Jane Doe v. Edgewood Indep School District ( 2020 )

Case: 19-50737 Document: 00515477382 Page: 1 Date Filed: 07/06/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 6, 2020
No. 19-50737 Lyle W. Cayce
Clerk
JANE DOE, now known as M.E.,
Plaintiff–Appellant,
v.
EDGEWOOD INDEPENDENT SCHOOL DISTRICT,
Defendant–Appellee.
Appeal from the United States District Court
for the Western District of Texas
Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit
Judges.
DON R. WILLETT, Circuit Judge:
Under the Supreme Court’s decision in Gebser v. Lago Vista Independent
School District, a school district is not liable under Title IX for teacher-on-
student harassment unless the district, among other things, had “actual
notice” of the misconduct and was “deliberately indifferent” to it.1 As for actual
notice, it is not enough the misconduct is reported to any employee. The
reported-to employee must “at a minimum ha[ve] authority to institute
1 524 U.S. 274, 277 (1998).
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corrective measures on the district’s behalf.”2 As for deliberate indifference, it
is a “high bar”—“neither negligence nor mere unreasonableness is enough.”3
This tragic case concerns a high school student who endured two years
of repeated, and repulsive, employee-on-student misconduct. Worse, Doe was
abused by two school employees, a school peace officer and a teacher, both of
whom were later criminally prosecuted. Student-plaintiff Jane Doe asserted
Title IX and constitutional claims, but the district court, applying settled
precedent, granted summary judgment to the school district. Having carefully
reviewed the record in light of the parties’ extensive briefs, oral argument, and
governing law, we affirm.
I. BACKGROUND
A. Factual Background
In 2012, Doe enrolled as a freshman at Memorial High School, part of
Edgewood Independent School District. Soon after, Manuel Hernandez—one
of Memorial’s two peace officers—began sexually harassing Doe.4 Specifically,
Hernandez detained Doe in his on-campus office, professed his feelings for her,
and touched and groped her. The following year, Marcus Revilla—Doe’s
chemistry teacher—also began sexually harassing her. The misconduct
escalated, and Doe became pregnant with Revilla’s child in December 2013 or
January 2014. The record indicates that Hernandez discovered this abuse but
did nothing to report or stop it. Instead, Hernandez leveraged his knowledge
of Revilla’s abuse to coerce Doe into sexual acts with him too.
2 Id. at 277.
3 Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir.
2011) (citing Davis ex rel. Lashonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642, 648
(1999)).
4This opinion uses the phrase “sexual harassment” as an umbrella term that may or
may not include sexual assault.
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This abuse of Doe continued until March 2014, when both Revilla and
Hernandez were arrested. Hernandez was found guilty of sexual assault of a
child. And Revilla pleaded guilty to state and federal charges related to his
relationship with Doe and possession of obscene material.
B. Current Lawsuit
Doe sued EISD5 under Title IX of the Education Amendments of 1972
and 42 U.S.C. § 1983, alleging that Hernandez and Revilla sexually abused her
while she was a student at Memorial and that EISD responded with deliberate
indifference to this known abuse. Doe alleges that, while she was being
sexually harassed and abused, school personnel received several reports, but
EISD employees failed to respond adequately.
After multiple amended complaints and dismissal of some claims and
parties, EISD moved for summary judgment on the remaining claims—a Title
IX sexual harassment claim and § 1983 substantive due process claims based
on (1) failure to train school district employees regarding sexual harassment
or abuse, (2) insufficient sexual harassment and child abuse policies, and (3)
insufficient employee hiring policies and practices.
Regarding EISD’s hiring policies and practices, Doe argues that their
inadequacy resulted in the hiring of Hernandez despite the obvious risk he
posed to students like Doe. In particular, the record shows that Hernandez,
while serving the San Antonio Police Department in 1983, was arrested for
“official oppression” of a minor he had arrested.6 The SAPD suspended him
5Doe originally sued EISD, EISD’s police department, EISD’s Memorial High School,
and former EISD employees Revilla and Hernandez. Doe dismissed Revilla and Hernandez.
And the district court dismissed all claims against EISD’s police department and Memorial
High School, leaving EISD as the sole defendant. Doe did not challenge these dismissals on
appeal.
6 “Official oppression” covers a broad array of conduct. See TEX. PENAL CODE § 39.03
(“(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure,
3
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after determining that he violated department regulations by sexually
assaulting the minor. But Hernandez was ultimately found not guilty of the
criminal charge. The record also shows that Hernandez has been arrested on
another, unrelated occasion. Plus, the record indicates that after twenty-two
years at SAPD, Hernandez worked for the University of the Incarnate Word
and Texas State University Police Departments, where he caused concern
and/or was disciplined for sexual harassment or advances on a colleague,
though there’s no evidence that EISD was aware of these concerns.
The district court granted summary judgment for EISD on the Title IX
claim7 and the § 1983 failure-to-train and sexual-harassment-policy claims.
But the district court denied summary judgment on Doe’s § 1983 claim based
on EISD’s hiring of Hernandez. EISD filed a motion for reconsideration,
arguing that Doe had failed to establish a genuine dispute of material fact as
to municipal liability. The district court reversed course and agreed with EISD,
issuing a final judgment on all claims, including the hiring claim. Doe timely
appealed.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment,
applying the same standard as the district court8 and viewing the evidence “in
the light most favorable to the non-moving party.”9 Summary judgment must
dispossession, assessment, or lien that he knows is unlawful; (2) intentionally denies or
impedes another in the exercise or enjoyment of any right, privilege, power, or immunity,
knowing his conduct is unlawful; or (3) intentionally subjects another to sexual
harassment.”).
7 When granting summary judgment for the Title IX claim, the district court gave Doe
thirty days for additional discovery to obtain admissible evidence showing a genuine factual
dispute as to the timing of alleged “notice” of sexual harassment and to move for
reconsideration of summary judgment, but Doe did not do so.
8 Hagen v. Aetna Ins. Co., 808 F.3d 1022, 1026 (5th Cir. 2015).
9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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be granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”10 A
genuine dispute of material fact exists if a reasonable jury could enter a verdict
for the non-moving party.11 And in Title IX cases, the Supreme Court has
expressly noted the appropriateness of pretrial dismissal in certain cases:
“there is no reason why courts, on a motion . . . for summary judgment, . . .
could not identify a response as not ‘clearly unreasonable’ as a matter of law.”12
III. DISCUSSION
A. Employee-on-student sexual harassment claims under Title IX
Title IX states that no person “shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subject to discrimination under
any program or activity receiving Federal financial assistance.”13 Passed under
Congress’s Spending Clause authority,14 Title IX is contractual in nature, not
banning discrimination outright but “conditioning an offer of federal funding
on a promise by the recipient not to discriminate.”15 Put simply, there are
strings attached. And if a school that receives federal funding violates the “no
sex discrimination” condition, it may be held liable for money damages.16
The Supreme Court in Gebser defined the contours of Title IX liability.
And it did so carefully, given the statute’s contractual framework. Essentially,
10 FED. R. CIV. P. 56(a); see also Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir.
2006).
11 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
12 Davis, 526 U.S. at 649; see also Sanches, 647 F.3d at 168 (citation omitted).
13 20 U.S.C. § 1681(a).
14 U.S. CONST., Art. I, § 8, cl. 1.
15 Gebser, 524 U.S. at 286.
See Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 74, 76 (1992); see also Davis,
16
526 U.S. at 642 (noting that a plaintiff may obtain damages “where the funding recipient
engages in intentional conduct that violates the clear terms of the statute”).
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schools are liable only for intentional sex discrimination.17 And while Title IX
covers “diverse forms” of such of discrimination18—including the despicable
conduct that occurred here—it is not easy to prove an intentional violation of
Title IX. Boiled down, Title IX requires actual notice to an “appropriate person”
and “an opportunity for voluntary compliance.”19
First, “actual knowledge.” Under Gebser, a school district cannot be liable
in damages for a teacher’s sexual harassment of a student unless “an official
[with] authority to address the alleged discrimination and to institute
corrective measures . . . has actual knowledge of discrimination . . . and fails
adequately to respond.”20 And for the district to have knowledge, it is not
enough that any employee knew of the harassment; it must be someone
authorized to rectify it.21
Second, “deliberate indifference.” Even if the school district knew about
employee-on-student misconduct, the district cannot be liable unless its
response amounted to “deliberate indifference.”22 And as we have observed,
“[t]he deliberate indifference standard is a high one.”23 For example, liability
does not attach where the official with authority to take corrective action
17Gebser, 524 U.S. at 290; Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993)
(concluding that a showing of intentional discrimination is required for recovery under Title
IX).
18Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005). Importantly, the
Supreme Court has explicitly recognized that “sexual harassment can constitute
discrimination on the basis of sex under Title IX.” Gebser, 524 U.S. at 283 (citing Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998)).
19 See Gebser, 524 U.S. at 275, 288, 290; see also 20 U.S.C. § 1682.
20 524 U.S. at 290.
21 Id.
22 Id.
Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000) (quotation
23
marks and citation omitted).
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responds reasonably to a risk of harm, “even if the harm ultimately was not
averted.”24
Doe falters out of the gate. She cannot show that a district official with
the power to take corrective action had actual knowledge of the harassment.25
1. Officer Hernandez is not an “appropriate person” for purposes
of Title IX.
As for Doe’s Title IX claim, the chief issue on appeal relates to the actual-
knowledge requirement. EISD doesn’t contest that Hernandez (the peace
officer) knew that Revilla (the teacher) was abusing Doe. Nor does EISD
contest that Hernandez responded with deliberate indifference. But it is a
district’s own misconduct—not the actions of its students, rank-and-file
employees, or other third parties—that exposes it to liability under Title IX.26
Doe must first prove that an official with authority to take corrective action on
behalf of EISD had actual knowledge of the harassment. Gebser refers to such
an official as an “appropriate person,”27 and that’s issue one: whether
Hernandez constitutes an “appropriate person.”
Doe argues that Hernandez was an “appropriate person” because (1)
EISD’s peace officers had authority to monitor the criminality of all EISD
personnel, so Hernandez supervised Revilla, and (2) Hernandez had authority
to arrest Revilla, so he had authority to institute corrective measures on the
district’s behalf. This reasoning is unpersuasive.
First, the power to enforce the law does not automatically make
Hernandez Revilla’s “supervisor.” Under Doe’s logic, Hernandez would be the
supervisor of every EISD employee—including the superintendent. Plus, in the
24 Id.
25 Gebser, 524 U.S. at 290.
26 See id.; Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir. 1997).
27 Gebser, 524 U.S. at 290.
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employment-discrimination context, the Supreme Court has defined a
“supervisor” as someone the employer has authorized to take “tangible
employment actions”—“i.e., to effect a significant change in employment
status, such as hiring, firing, failing to promote, [or] reassignment.”28
Hernandez had no power to do any such thing. In fact, under Texas law,
Hernandez cannot hire or fire employees.29 Bottom line: Hernandez was not
Revilla’s “supervisor.”
Second, arresting Revilla is not the equivalent of instituting corrective
measures on behalf of EISD. Determining whether someone is an official with
authority to institute corrective measures is a fact-specific inquiry.30 To begin
with, the State—not EISD—empowered Hernandez to arrest, and any arrest
he made would be on the State’s behalf.31 So arresting someone could not be a
28 Vance v. Ball State Univ., 570 U.S. 421, 431 (2013). Although the Supreme Court
provided this definition in the vicarious liability employment discrimination context, and
there is no vicarious liability here, the definition is persuasive.
29TEX. EDUC. CODE § 11.1511(b)(7) (requiring the school board to make termination
decisions for any contract employees); id. § 21.002 (requiring school districts to employ each
classroom teacher, principal, librarian, nurse, or school counselor under a contract).
30 See Rosa H., 106 F.3d at 660 (“We do not wish to restrict the applicability of our
analysis by keying liability to certain job titles within the school system.”); see also Doe v.
Sch. Bd. of Broward Cty., 604 F.3d 1248, 1256 (11th Cir. 2010) (‘‘[W]e also note that the
ultimate question of who is an appropriate person is ‘necessarily a fact-based inquiry’ because
‘officials’ roles vary among school districts.’’’) (quoting Murrell v. Sch. Dist. No. 1, Denver, 186
F.3d 1238, 1247 (10th Cir. 1999)).
Because it’s a fact-based inquiry, Doe argues that the district court erred in
determining that Hernandez was not an “appropriate person”; rather, she argues, it’s a
question of fact for the jury. But this argument is unavailing because it conflates a fact-based
inquiry with a question of fact. Summary judgment is appropriate if no genuine dispute of
material fact exists and the moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56.
31 See TEX. CODE CRIM. PROC. art. 14.02 (establishing under what circumstances a
peace officer can arrest someone without a warrant); id. art. 15.17 (explaining duties of officer
arresting individual pursuant to a warrant).
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corrective action on behalf of the school district, as Gebser requires.32 And this
requirement underscores the ultimate purpose of the “appropriate person”
inquiry: to determine whether Hernandez’s knowledge of Revilla’s sexual
abuse “is functionally equivalent to the school district’s actual knowledge.”33
As we have explained, to be an “appropriate person” under Title IX, the
official must have authority to both “repudiate th[e] conduct and eliminate the
hostile environment.”34 The power to arrest someone is not the same as the
ability to eliminate a hostile environment. For example, even if Hernandez had
arrested Revilla for abusing Doe, Revilla may have been released or posted
bail. In that case, Revilla could have returned to work at Memorial unless a
different EISD official—an actual “supervisor”—suspended or terminated him.
And myriad courts have recognized that the power to institute corrective
measures must include the power to terminate or discipline.35 As discussed,
32 See 524 U.S. at 290.
33 Rosa H., 106 F.3d at 660; see also Baynard v. Malone, 268 F.3d 228, 238–39 (4th
Cir. 2001) (citing Rosa H., 106 F.3d at 660) (explaining the “appropriate person” inquiry
should elucidate “whether a supervisory employee may be viewed as the proxy of the school
district”); Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir. 1999) (concluding that an
“appropriate person” for purposes of Title IX liability is a “supervisor with authority to take
corrective action” who is “a school official high enough up the chain-of-command that his acts
constitute an official decision by the school district itself not to remedy the misconduct.”).
34 Rosa H., 106 F.3d at 661 (emphasis in Rosa H.) (quoting Nash v. Electrospace Sys.,
Inc., 9 F.3d 401, 404 (5th Cir. 1993) (per curiam)).
35 See, e.g., Blue v. D.C., 850 F. Supp. 2d 16, 34–35 (D.D.C. 2012), aff’d, 811 F.3d 14
(D.C. Cir. 2015) (“[I]n the context of student-teacher sexual harassment, the ‘authority to
take corrective action’ means the ability to fire or discipline the teacher in question.”); Sh. A.
ex rel. v. Tucumcari Mun. Sch., No. CV 00-727 JP/DJS-ACE, 2002 WL 35650031, at *7
(D.N.M. Apr. 19, 2002) (finding that an employee with authority to make recommendations
to the board “regarding the hiring, terminating, suspending, and transferring of teachers”
was an appropriate person, but an employee without that authority was not); Nelson v.
Lancaster Indep. Sch. Dist. No. 356, No. CIV 00-2079 (JRT/RLE), 2002 WL 246755, at *5 (D.
Minn. Feb. 15, 2002) (explaining that, “[i]n cases since Gebser, courts have strictly
interpreted this element, requiring that the official in question be capable of terminating or
suspending the individual,” and concluding that a teacher was not an appropriate person to
receive actual notice of school bus driver’s alleged harassment of student).
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Hernandez had no such power.36 Nor did Hernandez have the power to
reformulate district sexual harassment policies or publicly “repudiate th[e]
conduct.”37
Plus, though Hernandez had the duty and authority to take action to
stop crimes occurring on campus, such a duty is imposed—at least in some
form (for example, reporting obligations)—on the vast majority of school
employees.38 So, as the district court noted, “extending ‘appropriate persons’
under Title IX to include any individual who is authorized and/or instructed to
take any action to halt abuse from a law enforcement perspective or otherwise
would result in nearly every district employee being covered by the analysis.”
36 And “[t]o the extent that [district] policy indicates that campus-security officers
would begin the [district’s] ‘corrective processes,’ that fact would not justify treating the
officers as appropriate persons for purposes of Title IX.” Ross v. Univ. of Tulsa, 859 F.3d 1280,
1291−92 (10th Cir. 2017) (emphasis added).
37 See Rosa H., 106 F.3d at 661; see also, e.g., Joyce v. Wright St. Univ., No. 3:17-CV-
387, 2018 WL 3009105, at *9 (S.D. Ohio June 15, 2018) (“[A]lthough a campus police officer
is, in one sense, empowered to take ‘corrective action’ with respect to a sexual assault, he or
she has no authority to reformulate sexual harassment policies on behalf of the university to
end discrimination on campus. Accordingly, notice to a campus police officer does not
constitute ‘actual notice’ for purposes of Title IX.”); Ross v. Corp. of Mercer Univ., 506 F. Supp.
2d 1325, 1352 n.43 (M.D. Ga. 2007) (“While a campus police officer is certainly empowered to
halt a sexual assault that occurred immediately in front of him, he does not have the power
or responsibility to reformulate University sexual harassment policy. Therefore, the Court
concludes that if the only person who had knowledge of this attack was a Mercer police officer,
that is insufficient to give the University actual notice of the alleged attack.”).
38 But the ability or obligation to report sexual harassment does not qualify an
employee as having the ability to institute corrective measures on behalf of the funding
recipient. See Plamp v. Mitchell Sch. Dist. No. 17–2, 565 F.3d 450, 459 (8th Cir. 2009) (‘‘After
all, each teacher, counselor, administrator, and support-staffer in a school building has the
authority, if not the duty, to report to the school administration or school board potentially
discriminatory conduct. But that authority does not amount to an authority to take a
corrective measure or institute remedial action within the meaning of Title IX. Such a holding
would run contrary to the purposes of the statute.’’); see also Santiago v. Puerto Rico, 655
F.3d 61, 75 (1st Cir. 2011) (‘‘The empty allegation that a school employee ‘failed to report’
harassment to someone higher up in the chain of command who could have taken corrective
action is not enough to establish institutional liability. Title IX does not sweep so broadly as
to permit a suit for harm-inducing conduct that was not brought to the attention of someone
with the authority to stop it.’’) (citation omitted).
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And this result is incompatible with Title IX’s existing liability framework.
Indeed, we have long held that, generally, the “bulk of employees” are not
covered for purposes of a district’s “notice” under Title IX.39
As the district court explained, EISD peace officers are generally “like
the vast majority of other school employees, in the sense that (1) they have no
discretionary authority with respect to the district’s sexual harassment
policies designed to end discrimination on campus, and (2) their day-to-day
actions do not generally constitute ‘official decisions’ by the district.” For
example, rank-and-file employees such as peace officers generally cannot bind
the institution. Specifically, under Texas law, Hernandez could not sign a
contract on EISD’s behalf,40 receive or hold real or personal property or funds
on EISD’s behalf,41 or be assigned any administrative tasks.42 And, as
discussed, under Texas law, Hernandez could not hire or fire teachers.43
Recognizing these similarities to other rank-and-file employees, numerous
courts have held that “notice” of sexual harassment or abuse provided only to
a police or security officer is insufficient to impute actual knowledge to the
school district or university for purposes of Title IX.44
39Rosa H., 106 F.3d at 660; see also Corp. of Mercer Univ., 506 F. Supp. 2d at 1352
n.43 (explaining that teachers, coaches, and school employees are not generally “appropriate
individuals” for purposes of notice under Title IX).
40 See TEX. EDUC. CODE § 11.1511(c) (authorizing the board of trustees of a school
district to “enter into contracts as authorized under this code or other law and delegate
contractual authority to the superintendent as appropriate” (emphasis added)).
41 Id. § 11.151(a).
42 Id. § 37.081(d-2).
43 Id. §§ 11.1511(b)(7) (requiring the board to make termination decisions for any
contract employees), 21.002 (requiring school districts to employ each classroom teacher,
principal, librarian, nurse, or school counselor under a contract).
44See Ross, 859 F.3d at 1288−92 (finding that report of sexual assault to university’s
security officer did not constitute “notice” for purposes of Title IX); Joyce v. Wright State
Univ., No. 3:17-CV-387, 2018 WL 3009105, at *9 (S.D. Ohio June 15, 2018) (same, with
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The district court, agreeing with the other courts that have addressed
the issue, held that Hernandez did not fit the category of employee intended to
be an “appropriate person” under Title IX. In particular, the district court
emphasized that Doe presented no evidence that the Board’s “practical control”
over Hernandez was “sufficiently close,” such that his acts “reflect[ed] [EISD’s]
intentional discrimination.”45 We agree.46
Ultimately, Doe’s theory regarding “notice” to Hernandez fails as a
matter of law because he’s not an “appropriate person” for purposes of Title IX.
We thus affirm the district court’s grant of summary judgment on that basis.
2. EISD did not have knowledge of prior acts of sexual
harassment that provided actual knowledge of a risk of
substantial harm under Title IX.
As Doe points out, some courts have interpreted Gebser’s requirement
that an “appropriate person” must have “actual knowledge of discrimination in
respect to report of sexual assault to university police officer); Corp. of Mercer Univ., 506 F.
Supp. 2d at 1352 n.43 (same).
45 See Rosa H., 106 F.3d at 660.
46And even if Hernandez had authority to institute corrective measures, he would not
be an “appropriate person” in this case. See Salazar v. S. San Antonio Indep. Sch. Dist., 953
F.3d 273, 275 (5th Cir. 2017) (“We conclude that the judicially implied private right of action
under Title IX does not impose liability on a school district when the only employee or
representative of the district with actual knowledge of the molestation was the perpetrator
himself, even if the perpetrator had authority to institute corrective measures on behalf of
the district to end discrimination by other individuals or in the school’s programs.”). The
Supreme Court has explained that “[w]here a school district’s liability rests on actual notice
principles, [] the knowledge of the wrongdoer himself is not pertinent to the analysis.” Gebser,
524 U.S. at 291. Doe argued—and the district court agreed—that this rule only applies to the
wrongdoer’s knowledge of his own wrongdoing. Indeed, the facts here do not map perfectly
onto Salazar because there were not one but two employees sexually harassing Doe. But
Hernandez could not be expected to arrest Revilla or report Revilla’s sexual misconduct with
Doe because Hernandez would have feared that doing so would lead to discovery of his own
misconduct with the same student. So notice to Hernandez under these circumstances is not
meaningful notice to EISD such that it had an opportunity to remedy the discrimination,
which is essential for Title IX liability. See Salazar, 953 F.3d at 280 (“[A]t its core, the implied
Title IX remedy that the Supreme Court recognized depends on meaningful notice to a
funding recipient so that it will have an opportunity to remedy the discrimination.”).
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the recipient’s programs”47 to mean that “the Court implicitly decided that
harassment of persons other than the plaintiff may provide the school with the
requisite notice to impose liability under Title IX.”48 Leaning heavily on
Escue,49 a Tenth Circuit case, Doe argues that EISD’s knowledge of (1)
Hernandez’s 1983 arrest for official oppression, and (2) the January 2013
report of a student at Revilla’s home both constitute prior acts of sexual
harassment that gave EISD actual knowledge of a substantial risk of harm
under Title IX. We address each argument in turn.
a. Officer Hernandez’s arrest for “official oppression”
First, Doe argues that the district court “erred because it failed to
consider” EISD’s knowledge of Hernandez’s 1983 arrest for “official
oppression,” which she claims constitutes actual knowledge of a risk of
substantial harm to students like Doe. But Doe did not urge this theory in her
response to EISD’s motion for summary judgment.50 Because Doe failed to
raise this issue before the district court, it is forfeited on appeal.51
b. January 2014 investigation of Revilla
Second, Doe argues that Principal Rodriguez had actual knowledge
stemming from an investigation into and suspension of Revilla about two
months prior to his ultimate arrest. The record shows that, in January 2014,
EISD received a report from Revilla’s ex-girlfriend that a male student had
47 Gebser, 524 U.S. at 290 (emphasis added).
48 Escue v. N. Okla. Coll., 450 F.3d 1146, 1153 (10th Cir. 2006).
49 See id.
50 Nor did Doe allege in her Second Amended Complaint that any EISD employee had
actual notice of Hernandez’s 1983 arrest for official oppression and responded with deliberate
indifference by hiring him in 2012. In fact, Doe failed to raise any Title IX claims premised
on Hernandez’s 1983 arrest or on the hiring of Hernandez.
51See Tex. Commercial Energy v. TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir. 2005);
Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004).
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been dropped off at Revilla’s residence. EISD suspended Revilla while it
investigated the report. The investigation revealed that the student’s parent
gave him permission to go to—and dropped him off at—Revilla’s home to work
on a project for a school pep rally, which Revilla supervised. As such, the
investigation was inconclusive, and EISD reinstated Revilla. The district court
concluded that “the January 2014 incident is not the type that would place
[EISD] on notice that Revilla was engaged in sexual relations with students,
and certainly not with respect to [Doe].” So it determined that the January
2014 incident did not provide EISD with notice for purposes of Revilla’s abuse
of Doe. We agree.
In Gebser, the Supreme Court stated that one report of a teacher making
inappropriate comments “was plainly insufficient to alert the principal to the
possibility that [the teacher] was involved in a sexual relationship with a
student.”52 Likewise, one report that a male student came to Revilla’s home
was insufficient to alert EISD that Revilla was in a sexual relationship with a
female student.53 In fact, the January 2014 report had nothing to do with Doe—
or any female student—and there was no evidence of sexual misconduct.
Rather, the male student involved had parental permission and was engaged
in a school-related project. This investigation did not yield information
suggesting Revilla posed a substantial risk of sexual abuse. At bottom, Doe’s
argument is constructive notice by another name.54 And the Supreme Court
52 Gebser, 524 U.S. at 291.
53 See Escue, 450 F.3d at 1154 (finding that the school lacked actual knowledge that a
professor posed a substantial risk of sexually harassing students despite knowing that the
professor had consensually dated two former students near his age and was accused a decade
prior of a single incident of inappropriate touching and name-calling, which he acknowledged
should stop).
54Although Doe invokes the actual knowledge standard, she’s really implying that,
because Revilla had—in her words—an “under-aged homosexual male . . . at his home after
school hours,” EISD should have known that he posed a substantial risk of sexual abuse.
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has clearly rejected that standard in favor of actual notice.55 So we agree with
the district court on this issue.56
B. EISD does not have “municipal liability” under § 1983.
1. EISD’s Hiring Policies
Finally, Doe advances multiple theories as to why EISD has “municipal
liability” pursuant to 42 U.S.C. § 1983. First, Doe argues that EISD has
municipal liability because its hiring policy lacked specific requirements about
how to analyze an applicant’s arrest record, which “constrained” hiring
officials.
Under Monell v. Department of Social Services of City of New York57 and
its progeny, a claim of “municipal liability under Section 1983 requires proof of
three elements: a policymaker; an official policy; and a violation of
constitutional rights whose ‘moving force’ is the policy or custom.”58 “The
‘official policy’ requirement was intended to distinguish acts of the
municipality from acts of employees of the municipality, and thereby make
clear that municipal liability is limited to action for which the municipality is
actually responsible.”59 To that end, § 1983, like Title IX, does not impose
55 See Gebser, 524 U.S. at 290.
56 Without alleging facts demonstrating actual notice of a substantial risk of sexual
harassment, Doe criticizes EISD’s investigation into the January 2014 report, arguing that
its “inconclusive[ness]” and lack of written findings indicate that EISD’s response was
unreasonable. Essentially, Doe argues that EISD should not have allowed Revilla to return
to the classroom. But even if EISD had made “a tragic error in judgment,” that “does not
create a genuine issue of material fact as to whether [an official] acted with deliberate
indifference.” Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). And
“Title IX does not require flawless investigations or perfect solutions.” Sanches v. Carrollton-
Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 170 (5th Cir. 2011).
57 436 U.S. 658 (1978).
58Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436
U.S. at 694).
59 Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986).
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liability on school districts for an employee’s tort under a respondeat superior
liability theory—but only for “their own illegal acts.”60 So to prevail against a
public school district, a plaintiff must show that the district’s final policymaker
acted with deliberate indifference in maintaining an unconstitutional policy
that caused the plaintiff’s injury.61
First, EISD’s Board of Trustees is the final policymaker in this case.
“[W]hether an official had final policymaking authority is a question of state
law.”62 And “Texas law is clear that final policymaking authority in an
independent school district . . . rests with the district’s board of trustees.”63
Next, we look to whether the Board had an official policy for screening
applicants and hiring employees when Hernandez was hired in June 2012.64
Indeed, the Board had such an official policy. It included DAC (Local), which
established objective hiring criteria, and DBAA (Legal), which described
employment restrictions and requirements, such as obtaining criminal history
records and fingerprints of employees.65
Finally, Doe must prove that this official policy was the “moving force”
behind the violation of her constitutional rights.66 Here, there’s no dispute that
Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997) (quoting
60
Pembaur, 475 U.S. at 479); see also Monell, 436 U.S. at 691.
61 Brown, 520 U.S. at 400, 403 (citing Monell, 436 U.S. at 694).
62 Pembaur, 475 U.S. at 483.
Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993) (citing TEX. EDUC.
63
CODE § 23.01 (recodified at TEX. EDUC. CODE § 11.051)); see also TEX. EDUC. CODE § 11.151.
64 An official policy is “[a] policy statement, ordinance, regulation, or decision that is
officially adopted and promulgated by the [government entity] or by an official to whom the
[entity] ha[s] delegated policy-making authority.” Leal v. Wiles, 734 F. App’x 905, 907 (5th
Cir. 2018) (per curiam) (unpublished) (alterations in original) (quoting Bennett v. City of
Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (per curiam)).
The Board adopted both documents on May 15, 2012, about a month before
65
Hernandez was hired.
66 Monell, 436 U.S. at 694.
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the sexual abuse Hernandez perpetrated on Doe violated her constitutional
rights.67 But this third element—causation—proves fatal to Doe’s argument.
EISD’s hiring policy was not the “moving force” behind Hernandez’s
unconstitutional actions.
“Moving force” causation is more than “but for” causation.68 Doe must
show that the final policymaker had the requisite degree of culpability and that
EISD’s policies were the actual cause of the constitutional violation.69 She has
not. When it comes to the “moving force” behind the sexual abuse of Doe, we
agree with the district court that Hernandez’s misconduct was the actual cause
of the violation. Arguably, the hiring administrator’s choice to hire Hernandez
without further investigation of his employment and criminal history was
negligent. But EISD cannot be held liable for an employee’s negligence under
a respondeat superior theory.70
2. Hiring of Officer Hernandez
Doe also argues that the hiring administrator’s decision to hire
Hernandez constitutes a district policy that triggers municipal liability under
§ 1983. The district court disagreed. And so do we.
True, we have recognized that “a single decision by a policymaker may,
under certain circumstances, constitute a policy for which [a municipality] may
67 We have held that “[t]he right to be free of state-occasioned damage to a person’s
bodily integrity is protected by the fourteenth amendment guarantee of due process.” Doe v.
Taylor Indep. Sch. Dist., 15 F.3d 443, 450−51 (5th Cir. 1994) (quotation marks and citation
omitted). And “[i]t is incontrovertible that bodily integrity is necessarily violated when a state
actor sexually abuses a schoolchild.” Id. at 451.
68 Valle v. City of Houston, 613 F.3d 536, 546 (5th Cir. 2010).
69 See id.
70Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (explaining
that § 1983 “[m]unicipal liability cannot be sustained under a theory of respondeat
superior”) (citation omitted).
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be liable.”71 But a plaintiff who brings a claim pursuant to this “extremely
narrow” “single incident exception”72 must show (1) the hiring decision was
made by a final policymaker, and (2) a “plainly obvious consequence of the
decision” is a constitutional violation.73
As for the first prong—the hiring decision must be made by a final
policymaker—it’s critical to distinguish between “an exercise of policymaking
authority and an exercise of delegated discretionary policy-implementing
authority.”74 The former can trigger § 1983 municipal liability; the latter
cannot. Here, a hiring administrator screened Hernandez’s application and
decided to hire him. Unlike the Board, this administrator is not a final
policymaker;75 rather, he or she has only been delegated discretionary policy-
implementing authority. By limiting the single decisions that trigger
municipal liability to those made by final policymakers, we avoid imposing
respondeat superior liability, which the Supreme Court has rejected in the
§ 1983 context.76 That should be the end of the inquiry: The “single decision
exception” does not apply.
But even assuming that Doe satisfied the first requirement, she fails on
the second. Specifically, a plaintiff must show deliberate indifference—that a
71 Brown v. Bryan County, 219 F.3d 450, 462 (5th Cir. 2000).
72Valle, 613 F.3d at 542 (explaining that “this ‘single incident exception’ is extremely
narrow”).
73Brown, 520 U.S. at 411; Livezey v. City of Malakoff, 657 F. App’x 274, 277 (5th Cir.
2016) (per curiam) (unpublished).
74Brown, 520 U.S. at 434 (emphasis in original); see also Bolton v. City of Dallas, 541
F.3d 545, 548−49 (5th Cir. 2008).
75 See Jett, 7 F.3d at 1245; see also TEX. EDUC. CODE §§ 11.051, 11.151.
76Brown, 520 U.S. at 405; see also Triplett v. D.C., 108 F.3d 1450, 1453 (D.C. Cir.
1997) (“The only acts that count (though they may include inaction giving rise to or endorsing
a custom) are ones by a person or persons who have ‘final policymaking authority [under]
state law.’”) (quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)); Blue, 850 F.
Supp. 2d at 27.
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constitutional violation is a plainly obvious consequence of the final
policymaker’s decision.77 To do so, Doe must provide evidence to show “a strong
connection between the background of [Hernandez] and the specific violation
alleged,” such that he “was highly likely to inflict the particular type of injury
suffered.”78 Doe has failed to meet this burden.
Consider the information the hiring administrator had in June 2012.
Hernandez was arrested for official oppression in 1983, acquitted the following
year, rehired by the City of San Antonio Police Department, and then served
over twenty-seven years in law enforcement and became a master peace officer
prior to applying to EISD. Hernandez’s criminal record didn’t provide any
detail about the alleged conduct underlying his 1983 arrest. Hernandez
provided two of three requested references, his immediate past supervisor and
his brother, both of whom responded positively. Are there red flags in his
application? Yes. But that’s not enough to attribute deliberate indifference to
EISD. The information about Hernandez reviewed at the time of hiring simply
does not show the requisite “strong connection” between an arrest in 1983 for
official oppression and sexual abuse thirty years later—especially when viewed
in light of existing caselaw.
Both the Supreme Court and this court have declined to find liability
under § 1983 where a local governmental entity hired an officer with one or
more prior arrests (including those of a sexual nature), the hiring official failed
to investigate the unspecified conduct underlying the arrest(s), and/or the
hiring official failed to follow-up with prior employers from which the applicant
77 Brown, 520 U.S. at 411.
78 Rivera v. Bonner, 952 F.3d 560, 565 (5th Cir. 2017) (quoting Gros v. City of Grand
Prairie, 209 F.3d 431, 434 (5th Cir. 2000)) (quotation marks omitted).
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had been terminated.79 Like the hiring officials in Brown and Rivera, EISD’s
hiring administrator hired someone with an arrest record without seeking
information about the underlying conduct. And like the hiring official in
Hardeman, EISD’s hiring administrator hired someone without contacting the
employer who previously fired him. Arguably, in all these cases, the hiring
official inadequately assessed an application and made a poor hiring decision.
But “[a] showing of simple or even heightened negligence will not suffice.”80
As the Supreme Court has cautioned, “predicting the consequence of a
single hiring decision, even one based on an inadequate assessment of a record,
is far more difficult than predicting what might flow from the failure to train
a single law enforcement officer as to a specific skill necessary to the discharge
of his duties.”81 “Where a claim of municipal liability rests on a single decision
79 For example, in Brown, the Supreme Court held that a sheriff was not deliberately
indifferent in hiring a police officer who allegedly used excessive force during an arrest,
despite having a criminal record indicating he pled guilty to several misdemeanors—assault
and battery, resisting arrest, and public drunkenness—during college. 520 U.S. at 413, 415–
16. Although the sheriff obtained the criminal history report when screening the applicant,
he “did not inquire into the underlying conduct or the disposition of any of the misdemeanor
charges.” Id. at 401, 411. The Court explained that although the sheriff’s screening could be
considered inadequate, the officer’s use of excessive force was not “a plainly obvious
consequence of the hiring decision.” Id. at 411. So, the Court determined that the “link
between the officer’s prior convictions and his use of excessive force was too tenuous to show
that the sheriff had disregarded a known or obvious risk of injury.” Rivera, 952 F.3d at 565
(citing Brown, 520 U.S. at 412, 415).
We have ruled similarly in hiring-focused § 1983 cases involving allegations of sexual
assault. See id. at 564−66 (collecting cases); id. at 566−67 (holding that “a jury could not find
that a plainly obvious consequence of hiring [a jailer] was that he would sexually assault a
detainee”—despite the jailer’s prior arrests for indecency with a child by sexual contact—
where his record provided no detail about his alleged offenses, and there was no evidence of
conviction); Hardeman v. Kerr County, 244 F. App’x 593, 594−96 (5th Cir. 2007) (per curiam)
(unpublished) (finding no constitutional violation where a county hired a jailer after
conducting a background investigation but didn’t contact his previous employer where he had
been fired for “making improper advances towards high school (female) students,” and the
jailer later forcibly raped an inmate).
80 Rivera, 952 F.3d at 565 (quoting Brown, 520 U.S. at 407).
81 Brown, 520 U.S. at 410.
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. . . the danger that a municipality will be held liable without fault is high.”82
So the standard for showing that Doe’s injury was the “plainly obvious
consequence” of the hiring decision is a high bar.83 And under controlling
precedent, Doe cannot scale it. We thus agree with the district court that the
hiring administrator’s decision to hire Hernandez does not trigger municipal
liability.
3. Doe’s Hybrid Theory
Unable to prove municipal liability under either of these theories, Doe
seems to have created a hybrid theory that cherry-picks elements from both.
Basically, she combines the policymaker element from the “official policy”
theory with the causation element from the “single incident” theory. This
approach, though creative, is unavailing.
Doe asserts that EISD omitted a requirement for additional screening,
that this omission led to the hiring administrator being deliberately indifferent
to the consequences of her hiring decision, and that the hiring administrator’s
deliberate indifference was the “moving force” behind her injury. This
attenuated causation argument is problematic for multiple reasons.
For starters, Doe has not shown that EISD’s policies were
unconstitutional or that the omission of any specific guideline about how and
when to use arrest data from a criminal record was so glaring as to make “the
particular injury suffered by [Doe]” a known or obvious consequence of the
Board’s decision to not include such detailed requirements in its policy.84
82 Id. at 408–09 (emphasis added).
83 See Livezey, 657 F. App’x at 277–78 (“We have held that failing to respond to a
history of ‘bad or unwise acts’ that ‘demonstrate lack of judgment, crudity, and, perhaps
illegalities’ is not enough for deliberate indifference.”) (quoting Estate of Davis ex rel. McCully
v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).
84 Bryan County, 219 F.3d at 461.
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Also, although some courts have held a municipality liable for an
omission where its “deliberate indifference led to its omission and . . . the
omission caused the employee to commit the constitutional violation,”85 that’s
not what we have here. Doe’s causation theory is more attenuated and in a
different sequence. And Doe has not shown that, when adopting its hiring
policy, the Board had knowledge of anyone else having been injured by an
EISD employee who had been arrested—but not convicted—of a crime. Nor has
Doe shown a pattern of constitutional violations and a decision by the Board
to continue following “an approach that they know or should know has failed
to prevent” such constitutional violations.86 Doe has fallen short of the
“rigorous standards of culpability and causation” that “must be applied to
ensure that [EISD] is not held liable solely for the actions of its employee.”87
The district court got this right too.
CONCLUSION
Jane Doe endured contemptible misconduct, and we do not minimize the
cruelty of what she suffered. Both her assailants were criminally punished.
But we are bound by on-point precedent, which imposes exacting liability
requirements. On these facts, the district court correctly concluded that EISD
cannot be held liable under Title IX or § 1983 for its employees’ reprehensible
acts. We AFFIRM.
85 Gibson v. County of Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002) (emphasis added)
(citation omitted).
86Brown, 520 U.S. at 407; see also Estate of Novack ex rel. Turbin v. County of Wood,
226 F.3d 525, 531 (7th Cir. 2000) (“In the absence of a series of constitutional violations from
which deliberate indifference can be inferred, the plaintiffs must show that the policy itself
is unconstitutional.”).
87 Brown, 520 U.S. at 405.
22