106 F.3d 648 (5th Cir. 1997), 95-50811, Rosa H. v. San Elizario Independent School Dist.

• Citation: 106 F.3d 648
• Party Name: ROSA H., Individually and as next friend of Deborah H., Plaintiff-Appellee, v. SAN ELIZARIO INDEPENDENT SCHOOL DISTRICT, et al., Defendants, San Elizario Independent School District, Defendant-Appellant.
• Case Date: February 17, 1997
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fifth Circuit

Page 648

106 F.3d 648 (5th Cir. 1997)

ROSA H., Individually and as next friend of Deborah H.,

Plaintiff-Appellee,

v.

SAN ELIZARIO INDEPENDENT SCHOOL DISTRICT, et al., Defendants,

San Elizario Independent School District, Defendant-Appellant.

No. 95-50811.

United States Court of Appeals, Fifth Circuit

February 17, 1997

Page 649

[Copyrighted Material Omitted]

Page 650

Mark Berry and Thomas E. Stanton, El Paso, TX, for plaintiff-appellee.

Michelle Elaine Robberson, Darrell Gerard-Marc Noga, Cooper, Aldous & Scully, Dallas, TX, Edward K. Peticolas, El Paso, TX, Richard Brent Cooper, Mary-Olga Ferguson, Dallas, TX, for defendant-appellant.

Appeal from the United States District Court for the Western District of Texas.

Before KING and HIGGINBOTHAM, Circuit Judges, and LAKE, ^[*] District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case requires us to decide whether Title IX, 20 U.S.C. §§ 1681-1688, creates liability on the part of a public school district that negligently fails to prevent an instructor from sexually abusing a student. We hold that it does not. In order to hold a school district liable under Title IX for teacher-student sexual harassment based on a hostile educational environment, a plaintiff must show that an employee who has been invested by the school board with supervisory power over the offending employee actually knew of the abuse, had the power to end the abuse, and failed to do so. We reverse the plaintiff's jury verdict and remand for further proceedings.

I.

A.

In the fall of 1992, Deborah H. entered San Elizario High School, where she had a sustained sexual relationship with John Contreras, the school's karate instructor. The relationship ultimately caused Deborah to become suicidal, to be committed to a psychological hospital, and to leave San Elizario before the end of the academic year. Although Contreras denies all allegations of sexual contact with Deborah, the jury understandably concluded in a special interrogatory that Contreras sexually abused Deborah. A reasonable juror could have concluded the following.

The school district employed Contreras from the fall of 1992 until the spring of 1994, when it fired him for reasons unrelated to the facts of this case. His only responsibility was to offer weekly martial arts classes on school grounds at the close of the school day. These classes were meant to provide students with productive after-school activities, and school personnel supervised and attended each karate class. There was no evidence that the twenty-nine-year-old Contreras had a history of sexual offenses or was a danger to children.

Deborah enrolled in the karate class largely because her two sisters had enrolled. After several weeks, Contreras took a special interest in Deborah, who had recently turned fifteen. He often drove her home after class. He complimented her appearance, including not only her hair, but also her breasts. Other students noticed that Contreras was attracted to Deborah, and Brenda Soto, a social worker employed by the school district, may have seen Contreras kiss Deborah on school grounds. But most of the physical contact occurred in Contreras's car or at his home. Within weeks of Deborah's enrollment in the karate class, Contreras initiated sexual intercourse. Contreras had sex with Deborah at his house on a regular basis in December, January, and February, often during the school day. When Deborah insisted that she would get in trouble for missing school, Contreras assured her that the school did not require her to attend so long as she was with him.

Deborah's parents knew nothing about her relationship with Contreras. Deborah's father approved of the karate lessons and even paid Contreras to give all four of his children private karate lessons at their home. On occasion, Contreras brought martial arts films to show at Deborah's home and stayed

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to eat dinner with her family. As far as Deborah's mother, Rosa H., was concerned, Contreras was a pleasant young teacher who could provide a positive role model for Deborah and her other children.

The record is less clear on the question of whether school officials knew about Contreras's sexual relations with Deborah. Deborah testified that in February she visited Julian Encina, the high school counselor, and confided that she had been having sex with Contreras. Encina admitted before the jury that he had counseled Deborah roughly once a week, but he denied that Deborah told him anything confidentially about her relations with Contreras. Soto testified that Encina informed her in February that Deborah and Contreras might be having some sort of relationship. She passed this information on to Frank Duran, the director of San Elizario's special programs.

On the morning of February 22, 1993, Rosa discovered Deborah at Contreras's house during school hours. She became suspicious of Contreras's relationship with her daughter. Later that morning, she and Deborah met with Encina and Robert Longoria, the high school principal. Deborah became upset during the meeting, and when Contreras's name came up she blurted out: "Well, what do you want me to tell you, mom? Do you want me to tell you that I'm fucking him? Well, I'm not going to tell you that because it's not true." Longoria, who was unaware of the karate program and had not met Contreras, testified that he regarded the outburst as part of a typical family quarrel rather than as an indication that Contreras was sexually abusing Deborah.

Toward the end of March, Rosa listened in on a telephone conversation between Contreras and Deborah that included explicit sexual language and confirmed Rosa's suspicion that Contreras was having sex with her daughter. Rosa refused to allow Deborah to see Contreras without a chaperon. Deborah became increasingly distraught, and on March 29 she locked herself in her bedroom with her father's loaded guns and threatened to kill herself. After an April 5 commitment hearing, Deborah was placed in the custody of mental health professionals for approximately two months. In order to avoid Contreras, she enrolled in a private boarding school in the fall of 1993.

School officials attended the April 5 hearing and heard Deborah describe her relationship with Contreras. The school superintendent, Beatriz Curry, called a meeting the next day to discuss how the school should respond to Deborah's situation. Principal Longoria, Frank Duran, Julian Encina, Brenda Soto, and another school social worker, Linda Apodaca, attended the meeting. After an initial decision to suspend the karate program, Superintendent Curry decided on the advice of counsel to continue to have Contreras offer the classes under close monitoring. Curry asked her staff to write down whatever they knew about Deborah's relationship with Contreras and to collect information to determine whether the school should make a report to law enforcement authorities. But the school did not mount a full-scale investigation into whether Contreras posed a risk of sexual abuse or notify Fran Hatch, the school's Title IX coordinator, that Contreras had sexually abused Deborah. Nor did school officials report Contreras to law enforcement authorities. He worked at San Elizario High School for another year under heightened supervision and without committing further sexual harassment. In the spring of 1994, the school district fired him because he failed repeatedly to supply the district's personnel office with an adequate photo identification.

B.

On behalf of her daughter, Rosa sued both the San Elizario Independent School District and Contreras. The complaint asserted that both defendants violated both Title IX and 42 U.S.C. § 1983. The defendants have already prevailed on most of these claims. Contreras himself is no longer a party: the trial court dismissed the Title IX count as to Contreras, and Rosa dismissed the § 1983 count against Contreras at the close of evidence. The court also entered summary judgment in favor of the school district under § 1983. Rosa has not appealed these dispositions, and we are left only with Title IX as a possible basis for the school district's liability.

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At the close of the plaintiff's case, the school district moved for judgment as a matter of law on the grounds that an educational institution cannot be liable under Title IX unless it discriminates intentionally. The court denied this motion and explained in a written memorandum that under principles of agency law, the school district could be vicariously liable for the intentional torts of its employees if the district acted negligently. According to the district court, the requirement that an educational institution discriminate intentionally before being subject to Title IX liability does not foreclose the application of the doctrine of respondeat superior.

The court instructed the jury that

Title IX places on San Elizario Independent School District a duty not to act negligently toward its students. If you find from a preponderance of the evidence that San Elizario Independent School District acted negligently in failing to take prompt, effective, remedial action with respect to what it knew or should have known, then it violated Title IX.

After four days of testimony, the jury awarded the plaintiff $100,000 in past compensatory damages and $200,000 in future compensatory damages. It found specifically that Contreras sexually harassed or abused Deborah, that the school district had notice of Contreras's conduct, ¹ that the district failed to take prompt effective remedial action, and that the district's failure to act was negligent.

II.

Under Title IX, "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. §...