Kinman v. Omaha Public School District ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1683
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Janet Kinman, *
*
Plaintiff/Appellee, *
*
v. *
*
Omaha Public School District; *
Robert Whitehouse, individually and *
in his official capacity; John Mackiel, *
Ph.D., individually and in his official * Appeals from the United States
capacity, * District Court for the
* District of Nebraska.
Defendants/Appellants, *
*
Sheryl McDougall, individually and *
in her official capacity, *
*
Defendant. *
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No. 98-2018
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Janet Kinman, *
*
Plaintiff/Appellant, *
*
v. *
*
Omaha Public School District, *
*
Defendant, *
*
Robert Whitehouse, individually and *
in his official capacity; John Mackiel, *
Ph.D., individually and in his official *
capacity, *
*
Defendants/Appellees, *
*
Sheryl McDougall, individually and *
in her official capacity, *
*
Defendant. *
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No. 98-2994
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Janet Kinman, *
*
Plaintiff/Appellant, *
*
v. *
*
Omaha Public School District; *
Robert Whitehouse, individually and *
in his official capacity; John Mackiel, *
Ph.D., individually and in his official *
capacity, *
*
Defendants, *
*
Sheryl McDougall, individually and *
in her official capacity, *
*
Defendant/Appellee. *
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Submitted: November 19, 1998
Filed: March 19, 1999
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Before McMILLIAN, WOLLMAN, and HANSEN, Circuit Judges.
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WOLLMAN, Circuit Judge.
The Omaha Public School District (the district), assistant superintendent John
Mackiel, and principal Robert Whitehouse appeal from a jury verdict awarding Janet
Kinman damages on her claim of sexual harassment brought under 20 U.S.C. §
1681(a) (Title IX). Kinman cross-appeals, contending that the district court erred by
failing to grant her motion for default judgment against Sheryl McDougall on
Kinman’s 42 U.S.C. § 1983 claim. We reverse the judgment entered in favor of
Kinman, as well as the denial of the motion for default judgment.
I.
This case is before us a second time. We earlier affirmed the district court’s
grant of summary judgment in favor of the district, Mackiel, and Whitehouse on
Kinman’s section 1983 claim because we found that their conduct did not rise to the
level of deliberate indifference as a matter of law. See Kinman v. Omaha Pub. Sch.
Dist., 94 F.3d 463, 467 (8th Cir. 1996) (Kinman I). We also reversed the district
court’s grant of summary judgment in favor of the district, Mackiel, and Whitehouse
on Kinman’s Title IX claim, holding that questions of fact existed for the jury.
The facts can be summarized as follows. From September 1986 through May
1990, Kinman was a student at Bryan High School in Omaha, Nebraska. During the
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1987-88 school year, McDougall was Kinman’s sophomore English teacher. They
remained friends during the following summer. At some point during that summer,
Kinman attempted suicide. She told her mother that one of the reasons for her
suicide attempt was that McDougall was trying to convince her that she (Kinman)
was gay.
Kinman began drinking during her junior year. In response, McDougall took
her to a lesbian Alcoholics Anonymous meeting. During the summer of 1989,
Kinman and McDougall engaged in sexual relations. The two had an ongoing sexual
relationship following this encounter.
On October 16, 1989, the district, through Whitehouse, was made aware of
allegations of a sexual relationship between Kinman and McDougall. After receiving
this information, the district removed Kinman from McDougall’s study hall. The
sexual relationship between the two temporarily ended following this action.
After Kinman’s graduation in the spring of 1990, she resumed sexual relations
with McDougall. Subsequently, the district was notified that the two had resumed
contact, and it investigated the nature of the ongoing relationship. After the district
confirmed the sexual nature of this relationship, McDougall was terminated for
violating the district’s policy prohibiting teachers from engaging in sexual
relationships with former students within two years of graduation. In addition,
McDougall’s teacher’s license was revoked in 1992.
Kinman brought this action against the district and Mackiel, Whitehouse, and
McDougall individually and in their official capacities1. Following our decision in
1
Suits against school officials in their official capacity are treated as suits
against the school district itself. See Smith v. Metropolitan Sch. Dist. Perry
Township, 128 F.3d 1014, 1021 n.3 (7th Cir. 1997), cert. denied, 118 S. Ct. 2367
(1998) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)).
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Kinman I, a trial was held on the Title IX claim. The district court dismissed the
claims against Mackiel and Whitehouse in their individual capacities, and the jury
returned a verdict in favor of Kinman on the official capacity claim. The district court
denied the defendants’ post-trial motions, and this appeal followed.
II.
In Kinman I, we held that the appropriate standard for school district liability
in a Title IX action was whether it knew or should have known of the harassing
behavior. See 94 F.3d at 469. While the present appeal was pending, the Supreme
Court ruled upon the standard of school district liability discussed in Kinman I. See
Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989 (1998). The Court noted that
the express remedial scheme of Title IX is predicated upon notice to an “appropriate
person” and an opportunity to rectify any violation. See id. at 1999 (citing 20 U.S.C.
§ 1682). “[I]t would frustrate the purposes of Title IX to permit a damages remedy
against a school district for a teacher’s sexual harassment of a student based on
principles of respondeat superior or constructive notice, i.e., without actual notice to
a school district official.” Id. at 1997. The fact that a teacher had actual notice as a
wrongdoer is not pertinent to the analysis of notice to the school district. See id. at
2000. Accordingly, the Court held that a plaintiff in a Title IX case may not recover
against a school district without first showing that a district official with the authority
to address the complained-of conduct and take corrective action had actual notice of
the harassing behavior and failed adequately to respond. See id. at 1999.
Once actual notice of discriminatory behavior is shown, the liability of the
school district must be predicated on an official decision not to remedy the violation.
See id. The Court explained that a heightened standard of liability was necessary to
protect a school district from liability from its employees’ independent actions. Thus,
it held that to support liability under Title IX, the school district’s response to
harassing behavior “must amount to deliberate indifference to discrimination.” Id.
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Under the law of the case doctrine, “when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the
same case.” Morris v. American Nat’l Can Corp., 988 F.2d 50, 52 (8th Cir. 1993)
(quoting Arizona v. California, 460 U.S. 605, 618 (1983)). This doctrine does not
apply, however, “when an intervening decision from a superior tribunal clearly
demonstrates the law of the case is wrong.” Morris, 988 F.2d at 52. Thus, we must
apply the actual knowledge and deliberate indifference standard articulated in Gebser.
In light of Gebser, we are compelled to reverse the judgment, for in Kinman I
we held that the district’s response upon being put on notice of McDougall’s conduct
could not be characterized as constituting deliberate indifference. See 94 F.3d at 467.
We found that once Mackiel and Whitehouse were alerted to the possibility of a
sexual relationship between Kinman and McDougall, they did not “turn a blind eye
and do nothing.” Id. at 467. Instead, they investigated those allegations and initiated
termination proceedings once they obtained conclusive proof of that relationship.
Accordingly, the district, Mackiel, and Whitehouse are entitled to judgment as a
matter of law.
III.
In addition to the claims brought against the district, Mackiel, and Whitehouse,
Kinman brought an action against McDougall individually under section 1983 and
Title IX. McDougall failed to appear at any stage of the proceedings. The district
court entered default judgment against her on November 4, 1993. It vacated that
default judgment, however, on November 10, 1993, stating that default judgment was
inappropriate until the case was adjudicated as to all defendants.
Kinman’s end-of-trial motion for default judgment against McDougall was
denied by the district court. Following the entry of the order denying the other
defendants’ post-trial motions, Kinman renewed her motion for entry of default
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judgment against McDougall. The district court denied the motion as moot, stating
that “[j]udgment has already been entered by the court against Sheryl McDougall in
her official capacity,” and that “liability does not lie under Title IX against persons
in their individual capacity.” See Order of July 1, 1998 at 1.
Kinman argues that default judgment could be entered against McDougall
under section 1983 based on a violation of Title IX. We disagree. Title IX operates
to condition “an offer of federal funding on a promise by the recipient not to
discriminate, in what amounts essentially to a contract between the Government and
the recipient of funds.” Gebser, 118 S. Ct. at 1997. “The fact that title IX was
enacted pursuant to Congress’s spending power is evidence that it prohibits
discriminatory acts only by grant recipients.” Rowinsky v. Bryan Indep. Sch. Dist.,
80 F.3d 1006, 1012 (5th Cir.), cert. denied, 117 S. Ct. 165 (1996). Several circuits
have held that because they are not grant recipients, school officials may not be sued
in their individual capacity under Title IX. See Floyd v. Waiters, 133 F.3d 786, 789
(11th Cir.), vacated and remanded, 119 S. Ct. 33 (1998); Smith, 128 F.3d at 1019;
Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir. 1988); see also
Lilliard v. Shelby County Bd. of Educ., 76 F.3d 716, 730 (6th Cir. 1996) (Nelson, J.,
concurring) (stating that only educational institutions may be found liable for Title
IX violations). See also National Collegiate Athletic Ass’n v. Smith, 1999 WL 83907
(U.S.) (February 23, 1999) (receipt of dues from member colleges and universities
does not subject NCAA to suit under Title IX). Agreeing with these holdings, we
conclude that Title IX will not support an action against McDougall in her individual
capacity.
In addition to her Title IX complaint, however, Kinman also alleged violations
of the Fourteenth Amendment as a basis for her section 1983 claim against
McDougall in her individual capacity. In Kinman I, we dismissed the section 1983
claims against the district, Mackiel, and Whitehouse. See 94 F.3d at 467. Nothing
in our decision in Kinman I, however, affects Kinman’s ability to bring a section
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1983 action against McDougall individually. Likewise, Gebser does not bar such an
action, for the Court made it clear that that decision has no effect on an individual-
capacity suit against a teacher brought under state law or under section 1983. See
Gebser, 118 S. Ct. at 2000.
To hold McDougall liable under section 1983, Kinman must show that the
conduct complained of was performed under color of state law and that the conduct
deprived her of rights, privileges, or immunities secured by the Constitution or
Federal law. See Roe v. Humke, 128 F.3d 1213, 1215 (8th Cir. 1997); Lipsett v.
University of Puerto Rico, 864 F.2d at 902. Kinman alleged that McDougall deprived
her of “her constitutionally protected substantive right to be free from such bodily
harm and sexual molestation and abuse as secured by the Due Process and/or Equal
Protection Clauses of the 14th Amendment to the U.S. Constitution.”
We recently noted that “[a] number of circuit courts have found due process
violations when state actors have inflicted sexual abuse on individuals.” Rogers v.
City of Little Rock, Arkansas, 152 F.3d 790, 795 (8th Cir. 1998). We also found that
a claim that a state actor coerced a citizen into having non-consensual sex could rise
to the level of a due process violation. See id. at 796 (citing Haberthur v. City of
Raymore, Missouri, 119 F.3d 720, 723 (8th Cir. 1997)); see also Doe v. Taylor Ind.
Sch. Dist., 15 F.3d 443, 450-52 (5th Cir. 1994) (stating that sexual abuse of a student
by a school teacher violated student’s constitutional right to bodily integrity).
Accordingly, we conclude that Kinman stated a valid cause of action against
McDougall and that the district court should have considered her motion for entry of
default judgment on the merits.
The judgment against the district, Mackiel, and Whitehouse is reversed, and the
case is remanded to the district court with directions to dismiss the complaint as to
those defendants. The order denying Kinman’s motion for default judgment against
McDougall in her individual capacity is reversed, and the case is remanded to the
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district court for further consideration of that motion in accordance with the views set
forth in this opinion.
It is so ordered.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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