Kinman v. Omaha Public School Dist.

• Citation: 94 F.3d 463
• Decision Date: 26 August 1996
• Docket Number: No. 95-2809,95-2809
• Parties: 112 Ed. Law Rep. 583 Janet KINMAN, Appellant, v. OMAHA PUBLIC SCHOOL DISTRICT; Robert Whitehouse, individually and in his official capacity; John Mackiel, PH.D., individually and in his official capacity; Sheryl McDougall, individually and in her official capacity, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 463

94 F.3d 463

112 Ed. Law Rep. 583

Janet KINMAN, Appellant, v. OMAHA PUBLIC SCHOOL DISTRICT; Robert Whitehouse individually and in his official capacity; John Mackiel PH.D., individually and in his official capacity; Sheryl McDougall, individually and in her official capacity, Appellees.

No. 95-2809.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1996.

Decided Aug. 26, 1996.

James E. Harris, Omaha, argued (Timothy K. Kelso, on the brief), for appellant.

John R. Douglas, Omaha, argued (Terry J. Grennan, on the brief), for appellees.

Before WOLLMAN and HANSEN, Circuit Judges, and KYLE, ^* District Judge.

WOLLMAN, Circuit Judge.

Janet Kinman appeals the district court's grant of summary judgment in favor of the Omaha Public School District (the district), one of her high school teachers, and several school officials on her 42 U.S.C. § 1983 and 20 U.S.C. § 1681(a) (Title IX) sexual harassment claims. We affirm the grant of summary judgment on the section 1983 claim, but reverse and remand for a trial on the merits of the Title IX claim.

I. Facts and Background

This case arose out of a sexual relationship between Kinman and Sheryl McDougall, one of Kinman's teachers. Although defendant school officials concede that the relationship occurred, the parties dispute several factual issues, including which party initiated the relationship, the voluntary nature of Kinman's involvement in the relationship, and the timing and degree of knowledge obtained by school officials regarding the relationship. Because this is an appeal from summary judgment, we will set out the disputed facts in the light most favorable to Kinman, the party against whom judgment was entered.

From September 1986 through May 1990 Kinman was a student at Bryan High School in Omaha, Nebraska. Between the fall of 1987 and the spring of 1988, Sheryl McDougall was Kinman's sophomore English teacher. During this year, in response to her suspicion that McDougall was gay, Kinman wrote McDougall a letter stating that she liked her but that she (Kinman) was not gay. Following McDougall's receipt of this letter, Kinman observed McDougall staring at her, but she did not report this to any school official.

Kinman and McDougall remained friends during the following summer. At some point during that summer, Kinman attempted suicide. She told her mother that one of her reasons for doing so was that McDougall was attempting to convince her that she (Kinman) was gay. Kinman told her mother that she did not want to be gay. Around this time, also allegedly in reaction to pressure from McDougall, Kinman began drinking.

During Kinman's junior year, McDougall called her out of study hall and asked her if she had ever been abused as a child. Kinman responded by confiding in McDougall about her childhood abuse, and by describing the sexual nature of that abuse. In the course of this conversation, McDougall told Kinman that she (McDougall) was gay. McDougall then encouraged Kinman to attend an Alcoholics Anonymous (AA) meeting with her, and Kinman assented. Until her arrival at the meeting, Kinman was unaware that it was a gay AA meeting. At this meeting, McDougall asked Kinman if she thought a particular woman sitting across the room was attractive. McDougall then informed Kinman that she had slept with this woman.

During the summer after Kinman's junior year, McDougall asked Kinman out on a "friend date." The two ended up at McDougall's residence, where McDougall proceeded to first caress and then kiss Kinman. Kinman claims that she resisted these attentions. Nonetheless, the two ended up having sex and spending the night together. They then apparently entered a sexual relationship, which proceeded until McDougall temporarily discontinued it in November 1989, after Kinman told her mother about the relationship and her mother complained to the school's principal, defendant Robert Whitehouse.

School officials first began to investigate the possibility of a relationship between McDougall and Kinman in the fall of 1989. Contrary to school policy, McDougall was not suspended during this investigation. In fact, she was not even questioned initially. School officials first met with Kinman's mother, and then with Kinman herself. They then arranged for a tracing device to be installed on Kinman's phone in an attempt to determine the truth of Kinman's allegations that McDougall was calling. According to Kinman's mother, however, the school officials placed the tracer on the wrong phone line--that is, on Kinman's mother's line, rather than on Kinman's. School officials also arranged for Kinman to take a polygraph exam. When the results of the first test indicated deception, Kinman took another test. Apparently, this test also indicated some level of deception. In December 1989, defendant John Mackiel, the assistant superintendent for personnel, confronted McDougall with Kinman's allegations. McDougall denied the allegations, claiming that Kinman was stalking and harassing her. McDougall was not given a polygraph exam.

Approximately two years after Kinman's graduation, Mackiel received a phone call from Whitehouse, advising him that Kinman's mother continued to claim that the relationship between Kinman and McDougall was ongoing. Kinman's mother informed Mackiel that she now had proof in the form of McDougall's journal. Mackiel requested a copy of the journal and had a private investigator perform a handwriting analysis on it. The analysis indicated that the handwriting was indeed McDougall's. After also receiving incriminating pictures of McDougall and Kinman and a series of cards written by McDougall to Kinman, the district began proceedings to suspend McDougall for violation of school policy. ¹ McDougall was terminated, and her teaching certificate was revoked in 1992.

School officials arguably were on notice of potential problems between McDougall and Kinman as early as March 1988, when, during Kinman's sophomore year of high school, McDougall received an unsatisfactory evaluation for demonstrating a lack of professionalism in relation to an incident involving plans to attend a rock concert with Kinman. Also during Kinman's sophomore year, her mother contacted the school's assistant vice-principal and requested that Kinman be removed from McDougall's English class. Despite this request, Kinman remained in McDougall's class until the end of the school year.

Whitehouse received several reports of the relationship in the fall of 1989. First, Tom Grosse, a friend of Kinman's, informed him that McDougall and Kinman were involved in a sexual relationship. Then, Susan Paar, the school's guidance counselor, reported a conversation with Heather Hoffman, another friend of Kinman's, during which Hoffman informed Paar that Kinman and McDougall were dating. Carol Pasco, Kinman's special education teacher, also expressed this concern to Whitehouse. Finally, Barb Sears, a paraprofessional in Pasco's class, stated that she was concerned that McDougall was constantly peering into her classroom to check on Kinman, who was not at the time McDougall's student.

Grosse also contacted Mackiel on October 16, 1989, informing him both of the relationship between Kinman and McDougall and of Kinman's attempted suicide. After this meeting Mackiel met with Kinman's mother and with Kinman, and the investigation began.

After Kinman graduated in May 1990, she renewed her relationship with McDougall, and it continued until at least August of 1992. Following her graduation, Kinman brought this action against the district and against Whitehouse, Mackiel, and McDougall, individually and in their official capacities, pursuant to section 1983 and Title IX. ²

When McDougall failed to respond to this action, the district court entered a default judgment against her. That default judgment was subsequently vacated in order to allow the court to dispose of the case in its entirety.

We review a district court's grant of summary judgment de novo, applying the same standard as the district court and affirming only when the evidence viewed in the light most favorable to the plaintiff shows the existence of no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law. United States v. Green Acres Enters., Inc., 86 F.3d 130, 133 (8th Cir.1996).

II. Section 1983

Kinman's section 1983 action names both the district and the individual school officials as defendants. The individual defendants are liable under section 1983 only if Kinman can prove the following: 1) that they received notice of a pattern of unconstitutional acts committed by subordinates; 2) that they demonstrated deliberate indifference to or tacit authorization of the offensive acts; 3) that they failed to take sufficient remedial action; and 4) that such failure proximately caused injury to the plaintiff. Jane Doe A. v. Special Sch. Dist., 901 F.2d 642, 645 (8th Cir.1990).

To establish a claim against the school district, Kinman must show that an official policy or custom caused her to suffer a constitutional harm. Thelma D. v. Bd. of Educ., 934 F.2d 929, 932 (8th Cir.1991). Such a showing requires proof of the existence of a continuing, widespread, persistent pattern of unconstitutional conduct, as well as deliberate indifference or tacit authorization and causation. Jane Doe A., 901 F.2d at 646.

The evidence viewed in the light most favorable to Kinman does not support a finding of either deliberate indifference or tacit authorization on the part of school officials, or of a pattern of persistent and widespread unconstitutional practice throughout the school district of ignoring complaints of student/teacher sexual relationships. See Jane Doe A., 901 F.2d at 644, 646 (no section 1983 liability even though school officials received complaints over the course of two years that bus driver had used foul language, physically restrained and assaulted children, kissed a...