages
immunе
be
(1987).
3039,
523,
3034,
531
97 L.Ed.2d
S.Ct.
“clearly
Murphy Morgan,
does not nec
established”
K.H. ex rel.
v.
914 F.2d
The term
(7th Cir.1990).
846,
“commanding precedent”
851
This case
essarily refer
involves
outrageous
similarly egregious
at
conduct.
“factually on all-fours with the case
that is
Indeed,
crystal
ques
this much seems
clear: No
bar,”
“very action in
that holds the
public
in 1987
reasonable
school official
Jefferson,
lished
Not
was the
violation
Anderson,
1987,
483
apparent.”
clearly
in
but Lankford’s
[is]
unlawfulness
established
Caplinger’s duty
respect
at
97 L.Ed.2d at
to that
clearly
way,
must observe violation was also
established at that
Put another
officials
531.
legal
Lopez,
time.
a student who was knocked
well-developed
principles.”
“general,
during
fight
unconscious
a
on a school bus
Jefferson,
Cir.1982), generally that: we observed
Although supervisory officials cannot be D solely of their held liable on basis relationship employer-employee with a Having established that Jane Doe’s consti- tortfeasor, they may be liable when right bodily integrity ap- tutional and the inaction, including a own action or failure pellants’ duty respect to that were gross negli- supervise that amounts to clearly established in 1987when these events indifference, gence proxi- or deliberate occurred, whether, we must determine on the mate cause of the violation. us, Caplinger record before Lankford and municipality’s superviso We also held that a they have that established satisfied then- ry liability police for a officer’s violation of a Doe, duty to and are thus entitled to sum- rights depended citizen’s constitutional on a mary judgment as a matter of law.11 that, showing among things, other the munic ipality displayed “gross negligence amount plaintiff in this case has ad ing Languirand to conscious indifference.” summary judgment duced clear evidence of Cir.1983), Hayden, 717 F.2d deliberate indifference defendant Lank- 1215, 104 cert. rights.12 By ford toward her constitutional (1984); L.Ed.2d 363 see also Hinshaw v. certainly Lankford had received notice (5th Cir.1986).
Doffer,
In precedent, the face of this Lank- ed misconduct of sexual nature. He had Caplinger point authority ford and to no earlier, spoken years with Stroud two involving circuit from this school officials being friendly” par about “too with a reasonably which would enable them to be ticular female lieve, student. He had received they deliberately could be complaints parents from fa about Stroud’s indifferent to their subordinate’s violation of girls voritism toward certain in the class escape a student’s constitutional supervisory liability fact, reported room. librarian 1983. In inappropriate Lopez arguably and our earlier Stroud’s behavior with female cases an occasions, duty part nounced a broader on the of school students to Lankford on two today. adopt Lopez, point officials than we at one See described the incident she wit By narrowing F.2d at 355. impor- nessed as “child molestation.” More duct, appeal 11. Because this case is on from the denial the standard of deliberate indifference summary judgment, of a motion for we review would be difficult to establish. required the record de novo. We are to review suggested opinion today It has been that our light the facts in the most favorable the non- might subject force school official to himself to moving parly here, Jane Doe. SeeInternational liability by acting incomplete on information. Inc., Shortstop, Rally’s, Inc. misinterpretation This should be corrected. (5th Cir.1991), denied, - U.S.-, Surely expose an official does not himself to (1992). Any liability by reporting superi- the information to a disputes of fact are therefore resolved in Jane or; by advising a subordinate state actor of Doe's favor. See id. rumors or information that the official has re- warning 12. Deliberate indifference ceived and the actor that severe disci- will often be a fact- and, question plinary laden it is in this conse- action will be taken if the rumors are case— —as impossible confirmed; quently, bright plausible it is for us to draw or if information of miscon- inquiry. many lines such an We can foresee duct continues to come to his attention to investi- good information; responses might gate disputes faith but ineffective such or if arise as information, satisfy tions, obligation reliability a school official's in these situa- of that to hold a hear- actor, door, e.g., warning notifying ing justified- the state if resolve such dis- —closed —to short, parents, removing putes. many student’s the student frotn there are courses of ac- Indeed, open negate the teacher’s class. if Lankford had tion to a school official that deliber- sternly early stay away expose warned Stroud on to ate indifference but do not the official to liability grоunds taking premature from Doe or risk termination and then Lankford disci- plinary against received no later indication of further miscon- action a state actor. removing steps of Doe from Stroud’s knowledge that obvious received tantly, Lankford inappropriate directing stay away sexual directing his class and Stroud to Stroud He had specifically toward Doe. and Doe stated that Doe. Both Stroud behavior report of Mickey Miller’s begin having about until heard did not sexual intercourse girls, in- freshman misconduct with early April jury Stroud’s A could late March or Doe, school basketball cluding at a Jane reasonably Lankford taken conclude had jury find that Lankford then game. A could obviously necessary in re- actions that were signal that Stroud and Doe a clear received indeed, sponse if to the he had valentine — relationship when engaged in a sexual were responded relationship might at all—the *14 gave him valentine in Febru- Brittani B. point at that and the have been derailed year, Lankford re- ary Later that rights of would not have violation Jane Doe’s inappropriate reports about Stroud’s ceived Thus, prolonged. been as severe Jane Doe at the Com Festival with behavior has, in to Doe a manner sufficient withstand parents had discovered that Doe’s learned summary judgment, a motion for stated photographs in Doe’s autographed Stroud’s claim under 1983 that defendant Lankford Thus, facts construed possession. under the deliberately was indifferent to his subor- light favorable to Jane Doe in the most violation of her constitutional dinate’s re- considering information Lankford all the bodily integrity.13 to Doe, relationship with ceived about Stroud’s respect defendant Ca- With whether prong of the test has the first she satisfied lawsuit, plinger is immune from this howev- Lankford —knowl- respect to defendant er, presented different the evidence tells a pattern inappropriate of edge of facts or a story. Caplinger any of The first time heard plainly pointing sexual behavior Stroud potential was when he misconduct Stroud sexually that the conclusion he was toward report Mickey Miller in received the abusing Doe. February promptly 1987. He notified Lank- illustrated, in suffi- also a manner Doe has speak ford and instructed him to with Stroud motion, summary judgment to survive a cient the incident. There is no evidence about deliberate indif- that Lankford demonstrated Caplinger at that that Lankford informed by failing to take to the offensive acts ference behavior, past and it is time about Stroud’s obviously necessary pre- action that undisputed never documented that Lankford stop When certain vent or Stroud’s abuse. any reports he had received about favorit- complained about Stroud’s parents Stroud. ism, suggested that their children Lankford any other re- Caplinger did not receive “jealous” of the favorite students. were ports until June when two about Stroud similarly the librarian’s Lankford dismissed reported Festival incident parents the Corn perhaps report “child molestation.” of Again, Caplinger promptly respond- to him. apathy, re- striking example of his he most parents one of the by contacting the of ed presentation of the sponded to Brittani B.’s reportedly at allegedly misbehaving students appeared to valentine —which he admitted ac- assured that the festival. He was transferring handwriting by bear Stroud’s at the event. We Doe) cused student was not even (not Brittani out of Stroud’s class. Jane say Caplinger’s decision not cannot valentine bothered to discuss the He never further, after the investigation Stroud, Doe, pursue the Caplinger, incident with child had not parents him that their any assured record parents. Doe’s He did not Festival, exhibited attended the Com inappropriate conduct even complaints these deliberate indifference. personnel file. He did not take Stroud’s it; conduct, similarly, jury memory argues Stroud had no his as a matter 13. Lankford law, meeting might deliberate in- resulted could not have manifested conclude that the other initiative, violation of Doe's constitutional difference to the rights but because not from Lankford’s with Stroud two times because he met Although Caplinger's Lankford involvement. response complaints activities. trial, about Stroud’s arguments certainly these free to make facts, however, subject varying in- are These summary stage unavailing they at the are conclude, terpretations. jury exam- A could judgment. meeting place, ple, never took because that one parents Caplinger gues Caplinger met with and Lankford should be When Doe’s because, July concerning photographs of as in Stroud liable the ease her due claim, responded deliberately Caplinger again appropri- process were indif- ately, ineffectively, to situation. He if ferent to the unconstitutional conduct that questioned privately injury. Doe met with Jane caused her relationship with Stroud. He her about Assuming sexually that Stroud abused Stroud, verbally reprimanded also met with Doe, contest, which the defendants do not inappropriate him comments on about the pro- violated Doe’s Stroud substantive due keep him to photographs, warned cess as matter of law. Doe does not Doe, and informed him of distance from Jane damages claim that the that she could recov- consequences if the contin- misconduct alleged er from Lankford based on Stroud’s ued. equal protection rights of her violation would damages more extensive than the July Although photograph after the she could recover based on the substantive Caplinger incident had received notice of a process due argue violation. Nor does she pattern inappropriate sexual behavior suf *15 that, how, Caplinger super- or show could be test, satisfy prong first ficient to visorily equal protection liable for violations certainly respond he did not to the miscon predicated on Stroud’s sexual abuse when he duct with deliberate indifference. He in supervisorily is not liable for substantive due speak structed Lankford to with Stroud process involving violations the same con- game; about the incident at the basketball he Consequently, duct. we need not reach the personally investigated report concerning question equal pro- of whether Doe an states report; the Corn Festival and he met with tection claim. immediately learning pho Stroud after conduct, tographs, reprimanded him for his unequivocally him warned of the conse V any quences if further misconduct was re question propri- The sole before us is the ineffective, ported. His actions were but not ety of qualified the district court’s denial of deliberately Summary judgment indifferent. immunity appellant to the school officials. granted should have been defendant Ca argument The school officials’ main that the
plinger grounds qualified immunity. on the liability of a school ignoring official for 15-year subordinate’s sexual abuse of a old
IV clearly student was not established in 1987. EQUAL PROTECTION however, Appellants, agree that plaintiff also clearly protected asserts Stroud’s be- the Constitution the most havior toward violated her constitutional hardened criminal inmate from abuse rights Equal guard imposed liability under the Protection Clause of guard’s on the supervisor the Fourteenth Amendment. consciously Doe advances who was indifferent to theories, separate equal protection Similarly, three appellants such abuse. cannot sеr- iously based on two different sorts of liability § behavior. contest that the of a argues physical police clearly She first sexual chief was not established in subjected abuse to which consciously Stroud her consti- 1987 when the chief was indiffer- harassment, argues tuted sexual physical which she ent to his officer’s abuse of a citizen. short, Equal supervisory liability offensive to the Protection Clause. for deliberate Second, she contends Stroud’s classroom indifference to constitutional violations com- favoritism toward her clearly also constituted sexual mitted subordinates was estab- Finally, argues harassment. she lished when the in this events case occurred. Consequently, classroom favoritism argument constituted the more the school officials’ typical disparate gender immunity they form of discrimina- that with constitutional could tion, which ignore physical Court has found to sexual teacher/eoach’s prohibited by Equal impressionable 15-year Protection abuse of an old stu- theories, Following is, and, practical Clause. these Doe ar- perverse, dent matter Davis, Jolly matter, by Judges am free supported by the case carried legal aas by writing separately legally engage nor the dissents argument neither law. Such majority’s gloss add a to the reason- any and to sense. logically mates ing. above, we affirm stated For the reasons denying qualified court’s order
the district
I.
immunity
Lankford and reverse
to defendant
Viterna,
denying qualified
In Bush v.
Judge
argues
Jones
that a child has no
H.,
122, 109
mental. See Michael
constitutionally
protected
being
interest
physical
free from
sexual abuse
S.Ct. at 2341. Whether a foundation in
teacher
state
position
authority
who uses his
history
seduce
and federal laws and their
is either
respectfully disagree
her.
with that result
necessary
recognition
or sufficient for the
methodology
quotes
and the
behind it. She
right may
be contested. That such a foun
apply
pro
but does not
Court’s
supports recognition
right
dation
of a
is unc
that,
nouncement Michael H.
“the term ontroversial.2
‘liberty’ in the Due Process Clause extends
Nevertheless, Judge Jones rests her claim
beyond
physical
freedom from
restraint.”
the Constitution does not afford Doe
D.,
Michael H. v. Gerald
protection
part
on the fact that
(1989)
state and
provide
remedy
federal laws
aDoe
Sisters,
(citing
Society
Pierce v.
complaints.
concludes,
Judge
Jones
“The at-
L.Ed. 1070
Nebraska,
Meyer
‘right’
tention
that this
has
through-
received
(1923)).
tion of
manipulate
not, however,
interest does
Doe into sex
diminish the force
arbitrary
could be other than
capricious.
legitimate
protection.
It
a claim for
served no
state
See
goal. Judge
1, 11,
appears
Hughes,
Jones at times
Snowden v.
to rec
321 U.S.
64 S.Ct.
ognize
397, 402,
(1944) (“state
long history
our
using
action,
state and
463
adopted
has
a stan-
Court
C
determining
a failure to
for
when
act
dard
respon
identify
state actors
Finally, I
the
to “a ‘deliberate’
‘conscious’
amounts
Viterna,
F.2d
795
See
for the violation.
sible
at
109
by municipality.”
a
Id.
choice
definition,
a
deprivation of
the
By
at 1209.
requires
The Court
deliberate
S.Ct. at 1205.
by feder
defined
federally protected
as
(citing
Depart-
Id.
Monell v.
indifference.
claim.
Id.
a
creates
federal
al standards
Servs.,
436 U.S.
98
ment
Social
in
Nevertheless,
a source
law is often
(1978)
state
2018, 2037,
56 L.Ed.2d
S.Ct.
rights. Most
Dodson,
312, 326,
of federal
explicating violations
County v.
Polk
(1981)).
familiar,
drawing on state law
445, 454,
is our
perhaps,
70 L.Ed.2d
prop
had a
a
municipality’s
whether
claimant
a
inaction demonstrates
to determine
Where
rights
Process
the
by the Due
indifference toward
erty right protected
deliberate
individual,
municipality commits an
Id.
the
Amendment.
the Fourteenth
Clause
n
to act rises to the
Its
act of omission.
failure
Board
Education
Cleveland
(citing
choice. Id.
a conscious or deliberate
level of
532, 537,
Loudermill,
Dist.,
Indep. Sch.
also
v. Ysleta
Gonzalez
(1985)
See
1487, 1491,
and Shel
Cir.1993)
(5th
(applying
996 F.2d
Station,
780 F.2d
City College
ton v.
standard).
indifference
deliberate
(5th Cir.),
(1986)).
law
State
91 L.Ed.2d
apply
majority recognizes that we
responsible
identify
persons
us “to
allows
supervisor
A
supervisors.
same standard
rights violation.” Id.
civil
for
identified
[the]
indifference
fail-
acts with deliberate
who
implicit in the conclu-
of course
law is
State
may
his subordinates
ing to train or oversee
the coach with
the state vested
See,
sion
e.g.,
section 1983.
held liable under
be
obvi-
law is more
authority
he abused. State
1262-66
Doffer,
F.2d
Hinshaw
beyond the
Cir.1986)
we move
ously
(5th
po-
at work when
standard to
(applying
put
matter differ-
To
allegedly
immediate actor.
to train and
failed
lice chief who
officer).
circling
guides
Lopez,
ently,
also
supervise police
state law
us
See
may
have caused
fairly
(finding
can be
bus driver
who
said
at 355
actors
F.2d
rights
acting
violation.
“callous indifference”
subjected to
with
hable
Doe to be
properly). An
failing
supervise
section 1983
necessary because
students
Caution
indifference
that evinces deliberate
persons who- omission
liability
imposes
upon
consti-
not,
an individual’s
the violation of
toward
deprivation;
law does
a
cause
may
to an act that
rights
amount
tutional
words,
theory
of vicarious
furnish
other
355;
F.2d at
Lopez, 817
causes the violation.
Rather,
the actors —the
liability.
it locates
Lankford,
Hinshaw,
785 F.2d at
Indep. Sch.
Lopez v. Houston
persons.
school,
Doe’s
demon-
principal
Stroud
Cir.1987).
A
Dist.,
351, 355
indifference.
deliberate
strated such
acted, but did
might
who
have
supervisor
not,
under section
be found
cannot
liable
ignored Stroud’s
again Lankford
Time and
most
Under
that reason alone.
1983 for
Lank-
with students.
inappropriate conduct
pre-
circumstances,
supervisor could have
investigate reports
allega-
did not
ford
rights violation
stopped
vented
behavior
indecent
tions
Stroud’s
Harris, 489
City
way. See
Canton
some
or disci-
warn
rigor. Neither did Lankford
hand,
other
On the
pline Stroud.
.(“In
every in-
virtually
notes,
L.Ed.2d
cannot be said
majority
the same
had his or
person
Caplinger
stance where
has
superintendent.
Caplinger,
city
em-
violated
aware
when he became
action
took
point
improperly.
plaintiff
acting
be able to
§ 1983
ployee,
might
will
have been
Stroud
limited,
so were his
city ‘could have done’
but
something
response
*20
to
His
incident.”). Thus,
actions.
questioning
if
Stroud’s
for
grounds
unfortunate
prevent the
Lank-
than
information
Caplinger
for a suit under
had less
as the
sufficed
basis
inaction
actions do not
ford,
effectively
thus his ineffective
supervisor would
the
section
agree,
attitude.
suggest the same callous
vicariously liable.
therefore,
dants,
that Lankford could be held liable
and remanded for the district court to
under
Caplinger
section 1983 and that
cannot
liability.
determine their
Id. at 1214. See
be.
Carson,
also Miller v.
563 F.2d
n.
(5th Cir.1977) (“when a state official’sviola-
Nevertheless,
reaching
in
this conclusion
tion of
law causes [a
state
constitutional vio-
majority skips
potentially
the
the
determin-
lation], a federal cause of action arises under
ing role of state law at this
in the
point
1983”) (citation omitted);
Adams,
§
Sims v.
analysis.
far
So
we have assumed that the
(5th Cir.1976)
831-32
(holding
placed
state
Caplinger
Lankford and
in the
that cause
action
exists under section 1983
result,
supervisors.
role
egre-
As a
an
mayor
police
where
may
chief
have had
gious failure
obligation
to fulfill their
to over-
obligation
supervise po-
under state law to
see Stroud’s behavior would amount to action
alleged history
liceman with
of racial vio-
part.
may, however,
on their
The state
im-
lence).
pose
greater obligation.
may
It
saddle a
specific duty
state officialwith a
police
to
the
I would first look to state law to determine
risk
unconstitutional acts
others.
the nature
Caplinger’s
of Lankford and
obli-
Viterna,
gations
supervisors.
as
particu-
In
Stroud’s
In
Bush
we considered whether
lar, I
imposed
ask whether
required
the state
such an
would
the state
duty
affirmative
Caplinger
Lankford
specific
on
or
to take
Texas Commission
action
the
on Jail Standards.
upon learning
may
A
jails
class of inmates in
that Stroud
county
Texas
have been
sued
sexually abusing
his students.
asking
places
section 1983
Texas
district court to
on
compel
duty
a school principal
discipline;
the
the
to
Commission to
it
improve condi
places
also
county jails.
principal
tions
the
supervi-
in the
under the
indifference was BARKSDALE, M. GARZA and EMILIO judgment, join majority’s ac- therefore DeMOSS, join, dissenting in Judges, Circuit rejecting Caplinger’s and cepting Defendant part: that he is assertion Defendant Lankford’s immunity a matter of qualified as judgment entitled of our as I dissent from so much principal must agree law. school for motion the denial Lankford’s affirms jury jury. A take his to a on these facts case judgment qualified summary on the basis ultimately persuaded that Lank- may not be immunity.1 requisite of indiffer- with the level
ford acted Lankford, pure this is a far as concerns So find its absence prepared I am not ence. inaction was de- case. non-feasance His a matter of law. indecisive, insensitive, in- was plorable. He attentive, stupid, incompetent, and weak-
II.
clearly
not then
estab-
But it was
kneed.
and,
indeed, is not even now—that
rejection of Lankford’s as-
Implicit in the
lished —
part violated the United
inaction on his
mere
immunity
the conclu-
qualified
is
sertion
Lankford,
public high
Constitution.
States
when
legal
was certain
sion that
position unquestion-
principal whose
nothing
I find
our cases
breached.
discretion,
was
ably
involved
exercise
certainty principal. comfort the
immunity, as
qualified
accordingly entitled
illegality
his failure is a direct reflection
summary judg-
in his motion
he asserted
was
certainty
the abuse
the coach
plain-
then shifted to
The burden
ment.
law.
illegal under both
and federal
itself
establishing
this defense
“to rebut
tiff
was a cause of the
If it is true that Lankford
wrongful conduct
allegedly
the official’s
knew and
power
he
coach’s abuse
because
clearly
[here,
established
violated
inaction]
occurrence,
is no
there
was indifferent to the
299, 306
Carpenter, 980 F.2d
Salas
law.”
uncertainty.
every prac-
“legal”
room for
Cir.1992).
require that
do “not
We
principal
of the word this school
tical sense
violate
he did not
demonstrate that
official
wrong. The assertion
a cause of the
was
prece-
rights; our
clearly
federal
established
anything was uncertain
“duty” to do
that his
plaintiffs.” Id.
upon
places that burden
dent
unconvincing.
Moreover,
official’s
that an
it is
settled
pointed out in Anderson
Scalia
Justice
clearly
matter how
state law—no
framing
legal
violation
Creighton,3 the hazards of
Capling-
holding
appellant
in the
1. I concur
er,
qualified
superintendent,
entitled
immunity.
*22
plain
position—
established and
in
to one
his
daughter,
Stroud’s
also a student at
deprive him
qualified
does not
section
school. Doe
daughter
befriended Stroud’s
in
immunity if under the circumstances it was
order to have “a
relationship
cover” for her
clearly
not
established that his conduct vio with Stroud and
visiting
“an excuse” for
right
lated the
sued on. Davis v.
federal
the Stroud
Apparently
residence.3
com-
Scherer,
183, 193-95, 104
mencing
1987, Doe,
February
in
with her
3019-20,
(1984). Further,
tion of a
protected right, as re
clearly
public
established that
quired
U.S.C.
1983.” Doe v.
children
State of
La.,
(5th
1412, 1421
Cir.1993)
(concur
liberty
“have a
bodily
F.3d
interest in their
integ
ring opinion).
rity
protected
is
by the Due Process
Clause of the Fourteenth Amendment”—
used,
abused,
Coach Stroud
posi-
his
precisely,
more
“the
process
substantive due
tion as a teacher to
way
worm
into the
component of the Fourteenth Amendment”—
affections of his fifteen-year-old student Jane
against “physical
sexual abuse
a school
that,
Doe so
majority says,
as the
“she devel-
employee.” Expressed
gener
at this
oped
level of
a ‘crush’ on
majority
Stroud.” As the
ality, and
relates,
assuming
unduly
late fall
broad defi
1986 Stroud and Doe
“physical
abuse,”
nition of
engaged in “kissing
agree,
sexual
petting,”
and in Jan-
uary
provided
1987 their
relationship
employee’s offending
“escalated
action
heavy petting and undressing”
taken “under color
following an
of’
state law.
D.T.
Cf.
evening rock concert to which
M.T. v. Independent
Stroud took
School District No.
Doe
friends,
some
including'
Cir.),
6.
any
And
but his actions
Lankford was not on
were nonetheless
notice
held not
to
otherwise.
be under color of law.
See,
special
10.
e.g., City
7.
The
Springs
takes the
Green Cove
view that
Donald-
concurrence
of
son,
(5th Cir.1965),
Stroud acted under
Contrary
implication
to the
in majority
opinion,
principles
the same
were affirmed
Pennsylvania
Commonwealth
Porter,
(3d Cir.1981),
Stoneking
the Third Circuit in
...
Stephens,
Black v.
perintendent
district,
It is ... true communicated condonation Ap- some Courts of or authoriza peals have tion of willing been more assaultive behavior.” than ours to Id. 882 F.2d at supervisory panel infer 730.13 approval majority of unconstitu- concluded that tional conduct from there part inaction on the was sufficient jury evidence for a supervisor.... find that taking policies courts affirmative conduct and view, however, liability have found only Smith and Miller “amounted to a communica (1) where there are contemporaneous both Wright tion of condonation” to and that there knowledge offending of the incident or was an “affirmative link” plain between the knowledge prior pattern of a “injury similar tiffs policies practices and incidents, circumstances under Smith and employed Miller and affirmative supervisor’s which the inaction could be acts took in furtherance of them.” Id. disagree 13. The princi- dissent did not with these supervisor favor of ah the individual defendants. ples, application particu- but felt that their to the Id. at 731-32. summary judgment lar facts there warranted in
471 violations, added).14 does not the other ordinate’s constitutional (emphasis On at 731 liability afford a sufficient basis for hand, Shuey was entitled Superintendent Thus, Haydon, in Poe v. against section 1983. summary judgment because the case (6th Cir.1988), denied, cert. ‘inaction and insensi- F.2d to “mere him amounted not part” the court could U.S. tivity’ on his (1989), any acts the Court stated: from the record
“discern
affirmative
Stoneking
Shuey
can base
liability
on which
of su
“On
issue
toleration,
encour-
condonation or
claim of
pervisory personnel, Hays v. Jefferson
(6th
teachers.”
agement
Cir.),
of sexual harassment
County, 668
cert. de
F.2d
added).
(emphasis
nied,
at 731
Id.
(1982),
L.Ed.2d 73
established that a su
Community
Similarly,
in
v. Alton
J.O.
pervisory
supervise,
failure to
official’s
(7th
Cir.
Dist.
909 F.2d
Unit School
control,
offending
train
individual
1990),
a section 1983
the court considered
actionable,
supervisor
unless the
‘ei
public
complaint against supervisory
school
encouraged
specific
ther
incident
officials,
principal
superin-
including the
way directly
misconduct or
some other
tendent, alleging that one Lester Mann “sex-
participated
it.’
Id. at 874. See also
ually
school children
plaintiff
molested”
Bellamy Bradley,
school.
employed as a teacher”
“while
Cir.),
complaint proceeded on the
Id. at 268. The
156,
What is certain is that the
unnecessary
ion and result are
either to vin-
part
The Fourteenth Amendment
is a
public
dicate Doe’s
generally
or to instill
designed
a Constitution
to allo-
Supreme
Connor,
specifically recog-
significantly
2.The
Court has not
by
undercut
v.
Graham
process
386,
right
liberty
1865,
nized the substantive due
U.S.
(1989).
109 S.Ct.
of
Court’s
to the trou-
the
43 S.Ct.
It is an established
of our
as
constitu-
jurisprudence
precise
tional
the Court has insisted on a
the term “liber-
definition
ty”
right
judicial
in the
Due Process Clause extends
as a matter of
self-
—
beyond
Flores,
physical
-,
from
discipline.
freedom
restraint.
Reno v.
U.S.
See,
Sisters,
e.g.,
Society
-,
1439, 1447,
Pierce v.
268
113 S.Ct.
123 L.Ed.2d
571,
(1993);
City
U.S.
45 S.Ct.
deprive property him of his in violation of the Due Process Clause because the tunnel was II
being
property
built closer to his
than was
authorized
the relevant resolutions. The
A
lower court
the bill for want of
dismissed
provides
remedy against
“Section
jurisdiction.
affirmed,
Court
law,
who,
‘any person’
under color
finding that no
action
occurred because
rights protected by the
deprives another of
...
“the construction of the
tunnel section
City
Collins v.
Harker
Constitution.”4
authorized,
was not
not
but was forbid-
— U.S. -, -,
Heights,
S.Ct.
legislation,
den
and hence
(emphasis
add
action
the State of New York within the
ed). Thus,
brought
cause
action
meaning
intent and
of the 14th Amendment.”
“question
fundamental
503;
Id. at
also
at
see
id.
*36
alleged depri
the
(“In
must be asked is whether
present
3
107-08, 65
at 1038.
S.Ct.
Supreme
applied
first
the les-
The
Court
government allegations
Raines
involved
inquiries
Amendment
sons of the Fourteenth
Georgia county
Registrars
Board of
that a
in
color of law” issue
three
to the “under
racially
against African-
had
discriminated
Classic, 313
criminal cases: United States v.
vote, in
sought
register
Americans who
(1941);
299,
1031,
61
grant of
Court
holding
phrase
it.11
that the
“under color of state
used
deprivations
law” includes
of constitutional
Supreme
first
addressed
The
Court
acting
effected
state officials
requirement
§
color of law”
1983’s “under
of state law.12 Id. at
violation
S.Ct.
Pape,
Monroe
police
at 482. The Court then held that the
(1961),
part
overruled in
L.Ed.2d 492
officers acted under color of state law
grounds,
City
other
Monell v. New York
abusing
authority granted
to them the
Services,
Department
Social
state to effect searches and seizures.13
city
Chicago, among
Monroes sued the
B
others,
1983, alleging
thirteen
Barney
Chicago police
Although
officers broke into their
it
home
has been stated that
“
warrant,
bed,
without a
roused them from
has
‘so
been
restricted
...
later deci-
search,
10. The Court in Raines alsо stated that where the
unreasonable
act under color of state law
action,
conduct
official's
constitutes state
despite the fact that the state has outlawed the
"it makes no difference that the discrimination in
officers' actions.
question ...
is also violative of state law.” 362
Snowden,
(citing
at
U.S. at
holding,
upon
so
12. In
the Monroe court relied
403).
import
U.S. at
64 S.Ct. at
of this
Classic's construction of "under color of law” in
unclear,
appeared
statement is
the Court
Classic,
turn,
the criminal context.
relied
responding
argument
to the defendants’
upon
Telephone's
Home
construction of "state
state action does not exist until a lower official's
action” in the Fourteenth Amendment context.
approved by higher
conduct has been
official—
Frankfurter, although
joined
Justice
he
in the
i.e.,
higher
if the
official reverses the lower offi-
Classic,
Monroe,
opinion
arguing
dissented in
decision,
cial’s
the lower official’s decision then
“police
intrusion in violation of state law is
law
contravenes state
and does not constitute
wrong
not a
[§ 1983].”
remediable under
type
state action. Whatever the merits of this
485
”
regarded
having
state to effect
that it “must be
reasonable searches and sei-
sions’
zures).
away by
of time’ ...
worn
the erosion
‘been
Raines,
authority,”14
contrary
362
and of
Accordingly, Barney appears to be at odds
(citations omitted),
at 525
U.S. at
80 S.Ct.
Telephone
progeny only
with Home
and its
if
claim,
Barney,
like Doe’s
can be distin-
grant
one fails to examine the relevant
of
ground
guished
authority
from the later eases on one
to the state actor under state law
example,
held,
in each
today’s
case. For
as Monroe
particularly relevant
decision:
pursuant
acts taken
exceeding
to—but
Barney
acting
a
official
involved state
—a
general grant
authority
givе
of
will
rise to a
complete
authority,15
of
while all the
absence
§
deprive
per-
1983 claim when such acts
a
acting pur-
cases involved state officials
later
constitutionally
protected right.
son
a
to,
general grant
exceeding,
suant
but
Thus,
Monroe,
police
officers
while
Raymond,
authority from the state. See
law,
unquestionably violating state
acted un-
(“the
at
is clear that under
Stroud,
district,
against
law. Thus acts of officers in the
lawsuit
the school
‘pretense’ of
pursuits
plainly Superintendent Caplinger,
Principal
personal
of their
are
and
ambit
Lankford[,]
charging]
...
of officers who undertake to
inter alia
excluded. Acts
defendants,
acting
perform
official duties are included
these
while
under color of
their
law, deprived
to the line of their authori
state
her of her
whether
hew
it.”);
rights guaranteed by
Baker v.
ty
overstep
or
see also
McCol
the Fourteenth Amend-
lan,
137, 146,
2689, 2696,
Equal
61 ment’s Due
Process
Protection
Clauses,
(noting
§
L.Ed.2d 433
even inten
violation of 42 U.S.C.
1983.”
Maj. op.
initially finding
tional torts do not become constitutional vio
at 449-50. After
merely
protects
lations
because the tortfeasors are
that “the Constitution
a schoolchild
officials).
here,
Barney,
physical
sexually
the board did not
from
sexual abuse—
power
fondling
15-year
to
the
girl
have the
allow
construction of
old school
and statu-
teacher,”
place
tory rape by
public
tunnel in a
the railroad
different
id.
by
slip
majority
the
op.
interprets
that authorized
relevant resolutions
at
the
Doe’s
general authority
against
Caplinger
because the board had no
claim
defendants
depart
alleging
supervisors
from the resolutions.18 Conse Lankford as
“failures of
quently, by approving
prevent
process
a different construc
substantive due
violations
site,
tion
the state officials did not exceed the
occasioned
that demonstrate a
[Stroud]”
Monroe,
authority,
limits of their
as in
but
...
“deliberate indifference to
her constitu-
complete
rights.”
in the
Accordingly,
rather acted
absence of au
tional
Id. at 451.
result,
thority.
liable,
departure
supervisors
As a
the board’s
to be
Stroud must
approved plans
from the
acting
constituted a breach
have been
under color of state law
committing
alleges
of state law and could not constitute action when
the acts that Doe
Thus,
taken under color of state law.
process.20
violated her
to due
however,
majority,
gives
Court found
the Due Process Clause of
short shrift to this
authority. Accordingly,
city's
government
government
act without
“[A]
officials.
local
though they
acts
even
may
constituted
action
injury
§
not be sued under
1983 for an
also violated state
at
law.
U.S.
solely by
employees
agents.”
inflicted
its
Mo
nell,
at
Instead,
at
ly proscribed
paraphrase
such conduct.22 To
S.Ct.
by
official
a state
Baker,
1988);
scope
an
was outside the
of his
§
“arrestee”
443
law is actionable
Screws,
employment);
see also
because Stroud authority engage any type
tioned Doe; Stroud, activity re-
sexual with authority to or abuse.
gard, had no
misuse
Screws,
Cf. (“We dealing here with a case where are not authorized to act nevertheless
an officer action.”). the laws of the
takes Because con-
State of Texas neither authorized or
doned, proscribed very but rather acts alleges
which Doe violated her constitutional
rights, I would hold that Stroud did not act statutorily
under color of state law when sexually fondling
raping or Doe. Conse-
quently, Doe does not have a 1983 cause of against Caplinger
action Lankford and based
upon supervisors pre- their “failures [as] process
vent substantive due violations occa- subordinates,” and, therefore,
sioned respectfully dissent. INDUSTRIES, INC.,
AVONDALE
Plaintiff-Appellant, CARRIERS,
INTERNATIONAL MARINE America,
INC. and The United States of
Defendants-Appellees.
No. 92-3556. Appeals, Court of
United States
Fifth Circuit.
March 1994.
Rehearing April Denied ("the "sovereign power joint pos- and office to brutal adventure was made used state’s jail ... detention and calculated release the victims from so that sible release State"); killed"). prisoners by intercepted at could be Because the an officer of the id. ("it purpose deputy at sheriff exceeded the limits of the authori- i.e., Deputy ty granted authority conspiracy Sheriff Price would re- him state— custody” persons prisoners to arrest and release from state [the victims] lease so that the them); custody he, along coconspirators, conspirators act- other could kill id. at (noting ed trader color of law. state officials notes during the fall of the school Also in them explicit favoritism toward exhibited librarian, Mary Livingood, Jean received overly class, in an and often touched them chil- telephone calls from two friends whose familiar, way. inappropriate biology in dren were students Stroud’s class. Eddy Lankford became the Defendant complained mothers about Stroud’s fa- Both By Taylor High August in principal of students in the class- voritism toward certain 1985, complaints fall semester of about the in and his use of sexual innuendo room had reached his office Stroud’s behavior Livingood biology lectures. had also seen During previ- through channels. various conduct; engaging unprofessional in Stroud year, had “be- 1984-1985 school Stroud ous grabbed girls around the waist from he often one of his female freshman stu- friended” hallways excessively hugged "behind in the friendship transgressed far dents. Their girls putting while his arms around them. normal, appropriate of a teacher- boundaries Livingood reported inappropriate behav- relationship. frequently student Stroud Principal ior she had witnessed to Lankford flowers, candy, gifts in her placed and other telephone and also informed him of the two locker, exchang- and the often seen two were parents. Addi- calls she had received from ing notes. He allowed her to take initially tionally, one of the mothers who had friends to lunch in his truck. He wrote late for other Livingood excuses for her when she was also Lankford to com- called called class, He often walked her classes. plain about Stroud’s favoritism in the class- prompting openly to tease Stroud students Although claims that room. Lankford he relationship girl. with this about his Stroud spoke complaints, about these Stroud in in his engaged also overt favoritism biolo- meeting. does not recall such Stroud gy students were not re- classes. Female spring guidance In counselor behave; quired to do classwork or to girls group Pasemann noticed a Naomi classroom, around the left often wandered gathered around Stroud’s desk before school during period, the classroom the class day; girls sitting top one one of the on changed, grades gradebook. in Stroud’s (with desk, behind Conversely, excep- of the while Stroud was seated male students girls tion of certain athletes who were coached around the desk with rest Stroud) classwork, made to submit take were told Lankford about this him. Pasemann tests, generally regular like stu- and behave incident; the two also discussed Stroud’s dents. practice allowing unlicensed freshmen to spring, moth- drive his truck. Later that By approximately year the fall of one female students in Stroud’s ers of two biolo- “relationship” begun, rumors after their had (by complained gy class met with Lankford and about Stroud and the freshman student Inc., Rally's, appeal Shortstop, case is on from the denial Inc. 1. Because this — -, (5th Cir.1991), summary judgment, of a motion for we review (1992). Any required We are to review 117 L.Ed.2d the record de novo. disputes light of fact are therefore resolved in Jane the facts in the most favorable to the non- moving party here, Jane Doe. See International Doe’s favor. See id. day overt favoritism toward cer- bought beverages about Stroud’s alcoholic girls suggested Lankford tain the class. require for them. He did not Doe to do daughters jeal- “a tests, that their were little bit yet classwork or to take she received girls group. ous” of those in the favored high grades in surpris- Stroud’s Not class. ingly, Doe, all of this attention flattered May Livingood reported developed she “crush” Stroud. episode Lankford that she had witnessed an involving of “child molestation” Stroud and fall, By late touching Stroud was and kiss- Livingood two freshman students. female ing began Jane Doe. It with a kiss on her lights copy noticed that the room at leaving cheek as she was the school field- off; library approached were as she day. Eventually, house one began taking he room, laughing talking. heard loud she laboratory adjacent her into the room to his room, When she looked into the she saw classroom and to engage the fieldhouse to lifting Stroud the female onto a students kissing petting. physical Their relation- catching they jumped table and them as off ship heavy petting escalated to and undress- into table his arms. She insisted that ing January when Stroud took Doe stop immediately Stroud the behavior. She friends, including and some of her his own reported the incident to Lankford. daughter, There, to a rock concert. he