Doe Ex Rel. Doe v. Dallas Independent School District

Revised September 17, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10343
_____________________
DOE, on behalf of John Doe, on behalf of Jack Doe, on
behalf of James Doe; ET AL,
Plaintiffs,
JOHN DOE; JOE DOE; ROE, as next friend of Jack Roe; SMITH,
as next friend of James Smith,
Plaintiffs-Appellants,
v.
DALLAS INDEPENDENT SCHOOL DISTRICT; ET AL,
Defendants,
DALLAS INDEPENDENT SCHOOL DISTRICT; BARBARA PATRICK,
Defendants-Appellees.
----------------------------------------------------------------
BOB BLACK; ET AL,
Plaintiffs,
v.
DALLAS INDEPENDENT SCHOOL DISTRICT; ET AL,
Defendants,
DALLAS INDEPENDENT SCHOOL DISTRICT; BARBARA PATRICK,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
August 27, 1998
Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.
KING, Circuit Judge:
Plaintiffs-appellants appeal the district court’s grant
of summary judgment in favor of defendants-appellees on their
claims brought under 42 U.S.C. § 1983. Additionally, plaintiffs-
appellants appeal the district court’s dismissal of their claim
brought under Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681, for failure to state a claim upon which relief
could be granted. For the reasons set forth below, we affirm the
district court’s grant of summary judgment for defendants-
appellees on the § 1983 claims, reverse its dismissal of the
Title IX claim, and remand the case to the district court for
further proceedings consistent with this opinion.
I. FACTUAL & PROCEDURAL BACKGROUND
From 1983 to 1987, John McGrew, a third-grade teacher and
Boy Scout Troop leader at Joseph J. Rhoads Elementary School,
sexually molested numerous male students. McGrew was
subsequently convicted in state court of one count of aggravated
sexual assault and two counts of indecency with a child.
Following his conviction, McGrew was sentenced to one life
sentence and two twenty-year sentences.
2
This case was initially filed in state court on August 20,
1993 by or on behalf of John Doe, Joe Doe, Jack Doe, and James
Doe.1 On September 22, 1993, the action was removed to federal
district court. The original suit alleged claims against
numerous defendants2 based on McGrew’s abuse of the boys pursuant
to (1) 42 U.S.C. § 1983, (2) Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681 (Title IX), (3) the Texas Constitution,
and (4) Texas tort law. On March 29, 1995, the district court
dismissed the Title IX claim because it concluded, based on Fifth
Circuit precedent under Title VII which has since been overruled
by the Supreme Court, that same-sex sexual harassment was not
actionable under Title IX. In addition, the district court
dismissed the Texas common-law tort claims, finding that “[t]he
plaintiffs [had] not alleged [that] any of the moving defendants
committed common law torts.” A suit based on the same facts was
subsequently filed by or on behalf of plaintiffs-appellants Bob
Black, Bill Black, William White, and George Green, and on
February 20, 1996, the two actions were consolidated.3
1
For purposes of filing the lawsuit, the names of the
victims were changed to protect their identities. However, the
boys’ actual initials were used to identify them in depositions
and affidavits.
2
Several of the defendants have since been dismissed
from the case. As their dismissals have not been appealed, they
are not relevant to our discussion.
3
Hereinafter, we refer to the plaintiffs from both suits
collectively as “Plaintiffs.”
3
Plaintiffs argued to the district court that defendants-
appellees Dallas Independent School District (DISD) and Principal
Barbara Patrick (collectively, Defendants) knew or should have
known of McGrew’s sexual abuse as early as the 1983-1984 school
year and that, despite having such knowledge, they acted with
deliberate indifference toward Plaintiffs’ rights, taking no
action to stop the abuse. Defendants filed a motion for summary
judgment on Plaintiffs’ § 1983 claims on the grounds that (1) no
basis existed for holding DISD liable for the conduct of McGrew
and (2) Patrick was entitled to qualified immunity. The district
court granted Defendants’ motion on October 29, 1996, and it
entered final judgment for Defendants on March 6, 1997.
Plaintiffs thereafter timely appealed to this court.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the
same criteria used by the district court in the first instance.
See Kemp v. G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997).
After consulting applicable law in order to ascertain the
material factual issues, we consider the evidence bearing on
those issues, viewing the facts and the inferences to be drawn
therefrom in the light most favorable to the nonmovant. See King
v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). Summary judgment is
appropriate only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
4
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c). However, “[t]he mere
existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient [to preclude summary
judgment]; there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986).
We also review de novo a dismissal for failure to state a
claim upon which relief could be granted. See Norman v. Apache
Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). A case or a portion
thereof may not be dismissed for failure to state a claim unless
it appears certain that the plaintiffs cannot prove any set of
facts in support of their claim that would entitle them to
relief. See Carney v. RTC, 19 F.3d 950, 954 (5th Cir. 1994).
III. DISCUSSION
Plaintiffs raise several issues on appeal. First, they
contend that the district court erred in granting summary
judgment in favor of DISD on their § 1983 claim against it.
Second, they argue that Patrick is not entitled to qualified
immunity. Third, Plaintiffs assert that the Supreme Court’s
decision in Oncale v. Sundowner Offshore Services, Inc., 118 S.
Ct. 998 (1998), renders the district court’s dismissal of their
5
Title IX claim erroneous. We address each of these arguments in
turn.
A. 42 U.S.C. § 1983
Section 1983 provides injured plaintiffs with a cause of
action when they have been deprived of federal rights under color
of state law. The statute states,
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress
. . . .
42 U.S.C. § 1983. In order to state a valid claim under § 1983,
Plaintiffs must “(1) allege a violation of rights secured by the
Constitution or laws of the United States and (2) demonstrate
that the alleged deprivation was committed by a person [or
entity] acting under color of state law.” Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994) (citing West
v. Atkins, 487 U.S. 42, 48 (1988)). Plaintiffs contend that they
presented sufficient summary judgment evidence to create a
genuine issue of material fact as to whether DISD and Patrick,
acting under color of state law, violated their constitutional
rights by failing to protect them from abuse at the hands of
McGrew.
1. DISD
6
Under § 1983, a municipality or local governmental entity
such as an independent school district may be held liable only
for acts for which it is actually responsible. See Pembaur v.
City of Cincinnati, 475 U.S. 469, 480 (1986); Spann v. Tyler
Indep. Sch. Dist., 876 F.2d 437, 438 (5th Cir. 1989). Thus, “a
municipality cannot be held liable solely because it employs a
tortfeasor--or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Monell v.
Dep’t of Social Servs. of New York, 436 U.S. 658, 691 (1978); see
also 1B MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION:
CLAIMS AND DEFENSES § 7.5 (3d ed. 1997). However, a municipality
may be held liable under § 1983 when “execution of a government’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy,
inflicts the injury.” Monell, 436 U.S. at 694; see also 1B
SCHWARTZ & KIRKLIN, supra, § 7.5 (“A municipality is liable for its
own wrongs when enforcement of a municipal policy or practice
results in a deprivation of federally protected rights.”).
“Thus, § 1983 municipal liability may be imposed when (1) the
enforcement of a municipal policy or custom was (2) ‘the moving
force’ of the violation of federally protected rights.” 1B
SCHWARTZ & KIRKLIN, supra, § 7.6 (quoting City of Canton v. Harris,
489 U.S. 378, 385-91 (1989)).
Plaintiffs rely on two distinct rationales in support of
their claim that DISD is liable to them under § 1983. First,
7
they argue that DISD is liable for Patrick’s deliberate
indifference to their constitutional rights because it delegated
to her policymaking authority over the school’s response to
allegations of sexual abuse. Second, Plaintiffs contend that
DISD’s failure to adopt a policy regarding what steps should be
taken when a child alleges that he was a victim of sexual abuse
at the hands of a school employee amounts to deliberate
indifference on the part of DISD itself. DISD responds that
Patrick was not a policymaker and that it therefore may not be
held liable for her actions or inactions. In addition, it argues
that it may not be held liable for the non-existence of a policy
on sexual abuse.
The district court determined that, under Texas law, Patrick
was not an official policymaker for DISD and that DISD’s Board of
Directors did not delegate any final policymaking authority to
Patrick. Moreover, the district court held that DISD’s failure
to adopt a specific policy to protect against the sexual abuse of
students did not cause the constitutional violations suffered by
Plaintiffs. It therefore held that Plaintiffs failed to
establish a genuine issue of material fact with respect to DISD’s
liability, and it granted summary judgment in favor of DISD.
Whether an official has policymaking authority is a question
of state law. Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241,
1245 (5th Cir. 1993). In Jett, this court explained that under
8
Texas law, policymaking authority in an independent school
district rests with the board of trustees.
Texas law is clear that final policymaking authority in
an independent school district, such as the DISD, rests
with the district’s board of trustees. Texas Education
Code § 23.01 provides that “The public schools of an
independent school district shall be under the control
and management of a board of seven trustees.” The
Education Code further provides that “[t]he trustees
shall have the exclusive power to manage and govern the
public free schools of the district,” id. § 23.36(b)
(emphasis added), and that “[t]he trustees may adopt
such rules, regulations, and by-laws as they may deem
proper.” Id. § 23.26(d). . . . It is to be noted that
the Education Code gives the board of trustees not only
what might be described as a form of legislative power
over the district they serve--the power to make “rules,
regulations, and by-laws”--but also a form of executive
power, the power to “control” and the “exclusive” power
to “manage” as well as to “govern” the district.
Id. (footnote omitted and alterations in original except for
ellipsis). Moreover, we have noted that, “although Texas law
provides that the principal is to exercise decision-making
authority in certain areas, even in those areas the principal
must follow the guidelines and policies established by the school
district.” Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304
(5th Cir. 1995).
The Supreme Court has cautioned that “a federal court would
not be justified in assuming that municipal policymaking
authority lies somewhere other than where the applicable law
purports to put it.” City of St. Louis v. Praprotnik, 485 U.S.
112, 126 (1988). Additionally, Supreme Court precedent indicates
that a body vested with policymaking authority cannot be found to
9
have delegated that authority to a subordinate official merely
because it failed to investigate her discretionary actions. See
id. at 130.
Plaintiffs allege that because DISD had no formal policy for
addressing allegations of sexual abuse, it delegated to
principals, such as Patrick, the authority to make policy in that
area. Plaintiffs rely solely on the deposition testimony of Nell
Lewis, DISD’s former executive director for elementary education,
to support this argument. Lewis testified that DISD had no
standard procedure for handling allegations of sexual abuse and
that often a school’s principal made the initial decision as to
what actions to take in response to such an allegation.
Plaintiffs contend that this evidences DISD’s delegation of
policymaking authority to Patrick. We disagree. As the district
court properly concluded, Lewis’s testimony establishes only that
principals were given the discretion to handle allegations of
sexual abuse, not that they were delegated the broader authority
to formulate official policy on the subject.
Plaintiffs next contend that DISD’s failure to adopt an
official policy should subject them to liability. A school
district’s failure to adopt an official policy on a given subject
may serve as the basis for § 1983 liability only when the
omission “amount[s] to an intentional choice, not merely an
unintentionally negligent oversight,” and the Supreme Court has
held that such an omission is equivalent to an intentional choice
10
only where the entity has acted with deliberate indifference.
Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992)
(citing City of Canton, 489 U.S. at 390). “A failure to adopt a
policy can be deliberately indifferent when it is obvious that
the likely consequences of not adopting a policy will be a
deprivation of constitutional rights.” Id. (citing City of
Canton, 489 U.S. at 390).
Plaintiffs point to no evidence suggesting that, at the time
of the sexual abuse, the lack of an official policy on this issue
was the result of an intentional choice on the part of the board
of trustees. Moreover, in Spann v. Tyler Independent School
District, we held that a school board’s decision to vest school
principals with complete discretion to address allegations of
sexual abuse was a “perfectly reasonable policy for dealing with
reported instances of sexual abuse.”4 876 F.2d at 438. If an
4
In Spann, the plaintiff alleged that the school
district was liable for the sexual abuse that he suffered at the
hands of a school bus driver because the principal failed to take
action on Spann’s earlier complaint regarding the abuse. See 876
F.2d at 437-38. The school district had a policy that delegated
to the school principal “the complete discretion whether to
investigate reports of sexual abuse and determine their
validity.” Id. at 438. This court held that
[t]he repetition of Jason’s injury was not caused by
school board policy: the school board had a perfectly
reasonable policy for dealing with reported instances
of sexual abuse. Instead the injury was caused by the
failure of [the principal] properly to exercise the
discretion granted him by the policy of TISD. To hold
TISD liable for the omissions of the principal would
fly in the face of Monell’s explicit holding that the
school board cannot be held liable for the acts of its
11
explicit policy delegating the matter to principals was
“perfectly reasonable,” and thus did not constitute deliberate
indifference on the part of the school district, then we cannot
say that a custom tantamount to such a policy was not also
reasonable.5 Thus, the district court was correct in granting
summary judgment in favor of DISD.
2. Principal Barbara Patrick
Plaintiffs next argue that Patrick is not entitled to
qualified immunity for her actions or inactions because she had
notice of McGrew’s sexual abuse of Plaintiffs, she was
deliberately indifferent to it, and her failure to take action
caused Plaintiffs to suffer a constitutional injury. Patrick
claims that she is entitled to qualified immunity because she did
not have notice of the possibility of McGrew’s misconduct for the
majority of the period at issue and, when made aware of the
employees on the basis of respondeat superior. . . .
TISD did not officially sanction or order the error in
judgment of the school principal, and thus we reject
the notion that TISD is liable for the unfortunate
injury to Jason Spann.
Id. at 438-39.
5
The events leading to this lawsuit took place over ten
years ago. At oral argument, Defendants’ counsel advised us that
DISD has since adopted specific policies relating to claims of
sexual abuse and harassment.
12
allegations, she did not respond in a manner that constituted
deliberate indifference toward Plaintiffs’ rights.6
The district court determined that a genuine issue of
material fact existed as to whether and when Patrick became aware
of allegations that McGrew was sexually abusing some of his
students. Nevertheless, the district court concluded that no
genuine issue of material fact existed as to whether Patrick
acted with deliberate indifference because she did not ignore the
information that she received. The district court therefore
granted summary judgment in favor of Patrick, finding that she
was entitled to qualified immunity.
We have formulated a three-part test for determining the
personal liability of school officials in sexual abuse cases.
A supervisory school official can be held personally
liable for a subordinate’s violation of an elementary
or secondary school student’s constitutional right to
bodily integrity in physical sexual abuse cases if the
plaintiff establishes that:
(1) the defendant learned of facts or a pattern
of inappropriate sexual behavior by a
subordinate pointing plainly toward the
conclusion that the subordinate was sexually
abusing the student; and
(2) the defendant demonstrated deliberate
indifference toward the constitutional rights
of the student by failing to take action that
was obviously necessary to prevent or stop
the abuse; and
6
Patrick also relies on several other defenses in
support of her claim that she was entitled to summary judgment on
the issue of qualified immunity. Because we conclude that
Patrick did not act with deliberate indifference toward
Plaintiffs’ constitutional rights, we need not address these
arguments.
13
(3) such failure caused a constitutional injury
to the student.
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994)
(en banc). Thus, in order to survive summary judgment,
Plaintiffs must put forth evidence sufficient to create a genuine
issue of material fact on each of these issues.
Patrick first contends that Plaintiffs have failed to create
a genuine issue of material fact as to whether she had notice of
“facts or a pattern of inappropriate sexual behavior by a
subordinate pointing plainly toward the conclusion that the
subordinate was sexually abusing . . . student[s].” Id.
Plaintiffs argue that Patrick was aware of McGrew’s actions. In
support of their claim, they offer the deposition testimony of
several children that McGrew molested, but the majority of the
victims testified that they either told no one about the abuse or
that they told only a teacher, a teacher’s aide, or a parent.
They offered no evidence linking the information to Patrick.
Therefore, these depositions do not support the claim that
Patrick was aware of the abuse.7 However, in the Spring of 1986,
7
However, the evidence regarding two of the boys bears
brief discussion. First, Plaintiff D.D.P. stated in a 1988
affidavit and in a 1996 deposition that McGrew had fondled him.
In the affidavit, he claimed that he “told Ms. Patrick . . .
about what happened.” In his deposition testimony, however, he
clarified his report of the incident, stating that he actually
told two women who worked in Patrick’s office. While he stated
that he thought Patrick probably could hear what he was saying,
he admitted that she was in another room on the telephone and
that he could only see her through a partially open door. He
denied ever having spoken to Patrick herself. As D.D.P.’s
14
plaintiff J.H. told his mother and Patrick that McGrew had
fondled him when he delivered a note to McGrew’s classroom.
Patrick does not dispute that J.H. and his mother discussed the
incident with her. Thus, we conclude that Patrick had notice as
of the Spring of 1986 of an allegation that McGrew fondled J.H.
Given that Patrick had notice of an allegation of sexual
abuse by McGrew, we next consider whether Plaintiffs have created
a genuine issue of material fact as to whether Patrick acted with
deliberate indifference when informed of J.H.’s allegations. The
parties agree that upon hearing J.H.’s accusation, Patrick met
with J.H., his mother, and McGrew to discuss the issue.
Plaintiffs nevertheless contend that Patrick’s failure to
reprimand McGrew formally or to transfer him indicates that she
was deliberately indifferent to the rights of J.H. We disagree.
statement that he was “pretty sure [Patrick] could have heard”
him telling the women in the office about the incident is
entirely speculative, it is not sufficient to raise a question of
fact as to whether Patrick was aware of the incident. See Ruiz
v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994) (“Testimony
based on conjecture or speculation is insufficient to raise an
issue of fact to defeat a summary judgment motion . . . .”).
Second, plaintiff W.J.H. testified that Patrick may have
asked him whether McGrew had touched him, stating, “I think
[Patrick] asked all of us, I think, but I can’t remember though.”
However, W.J.H. stated that when Patrick asked him about McGrew,
he denied that any improper touching had taken place. Assuming,
for purposes of summary judgment, that Patrick did ask W.J.H.
about any sexual abuse by McGrew, the fact that W.J.H. denied it
indicates that this incident was not sufficient to put Patrick on
notice of the abuse.
15
The deliberate indifference standard is a high one. Actions
and decisions by officials that are merely inept, erroneous,
ineffective, or negligent do not amount to deliberate
indifference and thus do not divest the official of qualified
immunity. In Taylor, we explained,
We can foresee many good faith but ineffective
responses that might satisfy a school official’s
obligation in these situations, e.g., warning the state
actor, notifying the student’s parents, or removing the
student from the teacher’s class.
Id. at 456 n.12. This is just such a case. Patrick testified
that following her meeting with J.H., his mother, and McGrew, she
determined that J.H.’s allegations were not true. Nevertheless,
she warned McGrew to examine his behavior closely and to ensure
that he was not doing anything that could be misinterpreted by a
child.
The fact that Patrick misread the situation and made a
tragic error in judgment does not create a genuine issue of
material fact as to whether she acted with deliberate
indifference toward J.H.’s constitutional rights. As Plaintiffs
have failed to create a genuine issue of material fact as to (1)
whether Patrick was aware of other allegations of abuse or (2)
whether she acted with deliberate indifference toward J.H.’s
constitutional rights upon being informed of his allegation, we
conclude that Patrick was entitled to summary judgment in her
favor on the issue of qualified immunity.
16
B. Title IX
Title IX provides in pertinent part that, “[n]o person . . .
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Although its express means of
enforcement is administrative, the Supreme Court has held that
Title IX is also enforceable through an implied private right of
action in which the injured party may seek money damages. See
Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989, 1994
(1998) (citing Cannon v. University of Chicago, 441 U.S. 677
(1979) and Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60
(1992)).
The district court dismissed Plaintiffs’ Title IX claim,
explaining that “[b]ecause the only basis of discrimination
alleged by the plaintiffs is same-sex harassment, the plaintiffs
have failed to state a claim under Title IX.” Plaintiffs argue
that in light of the Supreme Court’s recent decision in Oncale v.
Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998), the
district court erred in dismissing their Title IX claim pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief could be granted.
In Oncale, the Supreme Court explained that “nothing in
Title VII [of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
17
2000e-17,] necessarily bars a claim of discrimination ‘because of
. . . sex’ merely because the plaintiff and the defendant (or the
person charged with acting on behalf of the defendant) are of the
same sex.” Id. at 1001-02. Plaintiffs now argue that because
the district court’s dismissal of their Title IX claim was based
solely on this circuit’s precedent indicating that same-sex
sexual harassment was not actionable under Title VII, it must be
reversed in light of Oncale.
Defendants concede that, in light of Oncale’s holding, same-
sex sexual harassment is actionable under Title IX as well as
under Title VII. They argue, however, that we should nonetheless
affirm the dismissal of Plaintiffs’ Title IX claim because the
court reached the right result, albeit for the wrong reason.
Defendants therefore in essence suggest that because summary
judgment was appropriate on Plaintiffs’ § 1983 claims, which were
based on the same facts as the Title IX claim, we may affirm the
dismissal on that basis. We disagree.
A district court’s dismissal of a case or a portion thereof
for failure to state a claim upon which relief could be granted
is not equivalent to a grant of summary judgment.
The Rule 12(b)(6) motion . . . must be distinguished
from a motion for summary judgment under Rule 56, which
goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact. The
Rule 12(b)(6) motion, as has been mentioned above, only
tests whether the claim has been adequately stated in
the complaint.
18
5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE
§ 1356 (2d ed. 1990). Neither Plaintiffs nor Defendants included
evidence outside the pleadings in their briefs discussing the
motion to dismiss, and the district court specifically noted that
it was accepting all well-pleaded facts alleged by Plaintiffs as
true.
While we have determined that the evidence presented by
Plaintiffs in opposition to Defendants’ motion for summary
judgment on the § 1983 claims failed to create a genuine issue of
material fact, we cannot say that as to the Title IX claim the
facts pled in the complaint, when taken as true, fail to state a
claim upon which relief could be granted.8 Therefore, we
8
Moreover, we note that, although they are similar, the
standards for school district liability under § 1983 and under
Title IX are not identical. In order to prevail against a school
district under Title IX, a plaintiff must demonstrate that “an
official who at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the
[school district’s] behalf ha[d] actual knowledge of
discrimination . . . and fail[ed] adequately to respond.”
Gebser, 118 S. Ct. at 1999. In order to prevail against the same
district under § 1983, however, the plaintiff must demonstrate
that “(1) the enforcement of a municipal policy or custom was (2)
‘the moving force’ of the violation of federally protected
rights.” 1B SCHWARTZ & KIRKLIN, supra, § 7.6 (quoting City of
Canton v. Harris, 489 U.S. 378, 385-91 (1989)). Plaintiffs have
not had occasion to put forth evidence in support of their Title
IX claim, and they must be given an opportunity to do so. See
Millar v. Houghton, 115 F.3d 348, 350 (5th Cir. 1997) (“Under
Fed. R. Civ. P. 56(c), a party must be served with a motion for
summary judgment at least 10 days before a court grants the
motion against him. Similarly, a party must be given at least 10
days notice before a court grants summary judgment sua sponte.
This requirement places a party on notice that he is in jeopardy
of having his case dismissed and affords him the opportunity to
put forth evidence to show precisely how he intends to prove his
19
conclude that the district court’s judgment dismissing
Plaintiffs’ Title IX claim must be reversed and the case must be
remanded to the district court for further proceedings consistent
with this opinion.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of DISD on Plaintiffs’ § 1983
claim and its grant of summary judgment on the issue of Patrick’s
entitlement to qualified immunity; we REVERSE the district
court’s dismissal of Plaintiffs’ Title IX claim; and we REMAND
the case to the district court for further proceedings consistent
with this opinion. Each party shall bear its own costs.
case at trial.” (footnotes omitted)).
In remanding this case for further proceedings, we in no way
intend to suggest that summary judgment would be inappropriate if
Defendants are able to demonstrate, as they did with respect to
Plaintiffs’ § 1983 claims, that no genuine issue of material fact
exists with respect to Plaintiffs’ Title IX claim. Indeed, given
the factual development that took place in this case with respect
to the § 1983 claims against DISD and Patrick, we can say that if
Plaintiffs can produce no additional evidence, Defendants will be
entitled to summary judgment on the Title IX claim.
20