Gonzalez v. Ysleta Independent School District , 996 F.2d 745 ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 90-8725
GLORIA GONZALEZ, Individually and as
Next Friends of JESSICA GONZALEZ, and
VICTOR GONZALEZ, Individually and as
Next Friends of JESSICA GONZALEZ,
Plaintiffs-Appellees,
versus
YSLETA INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
( July 20, 1993 )
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HUNTER*, District
Judge.
HIGGINBOTHAM, Circuit Judge:
This appeal raises difficult questions of law in a difficult,
tragic setting. Jessica Gonzalez was sexually molested by Andres
Mares, her first grade teacher, while attending one of the
elementary schools within the Ysleta Independent School District.
After Jessica's parents, Gloria and Victor Gonzalez, discovered
that the YISD Board of Trustees had elected to keep Mares in the
classroom in the face of similar allegations of sexual abuse two
years earlier, they brought this § 1983 action against the school
district in the U.S. District Court for the Western District of
*
Senior District Judge of the Western District of Louisiana,
sitting by designation.
Texas. The case went to the jury on the claim that the district
policy regarding sexual abuse was a legal cause of the denial of
Jessica's constitutional right to bodily security. The verdict was
$500,000.
On appeal, YISD contends that the district court should have
instructed the jury that the school district could be held liable
under § 1983 only if the Board's failure to relieve Mares of his
teaching duties manifested a deliberate indifference to the
constitutional rights of students. The school district also
submits that the trial evidence is insufficient to support a
finding of liability under this heightened standard of fault. We
agree and, finding that the second claim requires reversal, we
reverse and render judgment in favor of the school district.
I.
Ysleta Independent School District is the seventh-largest in
Texas, educating over 50,000 students. Prior to 1984, YISD had no
formal policy regarding sexual abuse of students by teachers; the
issue was instead left to the discretion of the individual school
principals. In 1984, YISD adopted a written policy incorporating
provisions of the Texas Family Law Code. In accordance with Texas
law, the policy provided that "any person(s) who suspects that a
child's physical or mental health or welfare has been, or may be,
adversely affected by abuse or neglect . . . must report his or her
suspicions to the Texas Department of Human Resources and/or to a
law enforcement agency." The primary responsibility for contacting
the Department for Human Resources remained with the school
2
principal, who was charged with making an oral report "without
delay" and a written report within five days.1 The results of the
operation of this policy were fairly uniform: With one exception,
every complaint of abuse from 1983 to 1987 led to the permanent
removal of the teacher in question from any contact with school
children.2
The exception to this otherwise unbroken pattern of teacher
removal was Andres Mares, the man who molested Jessica Gonzalez.
Mares' penchant for inappropriate conduct with his young female
students first surfaced in 1981. He was at that time a Spanish
teacher at the Ascarate Elementary School. In November 1981,
Nellie Morales, Principal of Ascarate, received a complaint from
the parent of one of his students. The parent informed Principal
Morales that Mares frequently allowed girls to sit on his lap
during class, a practice the parent and Morales considered highly
improper. After consulting Rudy Resendez, Assistant Superintendent
for Elementary Schools, Morales responded to this report with an
1
Despite the apparently mandatory nature of the language,
YISD officials testified at trial that the policy continued to
afford principals discretion to conduct a preliminary investigation
of specific complaints before deciding whether to report the
incident.
2
The school district introduced evidence at trial showing
that five YISD teachers had been accused of sexual misconduct
during this time period. In four cases, a hearing before the Board
of Trustees was proposed. Two of the teachers elected to resign
rather than go before the Board; the two others were dismissed
after the Board determined that the allegations of sexual abuse
were true. In the fifth case, a hearing was not scheduled because
school officials believed they "had no case" against the teacher in
question. Nevertheless, the teacher was relieved of his classroom
duties and transferred to a records warehouse within the district.
3
informal memorandum and an oral reprimand of Mares. She
nonetheless received a second, more serious complaint from the same
parent one month later, alleging that Mares had this time placed
his hand around the waist of her daughter. Even though the child
and Mares both verified the incident, Morales' disciplinary
response was limited to issuing a second oral reprimand and
directing Mares to enter a general "improvement" program. This
sanction in any event apparently had a salutory effect, as
allegations regarding Mares' conduct came to a temporary halt.
In January 1985, however, Principal Morales received an urgent
phone call from Graciela Peña, the mother of one of the female
students in Mares' fifth grade Spanish class. Mrs. Peña insisted
that Morales remove her daughter, Leticia, from Mares' class at
once. When asked the reason for this request, Mrs. Peña, after
some hesitation, informed Morales that Leticia had told her that
Mares had placed his hand on her waist and stuck his tongue in her
ear. Morales again sought direction from Resendez regarding the
course of investigation. Resendez this time enlisted the aid of
Kenneth DeMore who, as the school district's Director of Employee
Relations, usually handled teacher grievances and complaints.
Morales first met with Mares to discuss the incident. Mares
admitted that he had been alone in the classroom with Leticia and
had placed his hand around her waist, but denied any further
improper conduct. Morales and DeMore interviewed Leticia a few
days later on February 4, 1985. Leticia told them that Mares had
4
approached her from behind as she was drawing at the blackboard,
wrapped his arm around her waist, and stuck his tongue in her ear.
This interview marked the end of the investigatory process.
Testimony at trial disclosed the school officials' knowledge of the
1981 allegations against Mares, that Morales, the only person who
questioned both Leticia and Mares, believed that Leticia was
telling the truth, and that the administrators considered the
alleged conduct to be actionable sexual abuse. Nonetheless,
Morales, DeMore, and Resendez neither called the Department of
Human Resources nor took any immediate remedial steps on their own.
Rather, the school officials decided to "drop the matter" and
merely include the incident in the customary evaluation of Mares'
overall classroom performance.3 All three officials stated that
this abrupt conclusion of the investigation came at the request of
Mrs. Peña, who, according to their testimony, made it clear that
she wished to proceed no further.
Leticia Peña's allegations of sexual abuse had no discernible
effect on Mares' standing at Ascarate Elementary School. On
February 15, just two weeks after his alleged assault, Morales gave
Mares what she described as a "good evaluation," rating his
classroom performance just one point short of "exceeds
expectations." After Mares filed a grievance challenging this
evaluation as "unfair," Morales adjusted his score even higher in
3
Morales testified that Mares was also to receive an
official reprimand to be prepared by DeMore, the official in charge
of these actions. DeMore, however, stated that both he and Morales
intended to "drop the matter" and that, in any event, the primary
responsibility for issuing reprimands lay with Morales.
5
April. Mares capped an eventful spring later that month by being
elected President of the Ascarate Elementary School PTA.
Mares' election came as a shock to Graciela Peña and her
husband Fernando. Contrary to the account given by Morales, the
Peñas testified that they had neither failed to cooperate nor asked
her to terminate the school district's investigation of Mares'
assault on their daughter. While they may have expressed some
misgivings about the repeated questioning of Leticia, the Peñas
were under the impression that the investigation would continue
until the appropriate resolution was reached. Nor was the
resolution of their complaint subject to doubt. Resendez and
DeMore testified that Morales was the only school official to talk
to Mrs. Peña regarding the incident. Mrs. Peña stated at trial,
however, that Resendez had personally informed her that Mares would
be brought to YISD's central office for a recorded hearing on the
matter and would receive an official reprimand directing him to
seek counseling and avoid any further one-on-one contact with
students. Mares was also to be transferred to another school where
he would be closely monitored to ensure that he complied with these
terms. Mares' election as PTA President signalled to the Peñas
that these remedial steps had not been taken, that, far from being
punished for his transgression, Mares had in fact been "rewarded."
The Peñas were not without means to correct this perceived
breach of trust, for Mares' election to the Ascarate PTA presidency
coincided with Fernando Peña's own election to the YISD Board of
Trustees. Upon taking office in May, Mr. Peña went to Principal
6
Morales' office to determine whether the official reprimand
promised his wife in February had been placed in Mares' file.
After Peña was unable to locate the reprimand in the files at
Ascarate, Morales told him that it had been forwarded to the
central office. Peña then discovered that those files contained
neither the reprimand nor any evidence of the investigation into
Mares' sexual abuse of his daughter. It was at this point that Mr.
Peña learned that, contrary to the assurances given to Mrs. Peña by
Resendez, school officials had, as DeMore admitted at trial, simply
"dropp[ed] the matter."
Mr. Peña then decided to take up the Mares incident directly
with the Board. After documenting the sharp divergences between
the actions promised by school officials and those that were taken,
Peña called an emergency meeting of the Board of Trustees in late
May. With the entire Board as well as Resendez, YISD
Superintendent Jim Hensley, and Deputy Superintendent Jerry Barber
present, Peña submitted documents detailing Mares' assault on
Leticia and the administration's subsequent attempt to "cover up"
the incident. Resendez responded to Peña's strong charges by
offering his own account of the events surrounding the
investigation. Resendez informed the Board that the district had
determined that the allegations lacked substance and that the
investigation had been closed at Mrs. Peña's request. Mr. Peña in
turn asserted that there was no truth to Resendez's statements and,
in particular, vehemently denied that his wife had ever asked
school officials to halt their investigation. Hensley and Barber,
7
who had assumed their roles just a few weeks before in early May,
then intervened, stating that they had not been advised of this
incident involving Mares. It was determined that Barber would
investigate the incident personally and deliver a full report to
the Board.
School district policy provided that employees such as Mares
could be dismissed only after a hearing before the Board of
Trustees. Barber was charged with examining Mr. Peña's allegation
that Morales, DeMore, and Resendez had conspired to "cover up" the
sexual abuse of his daughter and with determining whether there was
enough evidence to commence termination proceedings against Mares.
Barber concluded that the school officials should be reprimanded
for failing to "follow through" in their own investigation of the
incident, but recommended against holding a hearing.
The investigation supporting these findings was cursory at
best. Despite Mr. Peña's charges that Morales, DeMore, and
Resendez had repeatedly "lied" about their handling of Leticia's
case, Barber's inquiry into the incident consisted solely of
discussions with these same school officials. At the Board
meeting, Peña had vigorously disputed Resendez's assertion that he
and his wife had refused to cooperate with school officials.
Barber nevertheless accepted his subordinates' statements that the
Peñas did not wish to involve themselves or their daughter in the
investigation and thus made no attempt to contact them. His belief
that a hearing was not warranted, however, apparently did not rest
on the credibility of Leticia's complaint or her parents' perceived
8
unwillingness to allow her to testify against Mares. Barber could
not specifically recall at trial whether he asked Morales whether
she believed the child's allegations and, more importantly, he
indicated that even Leticia's testimony alleging conduct that
"certainly" constituted sexual abuse would not suffice. According
to Barber, there was in his view no "evidence" or "proof" of abuse,
not because Leticia refused to come forward, but because "Mr. Mares
continued to deny it." In sum, without additional evidence, such
as confirmation of additional witnesses, "the testimony of a little
girl" was not enough to hold a hearing in the face of a teacher's
denials. Barber accordingly recommended that disciplinary action
against Mares be limited to a written reprimand directing him to
seek counseling and an order transferring him from Ascarate to Glen
Cove, another elementary school within YISD.
After Superintendent Hensley concurred in Barber's report and
recommendation, it was explained and submitted to the Board of
Trustees for its approval. While the record discloses that the
Board, after discussion of the matter, ultimately voted in favor of
transferring Mares, it is not clear whether its consideration of
this issue was confined to a single evening or extended over
several meetings during late May and early June.4 It is clear,
however, that Fernando Peña, whose testimony provided the only
4
For this reason, we are unable to ascertain whether the
Board's formal decision preceded the reprimand issued Mares, dated
May 31, and the grievance filed by Mares in response on June 6. We
do not hold this lacuna in the record to be of any significance,
however, since the grievance was ultimately resolved by the
administration in August 1985, some two months after the Board
chose to transfer Mares rather than remove him from the classroom.
9
direct evidence of the Board's deliberations, vigorously opposed
the administration's recommendation and demanded that more serious
measures be taken. Peña had castigated the administration during
the first meeting, but he now focused his fire on the Board itself:
"[I]n one of my temper tantrums, I said, 'I wouldn't wish this [the
abuse of a child] on anybody but this school board, because they
need to be in my shoes to see how it feels.'" Despite his
persistence and his sharp criticism of the Board, Peña testified
that he "didn't have the votes" and thus "could never get anybody
to do anything except transfer him." Peña continued to view the
transfer of Mares as plainly "inadequate," but also recognized that
it was the most he could hope to "extract" from his fellow Board
members.
Mares' first year at Glen Cove Elementary School passed
without incident. On March 9, 1987, however, Mares molested
Jessica Gonzalez, one of the students in his first grade Spanish
class. The record showed that the assault occurred after Jessica
asked Mares for permission to get a drink of water. After Jessica
left her seat, Mares followed her over to the water fountain and,
as she leaned over, placed his hand inside her underwear and
touched her vagina. When Jessica reported Mares' actions to her
mother that afternoon, Gloria Gonzalez immediately returned to
school with her daughter and a family friend to speak to Richard
Gore, Glen Cove's Principal.
Gore "did not go into the full details" of the incident at
this brief meeting and thus did not obtain a statement from
10
Jessica, but he was able to gain the substance of the allegation
from Mrs. Gonzalez. Gore also learned that the Gonzalezes had
already contacted the police. In accordance with YISD policy, Gore
reported the alleged assault to the Texas Department of Human
Resources and then consulted Resendez. Resendez decided
immediately to suspend Mares with pay pending a hearing before the
Board of Trustees. Notwithstanding the Gonzalezes' refusal to
cooperate in the investigation, the Board held a hearing and voted
to suspend Mares without pay pending the outcome of the criminal
investigation into the incident. After a trial in Texas state
court, at which Leticia Peña and Jessica Gonzalez both testified,
Mares was convicted on charges of indecency with a child. The
Board fired Mares on grounds that he had been convicted of a felony
in August 1987.
The Gonzalezes filed this § 1983 suit in U.S. District Court
for the Western District of Texas in March 1989, contending that
their daughter's injuries were attributable to the school
district's policies and customs regarding sexual abuse.5 At trial,
YISD conceded that Jessica Gonzalez' constitutional right to
personal security had been violated and the only issue for the jury
was the responsibility of the school district.
The district court submitted both "policy" and "custom" as two
distinct theories of liability, with separate interrogatories under
Rule 49 of the Federal Rules of Civil Procedure. The jury declined
5
The Gonzalezes elected to proceed against the school
district only; none of the various school employees and
administrators involved were named as defendants.
11
to find that YISD had "maintained a persistent, widespread custom
or practice that authorized, tolerated, or condoned sexual abuse of
students by teachers." The jury did find, however, that the school
district had a "formal policy, statement, ordinance, regulation or
decision that authorized, tolerated, or condoned sexual abuse of
students by teachers." The jury also expressly found that this
policy proximately caused Jessica Gonzalez' injuries and awarded
damages of $500,000. The district court denied YISD's motion for
judgment notwithstanding the verdict and entered judgment in favor
of the Gonzalezes. The school district then filed a timely notice
of appeal.
II.
The school district makes three main points on appeal. It
first contends that the jury's finding that a district "policy"
caused the injury to Jessica Gonzalez is not supported by the
evidence. YISD also maintains that the trial court did not charge
the jury that only those actions by the Board of Trustees could sum
to district policy. Finally, the school district asserts that the
trial court erred in failing to charge the jury that YISD could be
held liable for Jessica Gonzalez' injuries only if the decision by
the Board of Trustees manifested deliberate indifference to the
constitutional rights of schoolchildren.6
6
As we indicated above, the school district conceded for
purposes of trial that the Due Process Clause afforded students
protection from sexual abuse by school employees. It also conceded
that Mares' March 9, 1987 assault on Jessica Gonzalez constituted
a violation of this constitutional right. For this reason, we have
no occasion to consider the existence and contours of this asserted
constitutional right, an issue pending before the en banc court.
12
The Gonzalezes argue that these issues are not properly before
this court because the school district failed to preserve them for
appeal. Specifically, they assert that YISD's failure to move for
a directed verdict precludes a review of the sufficiency of the
evidence. Second, there was no objection to any failure of the
charge to identify the Board of Trustees as the sole policymaking
entity. Finally, the Gonzalezes maintain that YISD waived the
deliberate indifference instruction as well.
A.
The school district moved for directed verdict both at the
close of the Gonzalezes' case and at the conclusion of all the
evidence. The grounds asserted by YISD in each motion, however,
were not, at least on their face, identical. At the close of the
Gonzalezes' case-in-chief, the school district cited two reasons in
support of its motion:
[T]he plaintiffs' evidence does not support the
proposition that any policymaker displayed any deliberate
indifference to the rights of Jessica Gonzalez in the
exercise of the investigation policy and the policy FFG
dealing with investigations and reporting of complaints
about sexual abuse of children. Also on the grounds that
the plaintiff has not proved that the investigation
policy caused Andres Mares to commit the abuse against
Jessica Gonzalez in 1987.
At the close of all the evidence, the school district renewed its
motion for directed verdict. It repeated the two grounds offered
in the first motion, but then added "that it has not been shown
that there was any policymaker involved with any of the action that
See Doe v. Taylor Independent School Dist., 975 F.2d 137 (5th Cir.
1992), reh'g, en banc, granted, 987 F.2d 231 (5th Cir. 1993).
13
could have conceivably caused any injury. No one who made any
decisions under the policy was in fact a policymaker."
The Gonzalezes maintain that the school district's failure to
include this "separate" issue--which they understand to be that
their daughter's injuries were not caused by any actions taken by
policymakers--prohibits it from raising it on appeal. According to
the Gonzalezes, we may not review the evidence supporting a
particular element "unless a motion for directed verdict was made
at both the close of a plaintiffs' case and the close of all the
evidence by the party seeking review." Since Rule 50 requires
movants to "state the specific grounds therefor," the argument
continues, a claim that is raised for the first time at the close
of the evidence is not preserved for appeal. The Gonzalezes thus
conclude that YISD has waived its challenge to the evidence
supporting the jury's finding that Jessica's injuries were caused
by the decisions made by the district's policymakers.
This argument is meritless. In the first instance, we read
the purportedly "new" ground that "there was [no] policymaker
involved with any of the actions that could have conceivably caused
any injury" advanced at the close of the evidence to be fairly
included in the first motion, which requested a directed verdict
"on the grounds that the plaintiff has not proved that the
investigation policy caused Andres Mares to commit the abuse
against Jessica Gonzalez in 1987." As the school district
suggests, and our discussion below discloses, the policymaker's
actions and YISD "policies" are inseparable, for the district
14
"policy" at issue in this case consists of the decisions made by
the policymakers.7
Moreover, appellate review would not be barred even if we were
to view the motion offered at the close of all the evidence as
raising a new issue. The Gonzalezes maintain that only those
grounds contained in directed verdict motions filed at the close of
the plaintiff's case are preserved for appeal. This interpretation
of Rule 50 is flatly inconsistent with our precedents, which
require only a motion at the close of all the evidence: "According
to Rule 50 (b) of the Federal Rules of Procedure, a party may only
base a motion for judgment notwithstanding the verdict on a ground
that he included in a prior motion for directed verdict at the
close of all the evidence." Hinojosa v. City of Terrell, 834 F.2d
1223, 1227-28 (5th Cir. 1988) (citing Jones v. Benefit Trust Life
Ins. Co., 800 F.2d 1397, 1401 (5th Cir. 1986); Sulmeyer v. Coca
Cola Co., 515 F.2d 835 (5th Cir. 1975), cert. denied, 424 U.S. 934
(1976)); Bohrer v. Hanes Corp., 715 F.2d 213, 217 (5th Cir. 1983),
cert. denied, 104 S. Ct. 1284 (1984); Merwine v. Board of Trustees,
754 F.2d 631, 634 (5th Cir.), cert. denied, 106 S. Ct. 76 (1985).
See also Redd v. City of Phenix, 934 F.2d 1211, 1214 (11th Cir.
7
Thus, the school district's motion for judgment
notwithstanding the verdict listed only two grounds for relief:
(a) The evidence does not support the proposition that any
policymaker displayed any "deliberate indifference" to the rights
of Jessica Gonzalez by any decision or in the exercise of the
School District's investigation policy; and
(b) The investigation policy of the School District and decision
made pursuant thereto did not "cause" Andres Mares to sexually
abuse Jessica Gonzalez.
15
1991); Riverview Investments, Inc. v. Ottawa Community Imp. Corp.,
899 F.2d 474, 476 (6th Cir.), cert. denied, 111 S. Ct. 151 (1990);
Reeves v. Teuscher, 881 F.2d 1495, 1498 (9th Cir. 1989). We will
review YISD's challenge of the sufficiency of the evidence on the
merits.8
B.
The school district also contends that the district court
erred in failing to identify, prior to submitting the case to the
jury, the actors responsible for determining policy. Specifically,
it maintains that the trial court should have instructed the jury
that only the actions of the Board of Trustees, to the exclusion of
8
Failure to comply with Rule 50 will not, in certain
circumstances, preclude appellate review. See 9 C. Wright & A.
Miller, Federal Practice and Procedure § 2537, at 596-98 (1971 &
1992 Supp.). The most common exception is not, as the Gonzalezes'
theory might have it, cases in which a motion was made at the close
of the evidence but not at the close of plaintiff's case-in-chief,
but those where a motion made after the plaintiff's case is not
renewed at the close of the evidence. See, e.g., McCann v. Texas
City Refining, Inc., 984 F.2d 667, 671 (5th Cir. 1993); Miller v.
Rowan Companies, Inc., 815 F.2d 1021, 1024 (5th Cir. 1987);
Villanueva v. McInnis, 723 F.2d 414, 416-17 (5th Cir. 1984).
The Gonzalezes have cited only one decision that arguably
provides support for its position that Rule 50 requires a motion
for directed verdict at the close of the plaintiff's case as well
as at the close of all of the evidence. In In re Owners of "Harvey
Oil Center", 788 F.2d 275 (5th Cir. 1986), this court held, without
explanation or citation, that "[b]ecause [defendant] failed to move
for a directed verdict at the close of the plaintiffs' case, its
motion for judgment notwithstanding the verdict on this point had
no proper predicate." Id. at 278. This statement, if given the
broad application proposed by the Gonzalezes, is inconsistent with
what came before, see, e.g., Merwine, 754 F.2d at 634, and what
followed. See, e.g., Hinojosa, 834 F.2d at 1227-28. For this
reason, we believe that this apparent holding of Harvey Oil Center
is best confined to the special circumstances--collateral estoppel
in bankruptcy--present in that case.
16
administrators and teachers, could constitute "official policy" for
which YISD was responsible.
The school district properly stresses that it is for the
court, not the jury, to determine which officials have final
policymaking authority. After some initial disagreement, compare
St. Louis v. Praprotnik, 108 S. Ct. 915, 924-25 (1988) (plurality
opinion) (this question is a matter of interpretation of state law,
and therefore one for the court) with id. at 934 (Brennan, J.,
concurring in judgment) (jury "must determine where such
policymaking authority actually resides"), the Supreme Court
settled this issue in Jett v. Dallas Independent School District,
109 S. Ct. 2702 (1989):
As with other questions of state law relevant to the
application of federal law, the identification of those
officials whose decisions represent the official policy
of the local governmental unit is itself a legal question
to be resolved by the trial judge before the case is
submitted to the jury . . . . Once those officials who
have the power to make official policy on a particular
issue have been identified, it is for the jury to
determine whether their decisions have caused the
deprivation of rights . . . .
109 S. Ct. at 2723 (emphasis in original). See also Crowder v.
Sinyard, 884 F.2d 804, 830 (5th Cir. 1989), cert. denied, 110 S. Ct.
2617 (1990); Worsham v. City of Pasadena, 881 F.2d 1336, 1344 (5th
Cir. 1989). Texas law provides that the Board of Trustees is
responsible for determining school policy. Tex. Educ. Code Ann.
§ 23.26 (b). See Kinsey v. Salado Indep. School Dist., 950 F.2d
17
988, 995 (5th Cir.) (en banc), cert. denied, 112 S. Ct. 2275 (1992);
Daniels v. Morris, 746 F.2d 271, 277 (5th Cir. 1984).9
Our review of the jury instructions discloses that the trial
court did not, contrary to the dictates of Jett and Praprotnik,
indicate that only the Board of Trustees had the capacity to make
policy. Rather, the instructions contain several references to
"the Board of Trustees or some person who had final policymaking
authority." We find, however, that the school district has not
preserved this issue for appeal. "No party may assign as error the
giving or the failure to give an instruction unless that party
objects thereto before the jury retires to consider its verdict,
stating distinctly the matter objected to and the grounds of the
objection." Fed.R.Civ.P. 51. The school district not only failed
to lodge an objection to the court's various references to "the
Board of Trustees or some person who had final policymaking
authority," but couched its proposed jury instructions, some of
which were adopted by the court, in identical terms. The school
district has plainly waived this issue.10
9
As the Court in Jett indicated, "the relevant legal
materials" to be consulted in identifying policymakers include not
only "state and local positive law," but also "'"custom or usage"'
having the force of law.'" Jett, 109 S. Ct. at 2733 (quoting
Praprotnik, 108 S. Ct. at 924 n.1). Neither the Gonzalezes nor
YISD, however, has suggested that final policymaking authority
within the school district lies other than where Texas statutory
law provides.
10
YISD contends that the district court's omission of this
instruction allowed the jury to ground its verdict on the
impermissible theory of respondeat superior. We note, however,
that the Gonzalezes were careful to confine their policy argument
to actions of the Board of Trustees. For example, in his closing
argument, plaintiffs' counsel explained the jury's inquiry in these
18
C.
YISD finally contends that the district court committed
reversible error in failing to charge the jury that the school
district could be found liable under § 1983 only if its policy
reflected a deliberate indifference to the constitutional rights of
schoolchildren. We find that the school district adequately
preserved this issue under Rules 49 and 51 by making several
objections to the trial court's omission of the proposed
instruction and interrogatory. The propriety of this omission thus
depends, as an initial matter, on whether school district liability
under § 1983 must be predicated on a showing of deliberate
indifference. It is to this question that we now turn.
terms: "[T]he second question asks you about a decision of the
Ysleta Independent School District. That decision was not made by
[Principal] Nellie Morales, it was not made by the administrators,
it was made by the Board of Trustees of the Ysleta Independent
School District."
Chief Judge Bunton as well as YISD's counsel apparently shared
this understanding of the Gonzalezes' policy claim at trial. The
following exchange took place during the hearing on the parties'
proposed jury instructions:
[Judge Bunton]: As I understand it, they are saying this
policy which the board had actually caused Jessica
Gonzalez to be molested because instead of getting rid of
[Mares] the first time, or instead of putting him in a
warehouse or something, [whatever] they did with somebody
else, instead of doing that, they allowed him to go right
back into the classroom, the same deal with little girls.
That is my understanding of the theory. Is that wrong?
[Counsel]: That may be the theory, but it is the
defendants' contention that under the law, that is not
enough to show a 1983 liability against a school
district.
19
III.
The Gonzalezes prevailed at trial on the theory that the YISD
Board of Trustees' decision to transfer Mares to their daughter's
school was a proximate cause of Jessica's injury. The school
district contends that such an allegation, even if accepted as
true, cannot support a finding of liability under § 1983. YISD
asserts that an ad hoc, isolated decision, even when made by
policymakers, does not constitute the sort of "policy" upon which
municipal liability may be predicated under Monell v. New York City
Dep't of Social Services, 436 U.S. 658 (1978), especially where, as
here, this act is contrary to the district's own formal policies
for handling the matter in question. Second, and more importantly,
YISD maintains that even if a single, aberrant decision may
establish an actionable "policy," liability cannot attach unless
the decisionmaker was at a minimum deliberately indifferent to its
likely consequences. Because the district court's instructions did
not require the jury to find that the Board of Trustees acted with
the requisite level of fault, YISD asserts that its verdict in
favor of the Gonzalezes cannot stand.
We find the school district's first argument unpersuasive.
Under Monell, local governments are responsible for constitutional
wrongs visited upon citizens pursuant to official "policy."
"Policy" consists of a "policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body's
officers," Monell, 436 U.S. at 690, and encompasses the actions of
20
a municipality's "lawmakers" as well as "those whose edicts or acts
may fairly be said to represent official policy." Id. at 694.
The term "often refers to formal rules and understandings," but its
meaning is not exhausted by "fixed plans of actions to be followed
under similar circumstances consistently and over time." Pembaur
v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). To the
contrary, it is well established that a municipality may be held
liable for "course[s] of action tailored to a specific situation
and not intended to control decisions in later situations,"
provided that "the decision to adopt that particular course of
action is properly made by that government's authorized
decisionmakers." Id. at 481. See, e.g., id. (county prosecutor
ordered a forcible entry into physician's office); Newport v. Fact
Concerts, Inc., 101 S. Ct. 2748 (1981) (city council cancelled
concert because of disagreement over performance's content); Owen
v. City of Independence, 445 U.S. 622 (1980) (city council passed
a resolution firing police chief without a pretermination hearing);
Hill v. City of Pontotoc, No. 92-7337 (5th Cir. 1993) (board of
alderman fired fire chief without due process); Boddie v. City of
Columbus, 989 F.2d 745 (5th Cir. 1993) (fire chief terminated
employee because of union activities). Finally, the existence of
a well-established, officially-adopted policy will not insulate the
municipality from liability where the policymaker herself departs
from these formal rules. See, e.g., Praprotnik, 108 S. Ct. at 928.
The Board of Trustees' conscious decision to transfer Mares in
response the Peñas' allegations rather than remove him from the
21
classroom or report the incident to the Department of Human
Resources--the response its past practice might have portended and
its own sexual abuse policy would seem to have required--plainly
constitutes a "policy" attributable to the school district. Courts
often face difficult questions regarding the location, see, e.g.,
Praprotnik, or scope, see, e.g., Auriemma v. Rice, 957 F.2d 397,
399-401 (7th Cir. 1992), of final policymaking authority, but "[n]o
one has ever doubted . . . that a municipality may be liable under
§ 1983 for a single decision by its properly constituted
legislative body." Pembaur, 475 U.S. at 480. The Board's decision
to transfer Mares represents a final action by the entity charged
with making and executing policy within the school district; it is
indistinguishable in this respect from the actions taken by the
city councils in Newport and Owen and the county prosecutor in
Pembaur.
The "policy" in this case differs from those at issue in
Monell and other prior cases in another, significant way, however.
In those cases, the policymaker's decision directly ordered the
action found to be unconstitutional. Monell, for example, involved
a written rule which the Court interpreted to require pregnant
employees to take unpaid leaves of absence before they were
medically necessary; Newport, a decision by the city council to
cancel a concert on the basis of content; Pembaur, a decision by
the county prosecutor forcibly to enter an office. The "policy" in
each instance not only led to a constitutional violation, but
compelled it. In this case, however, the Gonzalezes do not
22
maintain that the Board ordered Mares to assault their daughter or
that it intended this result. The Board's "policy" may have
produced or caused the constitutional violation but, unlike the
policymaker's actions in Monell and Pembaur, it is not itself
unconstitutional. Both parties recognize this factual
dissimilarity, but differ sharply as to its legal relevance.11
The Gonzalezes argue, as Justice Brennan did in City of
Oklahoma City v. Tuttle, 105 S. Ct. 2427 (1985), that any
"distinction between policies that are themselves unconstitutional
and those that cause constitutional violations" is "metaphysical":
"If a municipality takes actions--whether they be of the type
alleged in Monell, Owen, or this case--that cause the deprivation
of a citizen's constitutional rights, § 1983 is available as a
remedy." Id. at 2441 n.8 (Brennan, J., concurring). "Monell," the
Gonzalezes, again following Justice Brennan, contend, "is a case
about responsibility." Pembaur, 106 S. Ct. at 1297. The
distinction between the acts of the municipality and the acts of
its employees is preserved--and respondeat superior avoided--
through an exacting application of Monell's "'official policy'
requirement," id. at 1298, which provides that "municipality
liability under § 1983 attaches where--and only where--a deliberate
choice to follow a course of action is made from among various
alternatives by the official or officials responsible for
11
The distinction between constitutional and
unconstitutional policies is frequently a matter of semantics in
cases in which a single decision is challenged. This is not true
here, however, because the school district conceded the
constitutional violation.
23
establishing final policy with respect to the subject matter in
question." Id. at 1300. Where the direct action of the
policymaker, rather than the conduct of subordinates, is involved,
the municipality has itself acted, and the sole question is one of
causation. This final issue, while not to be gauged by the
standards of ordinary tort law, see Martinez v. California, 444
U.S. 277, 285 (1980), does not warrant an approach that would
attach significance to the facial validity of the challenged
policy.
The school district maintains that the concept underlying
Monell is not "responsibility," but "fault," for, contrary to the
Gonzalezes' reading, Monell "provides a fault-based analysis for
imposing municipal liability." Tuttle, 105 S. Ct. at 2433
(plurality). YISD agrees that Monell's emphasis on "policy" serves
to foreclose liability on the impermissible basis of respondeat
superior, but urges that this "requirement was intended to prevent
the imposition of municipal liability," not in cases in which
policymakers were not responsible, but "under circumstances where
no wrong could be ascribed to municipal decisionmakers." Id. at
2435 (emphasis added). Put another way, § 1983 permits recovery
only "when it can be fairly said that the city itself is the
wrongdoer." Collins v. City of Harker Heights, 112 S. Ct. 1061,
1067 (1992).
According to the school district, "establish[ing] the
existence of the policy," at least as the Gonzalezes and Justice
Brennan understand that term, is necessary but not sufficient under
24
§ 1983; plaintiffs must also introduce "evidence showing that the
city was at fault for establishing the policy." City of
Springfield v. Kibbe, 107 S. Ct. 1114, 1121 (1987) (O'Connor, J.,
dissenting). Predicating municipal liability solely on the
presence of "a deliberate choice to follow a course of action" on
the part of policymakers would render Monell a "dead letter," since
the sheer number of such decisions required by governance ensures
that "if one retreats far enough from a constitutional violation
some municipal 'policy' can be identified behind almost any such
harm inflicted by a municipal official." Tuttle, 105 S. Ct. at
2436. Where the challenged policy is unconstitutional on its face,
as those in Monell, Owen, Newport, and Pembaur were, no additional
"evidence [is] needed other than a statement of the policy by the
[policymaker], and its exercise," id., for it is plain that the
constitutional violation flows directly from the policymaker's
deliberate choice. On the other hand, where, as here, a policy in
some sense causes, but does not compel, a constitutional violation,
plaintiffs must establish that the particular harm-producing
deficiency "resulted from conscious choice," that is, they must
supply "proof that the policymakers deliberately chose [measures]
which would prove inadequate." Id. Unless the policy itself is
unconstitutional, YISD concludes, § 1983 provides a remedy only if
it was enacted with deliberate indifference to constitutional
rights.
The school district locates this bright-line rule in City of
Canton v. Harris, 109 S. Ct. 1197 (1989). In Canton, a unanimous
25
Court held that a facially valid municipal policy may give rise to
§ 1983 liability if, as a result of inadequate training, it is
unconstitutionally applied by city employees. Id. at 1204. In
keeping with Monell's proscription of respondeat superior as a
theory of recovery, the Court limited liability to those cases
where the city's failure to train amounts to deliberate
indifference to the constitutional rights of its citizens. Id. at
1204-05. It is only when such an omission "evidences a 'deliberate
indifference' to the rights of its inhabitants can such a
shortcoming be properly thought of as a city 'policy or custom'
that is actionable under § 1983," which, the Court reminded,
consists of "'a deliberate choice to follow a course of action . .
. made from among various alternatives' by city policy makers."
Id. at 1205 (quoting Pembaur, 106 S. Ct. at 1300) (ellipses added));
see also id. at 1208 (O'Connor, J., concurring) ("Where a § 1983
plaintiff can establish that the facts available to city
policymakers put them on actual or constructive notice that the
particular omission is substantially certain to result in the
violation of the constitutional rights of their citizens, the
dictates of Monell are satisfied"). Because the Board of Trustees'
decision regarding Mares was not itself unconstitutional, YISD
concludes, the Gonzalezes may prevail under Canton only if the
Board was deliberately indifferent to the welfare of students in
failing to remove him from the classroom.
The Gonzalezes do not, at least at the outset, challenge
Canton's "deliberate indifference" requirement, but question the
26
rule's application to claims, such as theirs, where a "policy" has
been established. Such claims rest on the actions of the
policymaker, and therefore differ materially from "failure to
train" claims, which, like those alleging an unconstitutional
"custom," seek to hold the city liable for the policymaker's
omissions. In custom cases, as in "failure to train" cases,
plaintiffs contend that improper conduct among employees should be
attributed to the city "even though such a custom has not received
formal approval through the body's official decisionmaking
channels." Monell, 436 U.S. at 691. Noting that the Court in
Canton appeared to equate these two types of claims by suggesting
that Harris' "custom" claim was "little more than a restatement of
her 'failure-to-train as policy' claim," 109 S. Ct. at 1203 n.5, the
Gonzalezes point out that the inquiry prescribed by the Court in
Canton closely resembles the standard applied in custom cases.
Compare 109 S. Ct. at 1205 & n.10 ("need for further training [is]
plainly obvious to the city policy makers" but they fail to act)
and id. at 1208 (O'Connor. J., concurring) (policymakers fail to
act despite having "actual or constructive notice that the
particular omission is substantially certain to result in the
violation of the constitutional rights of their citizens") with
Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.) (municipalities
may be held liable on the basis of custom if policymakers had
"actual or constructive knowledge of [city employees' misconduct]
yet did nothing to end the practice"), cert. denied, 110 S. Ct. 75
(1989). Through the use of a familiar tort law construct,
27
plaintiffs in each case ask courts to infer act from omission,
assent from silence, by showing that policymakers were aware of
abusive or deficient practices and yet did nothing to curb them.
The "deliberate indifferent" requirement permits courts to separate
omissions that "amount to an intentional choice" from those that
are merely "unintentionally negligent oversight[s]." Rhyne v.
Henderson County, 973 F.2d 386, 392 (5th Cir. 1992).
Proof of deliberate indifference is unnecessary here, the
Gonzalezes assert, because we need not rely on inferences to
establish the existence of an intentional choice for which the
school district should be held responsible. The YISD Board of
Trustees did make a "deliberate choice . . . from among various
alternatives." Pembaur, 106 S. Ct. at 1300. It could have
suspended Mares, ordered further investigation, scheduled a
hearing, issued a more severe reprimand, or even provided for
closer monitoring of his classroom. Instead, the Board chose to
transfer him to a different elementary school within the district.
To require an additional showing of deliberate indifference would
collapse the dichotomy between act and omission underlying "policy"
and "custom" as distinct theories of recovery and impermissibly
deprive the school board's decision of legal significance.
The Gonzalezes' contention that the relevant distinction under
§ 1983 lies between the policymaker's acts and omissions, not
unconstitutional and constitutional policies, is not wholly
unpersuasive. Their argument is, however, foreclosed by Canton,
where the Court made plain that municipal liability must be
28
predicated upon a showing of "fault," not merely "responsibility."
While a claim cast in terms of a "failure to train" suggests an
attempt to hold the city liable for its omissions, the Court
recognized that Harris' suit could also be characterized as a
challenge to the city's existing training program; her claim that
"the city 'could have done' [something] to prevent the unfortunate
incident," Canton, 109 S. Ct. at 1206, was at bottom an assertion
that the city should have provided "more or different training."
Id. at 1205. Since the inadequate training program had been
officially adopted by the city's policymakers, the Court indicated
that it could be regarded as a "policy for which the city is
responsible." Id. "That much may be true," the Court stated, but
proof of an inadequate policy, without more, is insufficient to
meet the threshold requirements of § 1983. Id. In order to
establish an actionable "policy" under Monell, plaintiffs must
demonstrate that the particular inadequacies which led to the
constitutional violation, not simply the program itself, were the
products of deliberate choice. In the absence of a facially
unconstitutional policy, that is, "a policy of not taking
reasonable steps to train its employees," id., plaintiffs may
establish the requisite fault by proving that "the need for more or
different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been
deliberately indifferent to the need." Id. It is only with this
additional showing that a "'policy of inaction'" becomes an
29
actionable "decision by the city itself to violate the
Constitution." Id. at 1208 (O'Connor, J., concurring).
The circuits have uniformly interpreted Canton's "deliberate
indifference" requirement, announced in the context of a "failure
to train" claim, to apply to all cases involving facially
constitutional policies. As the Ninth Circuit, for example,
recently held:
The existence of a policy, without more, is insufficient
to trigger local government liability under section 1983.
Under City of Canton, before a local government entity
may be held liable for failing to act to preserve a
constitutional right, plaintiff must demonstrate that the
official policy "evidences a 'deliberate indifference'"
to his constitutional rights.
Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (quoting
Canton, 109 S. Ct. at 1205) (citations omitted). See Rhyne v.
Henderson County, 973 F.2d 386, 392 (5th Cir. 1992) ("[the issue
is] whether Henderson County acted with deliberate indifference in
adopting policies regarding care of inmates known to be suicidal");
Benavides v. County of Wilson, 955 F.2d 968, 974 (5th Cir.) (the
evidence "does not indicate that [the sheriff] was deliberately
indifferent in hiring or retaining . . . jailers and deputies"),
cert. denied, 110 S. Ct. 2617 (1990); Crowder v. Sinyard, 884 F.2d
804, 830-31 (5th Cir. 1989) ("There is nothing in the record before
us that indicates that any policies of the City of Texarkana
reflected deliberate indifference to any constitutional concerns or
were anything other than generic policies favoring effective law
enforcement"), cert. denied, 110 S. Ct. 2617 (1990); Wassum v. City
of Bellaire, 861 F.2d 453, 456 (5th Cir. 1988) ("a plaintiff must
30
demonstrate that those hiring practices that led it to employ the
police officer constituted gross negligence amounting to conscious
indifference to the welfare of the public"); Graham v. Sauk
Prairie Police Commission, 915 F.2d 1085, 1100-01 (7th Cir. 1990)
("Clearly these procedures do not directly violate any
constitutional guarantees. Like the plaintiff in Canton, Graham
bases her § 1983 municipal liability claim solely on the
defendants' allegedly inadequate acts as 'policy.' Accordingly, the
standard of fault and the principles which applied to the claim of
inadequate training in Canton must guide our determination of
municipal liability in this case"); Ware v. Unified School Dist.,
902 F.2d 815, 819 (10th Cir. 1990) ("we remain convinced that a
causal connection between the unconstitutional act and the
authorized decisionmakers may be established when the governing
body has exercised its decisionmaking authority with deliberate
indifference to the constitutional rights of those affected by its
decisions"); D.T. by M.T. v. Independent School Dist., 894 F.2d
1176, 1193 (10th Cir.) ("a consciously adopted 'policy' (here the
established procedure of the School District in the investigation,
hiring and supervision of teachers) must, in a causal sense,
reflect deliberate indifference to the constitutional rights of
[students]"), cert. denied, 111 S. Ct. 213 (1990); Dorman v.
District of Columbia, 888 F.2d 159, 165 (D.C.Cir. 1989) ("there is
no evidence of a conscious choice or a policy of deliberate
indifference") (emphasis in original); Stoneking v. Bradford Area
School Dist., 882 F.2d 720, 725 (3d Cir. 1989) ("As the Supreme
31
Court recently reconfirmed in [Canton], a municipality may be held
under section 1983 where its policymakers made 'a deliberate choice
to follow a course of action . . . from among various
alternatives,' and the policy chosen 'reflects deliberate
indifference to the constitutional rights of [the city's]
inhabitants'" (quoting Canton, 109 S. Ct. at 1205-06), cert. denied,
110 S. Ct. 840 (1990).
The Gonzalezes' "policy" claim is indistinguishable from those
advanced in these previous cases. They do not argue that the
Board's decision itself violated the Constitution by ordering or
compelling Mares to assault their daughter. Rather, they maintain,
as Fernando Peña testified, that its choice to transfer Mares in
response to allegations of sexual abuse was "inadequate." As such,
their claim is controlled by Canton and our many precedents that
have required a showing of deliberate indifference before holding
a city liable for a policymaker's mistaken personnel decisions.
See, e.g., Benavides, 955 F.2d at 972-75.
The Gonzalezes argue that this broad reading of Canton brings
the decision into conflict with several of the Court's prior
holdings and therefore cannot be correct. Specifically, they
contend that conditioning recovery upon proof that policymakers
acted with deliberate indifference to constitutional rights
improperly imports a state of mind requirement into § 1983, see
Daniels v. Williams, 106 S. Ct. 662, 664 (1986); Parratt v. Taylor,
451 U.S. 527, 534 (1981); Monroe v. Pape, 365 U.S. 167, 187 (1961),
and has the effect of extending good-faith immunity to
32
municipalities, a step expressly rejected by the Court in Owen v.
City of Independence, 445 U.S. 622 (1980). This argument gives us
pause, but does not provide grounds for this court to adopt the
Gonzalezes' approach.
The Supreme Court has consistently held that § 1983 "contains
no state-of-mind requirement independent of that necessary to state
a violation of the underlying constitutional right." Daniels, 106
S. Ct. at 664; Parratt, 451 U.S. at 534 ("Nothing in the language of
§ 1983 or its legislative history limits the statute solely to
intentional deprivations of constitutional rights . . . . Section
1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never
been found by this Court to contain a state-of-mind requirement").
In Canton, however, the Court held that plaintiffs bringing
"failure to train" claims must prove that the city's policymakers'
failure to adopt additional precautions reflected deliberate
indifference to the rights of citizens, a standard of fault which,
the Court made plain, remained separate from, and independent of,
the state-of-mind necessary to establish a constitutional
violation. Canton, 109 S. Ct. at 1204 n.8 ("The 'deliberate
indifference' standard we adopt for § 1983 'failure to train'
claims does not turn upon the degree of fault (if any) that a
plaintiff must show to make out an underlying claim of a
constitutional violation"); accord Collins v. City of Harker
Heights, 112 S. Ct. 1061, 1068 n.7. The Gonzalezes contend that the
holdings in Daniels and Parratt may be preserved only if Canton's
rationale does not reach inadequate, but constitutional policies
33
and decisions, and is instead confined to cases in which
policymakers have truly failed to act. Otherwise, they conclude,
the Court's decision represents an adoption, sub silentio, of a
view previously urged only in dissent. See Procunier v. Navarette,
434 U.S. 555, 568 (1978) (Burger, C.J., dissenting) ("Neither the
language nor the legislative history of § 1983 indicates that
Congress intended to provide remedies for negligent acts. I would
hold that one who does not intend to cause and does not exhibit
deliberate indifference to the risk of causing the harm that gives
rise to a constitutional claim is not liable for damages under
§ 1983").
As stated above, see supra at 29-32, we do not believe that
Canton is capable of bearing this reading. In order for municipal
liability to attach, plaintiffs must offer evidence of not simply
a decision, but a "decision by the city itself to violate the
Constitution." Id. at 1208 (O'Connor, J., concurring).
Inadequate, but constitutional policies and decisions rise to the
same, actionable plane as the unconstitutional policies considered
in Monell, Owen, Newport, and Pembaur only upon a showing that they
were enacted or made with deliberate indifference to their possible
unconstitutional consequences. Since "[f]acially unconstitutional
policies that mandate unconstitutional conduct evince an intent
that such violations occur," Kritchevsky, Making Sense of State of
Mind: Determining Responsibility in Section 1983 Municipality
Liability Litigation, 60 Geo. Wash. L. Rev. 417, 473 n.292 (1992),
Monell's policy requirement may be restated wholly in terms of
34
fault: "A municipality only can be held liable for a constitutional
violation caused by a municipal policy that manifests at least
deliberate indifference to constitutional rights." Id. at 473.
See, e.g., Medina v. Denver, 960 F.2d 1493, 1500 (10th Cir. 1992);
("negligence and gross negligence do not give rise to section 1983
liability"); Stokes v. Bullins, 844 F.2d 269, 273 (5th Cir. 1988)
("One may read the tea leaves and conclude that mere negligence
will not ultimately be a sufficient basis for § 1983 municipal
liability"); cf. Buffington v. Baltimore County, 913 F.2d 113, 122
n.2 (4th Cir. 1990) (The standard of fault announced in Canton
"does not of course displace the firmly established rule that
§ 1983 contains no independent state-of-mind requirement governing
the liability of the immediate wrongdoer"), cert. denied, 111 S. Ct.
1106 (1991). See also Bator, et al., Hart & Wechsler's The Federal
Courts and the Federal System 1256-57 (3d ed. 1988); Brown,
Correlating Municipal Liability and Official Liability under
Section 1983, 1989 U. Ill. L. Rev. 625, 654; Mead, 42 U.S.C. § 1983
Liability: The Monell Sketch Becomes a Distorted Picture, 65 N.C.L.
Rev. 517, 545 (1987); Nahmod, Section 1983 Discourse: The Move from
Constitution to Tort, 77 Geo.L.J. 1719, 1729 n.71 (1989). Daniels
and Parratt notwithstanding, what the Gonzalezes would describe as
Canton's deliberate indifference "exception" has apparently become
the rule, at least for these commentators and courts.
The Gonzalezes maintain that this "rule," under which
municipalities may be held liable only if their policies reflect a
deliberate indifference to constitutional rights, also contravenes
35
the Court's decision in Owen v. City of Independence, 445 U.S. 622
(1980). In Owen, the Court found that the history and policy
considerations underlying § 1983 did not support an extension of
the good-faith immunity enjoyed by public officials in their
individual capacities to municipalities. See id. at 657. While
qualified immunity shields a city's officers from damages caused by
their transgression of rights not "clearly established" at the time
of their conduct, see, e.g., Anderson v. Creighton, 107 S. Ct. 3034
(1987); Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982), the city
itself is "strictly liable" for all constitutional violations
committed pursuant to its policies. See, e.g., Pembaur v. City of
Cincinatti, 106 S. Ct. 1292, 1297 n.5, 1301-02 (1986) (applying
retroactively Steagald v. United States, 101 S. Ct. 1642 (1981)).
Because policymakers cannot be said to be deliberately indifferent
to constitutional rights that were not clearly established at the
time they acted, the Gonzalezes assert that applying Canton's
heightened standard of fault in "policy" cases affords
municipalities the same immunity withheld in Owen.
It is not clear that an embrace of Canton necessarily implies
a rejection of Owen. There are some indications that Canton
requires a showing of deliberate indifference to citizens'
constitutional rights, not merely the harm inflicted by city
employees that gives rise to constitutional claims. See Canton,
109 S. Ct. at 1205 (municipal liability may attach when "the need
for more or different training is so obvious, and the inadequacy so
likely to result in the violation of constitutional rights, that
36
the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need"); id. at 1208 (O'Connor, J.,
concurring) ("Without some form of notice to the city, and the
opportunity to conform to constitutional dictates both what it does
and what it chooses not to do, the failure to train theory of
liability could completely engulf Monell, imposing liability
without regard to fault"). It therefore may well be, as several
district courts have held, that "to be 'deliberately indifferent'
to rights requires that those rights be clearly established."
Watson v. Sexton, 755 F. Supp. 583, 588 (S.D.N.Y. 1991). Williamson
v. City of Virginia Beach, 786 F. Supp. 1238, 1264-65 (E.D.Va 1992)
("[Even if] the constitutional rights alleged by plaintiff did
exist, the conclusion that they were not clearly established
negates the proposition that the city acted with deliberate
indifference"), aff'd, 1993 U.S.App. Lexis 8421 (4th Cir. 1993);
Zwalesky v. Manistee County, 749 F. Supp. 815, 820 (W.D.Mich. 1990).
Because the facts of this case do not directly implicate these
questions, however, we need not resolve them. The arguments
advanced by the Gonzalezes' most able counsel have taken us far
afield and led us to treat the ultimate contours of a jurisprudence
that remains unsettled. Needless to say, it is for the Court
itself to address any perceived tension between Canton and its
earlier decisions, see, e.g., Rodriguez de Quijas v. Shearson/
American Exp., Inc., 109 S. Ct. 1917 (1989), and nothing we have
said should be taken as an indication that the principles
established in these prior cases retain anything less than their
37
full force. We do hold, however, that YISD may be held liable in
this case only if the Board of Trustees' decision to transfer Mares
to Jessica's elementary school manifested a deliberate indifference
to the welfare of school children.
IV.
The trial court did not instruct the jury in accordance with
this standard. Rather than requiring the Gonzalezes to prove that
the Board of Trustees' decision to keep Mares in the classroom
manifested a deliberate indifference to students' constitutional
right to bodily integrity, the district court advised the jury that
YISD could be held liable if its policies "authorized, tolerated,
or condoned sexual abuse of students by teachers." Because these
terms if anything provide for a higher standard of fault, we do not
regard the trial court's omission of the deliberate indifference
instruction as reversible error. We hold, however, that the trial
evidence is not sufficient to sustain the jury's verdict under
either standard and therefore reverse and render judgment in favor
of the school district.
A.
The district court submitted the following interrogatories to
the jury:
1. Do you find from a preponderance of the evidence
that the Ysleta Independent School District, between
January of 1985 and March of 1987, maintained a
persistent, widespread custom or practice that
authorized, tolerated, or condoned sexual abuse of
students by teachers?
2. Do you find from a preponderance of the evidence
that the Ysleta Independent School District had, between
January of 1985 and March of 1987, any formal policy,
38
statement, ordinance, regulation of decision that
authorized, tolerated or condoned sexual abuse of
students by teachers?
3. Do you find from a preponderance of the evidence
that either the persistent, widespread custom or
practice, or the formal policy, statement, ordinance,
regulation or decision of the defendant Ysleta
Independent School District (whichever you found in
Questions 1 and 2 existed between January of 1985 and
March of 1987) proximately caused injury to Jessica
Gonzalez?12
The jury answered both the second and third issue in the
affirmative and thus returned a verdict in favor of the Gonzalezes.
YISD contends that the district court committed reversible
error in refusing to advise the jury that liability could attach
only if the Board's decision to keep Mares in the classroom
reflected deliberate indifference to the rights of school children.
We do not agree. In light of our discussion in Part III, the
district court clearly should have included a deliberate
indifference instruction.13 The court did, however, inform the jury
12
Chief Judge Bunton's jury instructions on the issues of
"policy" and "custom" closely tracked the formulations contained in
the respective interrogatories. He did elaborate, however, on the
concept of proximate cause:
The term "proximate cause" means a cause which, in a
natural and continuous sequence, produces an event, and
without which cause such event would not have occurred.
In order to be a proximate cause the act or omission
complained of must be such that a person using ordinary
care would have foreseen the event, or some similar
event, might reasonably result therefrom.
13
The district court also should have instructed the jury
that the school district could be held liable of if its policies
were "the 'moving force [behind] the constitutional violation.'"
Canton, 109 S. Ct. at 1205 (citing Polk County v. Dodson, 102 S. Ct.
445, 454 (1981); Monell, 436 U.S. at 694). YISD did not object to
the trial court's omission, however; it is consequently not before
us on appeal.
39
that the Gonzalezes could recover only if the Board's policies or
decisions "authorized, tolerated or condoned sexual abuse of
students by teachers." Decisions that authorize, tolerate, or
condone, like those reflecting deliberate indifference, are made
with knowledge of the objectionable conduct; they all preclude a
finding of liability on the basis of negligence, that is, on what
the Board should have known. While courts must remain sensitive to
the subtle distinctions among different degrees of "scienter," we
cannot ignore the widespread, synonymous use of these terms in
§ 1983 cases. See, e.g., Canton, 109 S. Ct. at 1209 (O'Connor, J.,
concurring) ("I think municipal liability for failure to train may
be proper where it can be shown that policymakers were aware of,
and acquiesced in, a pattern of constitutional violations . . . .
The lower courts that have applied the 'deliberate indifference'
standard we adopt today have required a showing of a pattern of
violations from which a kind of 'tacit authorization' by city
policymakers can be inferred") (citing, inter alia, Languirand v.
Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983)); Doe v. Taylor
Independent School Dist., 975 F.2d 137, 149 (5th Cir. 1992) (jury
could find that supervisors' nonfeasance "was not merely negligent,
but grossly negligent, reckless, or deliberately (consciously)
indifferent; that [their] toleration of Stroud's alleged misconduct
for so long communicated their tacit condonation of his mal
feasance"), reh'g, en banc, granted, 987 F.2d 231 (5th Cir. 1993);
Hicks v. Frey, 1993 U.S. App. Lexis 11011, at *18-19 (6th Cir.
1993) ("The jury could have believed that Locke displayed
40
deliberate indifference to Hick's serious medical needs both by
failing to address them herself and by implicitly authorizing,
approving, or knowingly acquiescing in the unconstitutional conduct
of others"); Angarita v. St. Louis County, 981 F.2d 1537, 1545
(8th Cir. 1992) (policymaker must have "known about and facilitated
the conduct, approved it, condoned it, or turned a blind eye for
fear of what others might see. In other words, he must have acted
either knowingly or with deliberate, reckless indifference")
(citation omitted); Jane Doe "A" v. Special School District, 901
F.2d 642, 646 (8th Cir. 1990) (plaintiff seeking to hold a
municipality liable for inaction must prove "[d]eliberate
indifference to or tacit authorization of such conduct by the
governmental entity's policymaking officials after notice to the
officials of that misconduct"); Lipsett v. University of Puerto
Rico, 864 F.2d 881, 902 (1st Cir. 1988) (supervisors may be held
liable if their failure to act "could be characterized as
supervisory encouragement, condonation, acquiescence or gross
negligence amounting to deliberate indifference") (citation and
quotation marks omitted); Jones v. City of Chicago, 856 F.2d 985,
992-93 (7th Cir. 1988) (defendants "must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye for fear
of what they might see. They must in other words act either
knowingly or with deliberate, reckless indifference"); Moore v.
Winebrenner, 927 F.2d 1312, 1315 (4th Cir.) ("conduct may be
characterized as 'deliberate indifference' or as 'tacit
authorization'"), cert. denied, 112 S. Ct. 97 (1991); Clipper v.
41
Takoma Park, 876 F.2d 17, 20 (4th Cir. 1989) (city's omissions
"actionable only if they constitute 'tacit authorization' or
deliberate indifference to constitutional injuries").
Moreover, the school district itself appeared to equate the
contended-for deliberate indifference instruction with the district
court's formulation in requesting that the jury be asked to
determine "whether there was conscious indifference to the rights
of students to be free from sexual abuse that amounted to
condonation, toleration, or encouragement of sexual abuse by
teachers." (emphasis added). Because both of these instructions
require the jury to find that the policymaker acted with knowledge
of the likely consequences, we do not believe that the district
court's omission would warrant a new trial. Proper instruction
should of course refer to "deliberate indifference," but we are not
prepared to hold on the facts of this case that Judge Bunton's
charge constituted reversible error.
B.
The issue of jury instructions, however, is largely irrelevant
in light of our review of the evidence, for we do not believe that
the record supports a finding that the Board acted with deliberate
indifference in failing to relieve Mares of his teaching duties.
It is of course true that Mares would not have had the opportunity
to assault Jessica had the Board removed him from the classroom
after it learned of Leticia Peña's allegation in 1985. We also
agree, and YISD appears to concede, that the Board's choice to
transfer Mares rather than impose a more severe sanction was not
42
only negligent but also inconsistent with the district's handling
of other cases of suspected sexual abuse. But these facts, by
themselves, are not sufficient to establish that the Board was
deliberately indifferent to the welfare of students in making its
decision.
The Board did not ignore or turn a blind eye to the Peñas'
complaint when it came to its attention. Instead, it immediately
asked the district's superintendent and his deputy personally to
investigate the incident and prepare a recommendation. The report
Board members received found that the evidence was not strong
enough to justify termination proceedings, but recommended that
Mares be issued an official reprimand and a transfer out of
Ascarate Elementary School. The Board's adoption of these
precautions reflect not indifference or apathy, but concern.
Rhyne, 973 F.2d at 393.
Nor can we understand how the inadequacy of these disciplinary
measures could have been "obvious," see Canton, 109 S. Ct. at 1205,
to the Board at the time of its decision. Board members were aware
that two accusations, separated by four years, had been lodged
against Mares. These allegations, while certainly a cause for
concern, did not compare in gravity to Mares' conduct in 1987, and
thus provided no grounds for suspecting that he might be capable of
such a vile act. Moreover, the deputy superintendent, on whose
factual findings the Board was surely entitled to rely, stated that
he had virtually no proof that Mares touched Leticia Peña in the
manner she initially reported. To hold that these facts support a
43
finding that the Board was "deliberately indifferent" would drain
the term of its meaning. While sympathy for Jessica and her
parents and anger toward those whose acts contributed to this
tragic occurrence are understandable, our precedents do not permit
us to hold the school district responsible for this harm.
V.
For the foregoing reasons, we REVERSE and RENDER judgment in
favor of the Ysleta Independent School District.
44