Becerra v. Asher

• Decision Date: 14 February 1997
• Docket Number: No. 96-20401,96-20401
• Citation: 105 F.3d 1042
• Parties: 115 Ed. Law Rep. 638 Rosa BECERRA, Individually and as next friend of Juan Doe, A Minor, Plaintiff-Appellant, v. Jerry ASHER, et al., Defendants, Houston Independent School District, Joan Raymond, Sylvia Macy and Barbara Turner, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1042

105 F.3d 1042

115 Ed. Law Rep. 638

Rosa BECERRA, Individually and as next friend of Juan Doe, A Minor, Plaintiff-Appellant, v. Jerry ASHER, et al., Defendants, Houston Independent School District, Joan Raymond, Sylvia

Macy and Barbara Turner, Defendants-Appellees.

No. 96-20401.

United States Court of Appeals, Fifth Circuit.

Feb. 14, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied March

27, 1997.

Order Denying Rehearing and Rehearing En Banc April 7, 1997.

Benjamin Lewis Hall, III, John M. O'Quinn, Elizabeth Bazan Hawkins, O'Quinn, Kerensky, McAninch & Laminack, Houston, TX, for plaintiff-appellant.

Lisa A. Brown, Kelly C. Frels, Jeffrey John Horner, Bracewell & Patterson, Houston, TX, for defendants-appellees.

Carolyn Hanahan, School Boards Legal Division of Texas, Austin, TX, for Texas Association of School Boards, amicus curiae.

Sherry A. Scott, Houston, TX, for Coalition Against Sexual Abuse in HISD.

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

Before POLITZ, Chief Judge, and REAVLEY and DENNIS, Circuit Judges.

REAVLEY, Circuit Judge:

Defendant Jerry Asher, a music teacher with the Houston Independent School District (HISD), sexually molested Juan Doe, an eleven-year old boy. Juan's mother, Rosa Becerra, individually and as next friend of Juan, brought this action against Asher, three HISD administrators, and HISD, alleging a federal claim under 42 U.S.C. § 1983 and state law claims. The court granted summary judgment in favor of all the defendants except Asher on the § 1983 claim, and entered a final judgment in favor of these defendants under FED.R.CIV.P. 54(b). ¹ Because we agree with the district court that the sexual assault by Asher was not state action, we affirm.

BACKGROUND

Asher was a teacher with HISD from 1975 to 1992. In 1987 he was charged with indecency with a child arising from an incident at Frost Elementary. Then HISD superintendent, defendant Joan Raymond, suspended Asher because of the charge, but he resumed teaching after his acquittal. After the acquittal Asher was transferred to Patterson Elementary. While at Patterson, the principal, defendant Barbara Turner, heard that Asher planned to give private music lessons in his classroom, that he had questioned students about personal matters, and that he had asked a student to roll up his pants so that Asher could examine his leg for signs of physical abuse. Turner told Asher not to engage is such activities. Asher also disrupted a faculty meeting and tried to initiate a group prayer to quell rumors about the prior indecency charge. Turner reprimanded Asher for this behavior and recommended that he receive a medical evaluation, but this recommendation went unheeded. Turner wanted Asher transferred to another school. Becerra complains that Turner gave Asher an excellent teacher evaluation to facilitate his transfer.

In July 1990, Defendant Sylvia Macy, an area superintendent, authorized Asher's transfer to Harris Elementary. Juan Doe attended Harris Elementary from 1990 to 1992. He was a student in Asher's music class. On March 9, 1992, Juan withdrew from Harris Elementary, but Juan and his brother continued a friendship with Asher. With their mother's permission, the boys spent time with Asher. Their activities included home music lessons, trips to the zoo and theme parks, and church activities. On August 29 and September 12, 1992, Asher was alone with Juan and his brother at their home, and sexually molested Juan. Juan's grandmother witnessed the latter incident. Becerra reported Asher to the authorities. He resigned from HISD in December of 1992, pleaded guilty to child molestation, and was sentenced to 50 years in prison.

Becerra sued under § 1983, alleging a violation of Juan's substantive due process right to bodily integrity, and a violation of his right to equal protection because of an HISD policy of transferring troubled teachers to largely minority schools. The equal protection claim was abandoned on appeal. Becerra complained, inter alia, that for years before the assaults on Juan, Asher was a known threat to his students and had committed

numerous sexual acts with minor students. She complained that the sexual abuse of Juan occurred as a result of the conduct and deliberate indifference of HISD and its officials, that HISD failed to train and supervise its employees to prevent sexual misconduct, and that defendants adopted a policy of transferring Asher and other pedophiles from one school to another, rather than terminating them. The district court, after allowing limited discovery on the issue of qualified immunity, granted summary judgment in favor of the appellees.

DISCUSSION

Doe v. Taylor Indep. Sch. Dist. ² is our circuit's seminal case on the subject of § 1983 liability for sexual misconduct in the school setting. This decision made three important holdings. We held that "schoolchildren do have a liberty interest in their bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment and that physical sexual abuse by a school employee violates that right." ³ We further held, for purposes of analyzing the qualified immunity defense, that this right was clearly established. ⁴ In addressing vicarious liability, we recognized that local governments and supervisory personnel are not subject to § 1983 liability under a vicarious liability or respondeat superior theory. ⁵ However, we held that these defendants could be held liable, under a "deliberate indifference" standard, if they demonstrated deliberate indifference toward the constitutional rights of the student. ⁶

A. State Action

Although the law is clear that physical sexual abuse of a student by a school teacher can give rise to § 1983 liability, a separate and essential element of such a claim is that the abuse occur under color of state law. "To state a claim under § 1983, the plaintiff ... must show that the alleged deprivation was committed by a person acting under color of state law." ⁷ When, as here, the alleged constitutional violation is a violation of the Due Process Clause of the Fourteenth Amendment, this requirement flows both from the "state action" component of the Fourteenth Amendment and the "under color of" state law requirement of § 1983. ⁸ The "state action" and "under color of state law" requirements are identical in this context. ⁹

As egregious and cruel as Asher's acts were, liability under § 1983 is necessarily limited to constitutional violations occurring under color of state law. "Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." ¹⁰ The Supreme Court has rejected an approach that would make "the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States." ¹¹

Doe v. Taylor addressed this issue. That case involved the sexual abuse of a student by a teacher, Stroud, who was a coach and biology teacher. It was no secret in the school community that Stroud behaved inappropriately towards female students. ¹² The principal was aware of this behavior. ¹³ The teacher befriended the plaintiff, a high school freshman, and the two began exchanging notes at school. He gave her gifts, took her to lunch during the school day and walked her to class. In his biology class plaintiff was not required to take tests or do class work. ¹⁴ The two engaged in sex "both on and off the school grounds." ¹⁵

The majority opinion in Doe v. Taylor discusses the state action requirement in footnote 4:

Lankford and Caplinger argue first that Stroud's actions were not taken under color of state law. They rely on D.T. by M.T. v. Independent School District No. 16, 894 F.2d 1176 (10th Cir.) [, cert. denied, 498 U.S. 879, 111 S.Ct. 213, 112 L.Ed.2d 172 (1990) ], in which a teacher molested three students during the summer while engaged in a fundraising campaign for a basketball camp. The school made it clear to the teacher that the fundraising activity was not a school program but rather was organized as a community volunteer effort. In this case, however, Stroud took full advantage of his position as Doe's teacher and coach to seduce her. He required Doe to do little or no work in the classroom and still gave her A's. He also spoke to one of Doe's other teachers about raising her grade in that class. Stroud was also Doe's basketball coach and he exploited that position as well. The first physical contact Stroud had with Doe was after a basketball game in November 1986 when he grabbed her and kissed her. Stroud's physical contact with Doe escalated thereafter. During the next several months Stroud took Doe from his classroom to an adjoining lab room where he kissed and petted her. During that same period of time Stroud also met Doe in the school's fieldhouse where similar activity took place. As the court in D.T. recognized, if a "real nexus" exists between the activity out of which the violation occurs and the teacher's duties and obligations as a teacher, then the teacher's conduct is taken under color of state law. Id. at 1188. As demonstrated by the above facts, the nexus that was missing in D.T. was clearly present in this case. We therefore reject the school officials' argument that Stroud's acts were not under color of state law. ¹⁶

Judge Higginbotham, in his concurring opinion, agreed that state action existed for the following reasons:

The next inquiry is whether the deprivation of liberty occurred under color of state law. I agree that it did. Stroud's official interactions with Doe and his sexual involvement with her together constituted an indivisible, ongoing relationship. The special attention Stroud gave Doe as her teacher afforded him the opportunity to exert his influence. He levered his authority to...