Floyd v. Waiters

¶5EDMONDSON, Circuit Judge:

¶6In this case, we address a question of school district liability for acts of sexual harassment of students by school district employees. Plaintiffs appeal the district court’s order granting .summary judgment for Defendants on Plaintiffs’ Title IX and Section 1983 claims. We conclude that Plaintiffs, as a matter of law, cannot maintain either claim; and we affirm.

¶7Background

¶8Carol and Carla Floyd (Plaintiffs), students under the authority of the Board of Public Education and Orphanage for Bibb County (BOE), say that William Booker (Booker), a security guard for the BOE, sexually harassed them.1 As a result, Plaintiffs sued the Bibb school district and a number of school officials under 42 U.S.C. § 1983, 20 U.S.C. § 1681(a) (1988) (Title IX), and state law.2

¶9*789Defendants Massey, Hagler, Nicholson, Tinker, and Bronson (collectively “Defendants”) filed a motion for summary judgment on Plaintiffs’ Title IX and section 1983 claims. The district court granted the motion, dismissed the pendent state law claims without prejudice, and certified its summary judgment order for immediate appeal. Plaintiffs appealed; Defendants cross-appealed.3

¶10Discussion

¶11A. Title IX

¶12Plaintiffs contend that they were the victims of intentional discrimination — based on the sexual harassment by Booker — in violation of Title IX. The relevant provision of Title IX states that “[n]o person in the United States shall, on the basis of sex, ... be subjected to discrimination under any education program or activity receiving Federal financial assistance.... ” 20 U.S.C. § 1681(a) (1988).

¶13We are not the first to write about Title IX. And some things are now established. In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 1038, 117 L.Ed.2d 208 (1992), the Supreme Court decided that sexual harassment can be considered discrimination under Title IX. In the light of Franklin, we accept that monetary relief is available to private persons for intentional violations of Title IX. Id. at 73-74, 112 S.Ct. at 1037-38.

¶14In Davis v. Monroe County Board of Education, we set out our understanding of some Title IX basics. For example, Title IX was enacted pursuant to the Spending Clause of Article I, which permits Congress to condition “the receipt of federal funding upon a recipient’s compliance with federal statutory directives....” 120 F.3d 1390, 1397 (11th Cir.1997) (en banc). In other words, “Congress intended Title IX to be a typical contractual spending-power provision.” Id. at 1398 (internal quotations and citation omitted). So, recipients — local school districts— that accept these federal funds agree to abide by the conditions placed on the funds, which, in essence, forms a “contract.” Id.But, the acceptance by the local government must be a knowing one, that is, the local government must be able to ascertain easily what is expected of it if it accepts federal funds: “the Supreme Court has required Congress to give potential recipients unambiguous notice of the conditions they are assuming when they accept federal funding.” Id.

¶15From what we have already written about the contractual nature of the liability, we think it follows that, because the contracting party is the grant-receiving local school district, a “Title IX claim can only be brought against a grant recipient [ — that is, a local school district — ] and not an individual.” Smith v. Metro. Sch. Dist. Perry Township, 128 F.3d 1014, 1019 (7th Cir.1997); see also Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012-13 (5th Cir.1996).

¶16The main issue in this case is by what acts or, perhaps, by whose acts does the local school district become liable to an individual *790under Title IX.4 As an academic matter, one might argue that a number of potential theories of liability should apply. Our colleagues in the Fifth Circuit have already addressed this question; and we think, for the reasons they explain, they are largely correct. Therefore, to the extent that Rosa H. v. San Elizario Independent School District, 106 F.3d 648 (5th Cir.1997), rejected theories of liability, we gratefully adopt and follow that decision.5See also Smith, 128 F.3d at 1034 (adopting Rosa H.). Thus, we basically reject respondeat superior liability (and liability based on other variants of agency law) for local school districts under Title IX.

¶17We also accept and adopt the conclusion in Rosa H. that the grant recipient — the local school district' — must have actual notice of the pertinent sexual harassment and then fail to act if the school district is to incur liability under Title IX. Rosa H. 106 F.3d at 658-59. We cannot follow Rosa H. completely, however.

¶18As we understand Title IX, we believe the school district can be liable only for the school district’s own acts or omissions: institutional misconduct is the basis for institutional liability.6 So, we cannot agree that notice of sexual harassment can be imputed to the school district — that is, the kind of notice that triggers the necessity for the school district’s leaders to act or else the district will be held liable for violating Title IX — whenever a harassing employee’s supervisor, with the authority to take action to end such abuse, has knowledge of the harassment. See id. at 659-60.

¶19To us, the Rosa H. interpretation of notice to the school district is, itself, a kind of vicarious liability based on respondeat superior. And we — for the reasons set out in Rosa H. and here — reject such liability. Instead, to determine the extent of a school district’s liability, we must look at the statutes and regulations — that is, the notice— that existed when the school district accepted Title IX funds and made the “contract” not to discriminate.7 As we have said, the rele*791vant statute under Title IX prohibits discrimination in any “program or activity.” 20 U.S.C. § 1681(a). Section 1687 defines “program or activity” as “all of the operations of — (B) a local educational agency (as defined in § 8801 of this title), system of vocational education, or other school system.” 20 U.S.C. § 1687. Section 8801, in turn, defines “a local education agency” as:

(A) ... a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondaiy schools.

¶2020 U.S.C. § 8801(18) (emphasis added). Thus, the provisions of Title IX direct us to state law to determine who is responsible for the “administrative control or direction” of the school district under Title IX.8See, e.g., Smith, 128 F.3d at 1020-21.

¶21In this case, the BOE and Bibb school system were created by an Act of the Georgia General Assembly in 1872, which has been amended on many occasions. See Ga. L. 1872, p. 388, as amended by Act approved March 21, 1968, Ga. L.1968, p. 2835, as amended by Act approved April 30,1969, Ga. L.1969, p. 3999, as amended by Act approved April 10,1971, Ga. L.1971, p. 3926, as amended by Act approved April 2, 1992, Ga. L.1992, p. 5264. Now, the BOE consists of ten members, eight of which are elected by general election. See Ga. L.1971, p. 3926. The superintendent of schools, however, is appointed by the BOE and serves at its pleasure. See Ga. L.1968, p. 2835.

¶22Since its creation, the Bibb school district has been recognized as an “independent school system” under Georgia law, which excepts it from certain constitutional changes that occurred in 1877 and 1945. See Board of Pub. Educ. and Orphanage for Bibb County v. Zimmerman, 231 Ga. 562, 565-66, 203 S.E.2d 178 (1974). But, aside from those exceptions, “[the Bibb school system] is subject to constitutional change and to general laws adopted by the General Assembly of Georgia.” Id. at 566, 203 S.E.2d 178.

¶23Georgia law includes this provision:

The local school superintendent shall be the executive officer of the local board of education; ... [i]t shall be the local school superintendent’s duty to enforce all regulations and rules of the State School Superintendent and of the local board according to the laws of the state and the rules and regulations made by the local board that are not in conflict with state laws....

¶24Ga.Code Ann. § 20-2-109 (emphasis added). So, when a school district accepts funds per Title IX, the school district, in effect, makes the Title IX standard part of its own regulations. This statute designates the local school superintendent as the party responsible for ensuring the school district’s compliance with its statutory and regulatory obligations, such as Title IX.9

¶25*792Thus, we think that the federal statutes and regulations incorporate — under Georgia law — the local school superintendent into the statutory scheme.10 There was simply no notice — as required for Spending Clause legislation — to the school board that enforcement responsibilities under Title IX and, in turn, the power to bring monetary liability onto the school district would extend beyond the superintendent and school board to lower employees.11

¶26We think this standard for when school districts can be held liable under Title IX is correct. We stress that, as a practical matter, our understanding of Title IX does not make the rights created under Title IX meaningless or almost meaningless. School superintendents and school board members are local public officials to whom letters are easily sent and who often appear at public meetings and receive constituent phone calls.12 They can — for example, by reasonable efforts of parents and students — be put on notice of misconduct. If the superintendent or school board then does nothing, the school district can be liable.13 And, such liability fits the contractual nature of Title IX; a school board — the party that accepts Title IX funding for a school district and makes the “contract” — is the only party that can “breach” the terms of the Title IX “contract.”

¶27It is true that sexual misconduct is usually covert; but we have no good reason to think that Congress intended to place substantial monetary liability on local school districts for the secret misconduct of employees — except perhaps for secret misconduct of a superintendent himself. We see nothing in the lan*793guage of Title IX to the contrary or that puts the BOE on notice of a liability beyond what we recognize today. School districts can be liable to individuals for breaching their contract with the national government; but, in the light of the contractual nature of the liability, their liability — at least when based on pre-March 1997 occurrences — cannot be based on the respondeat superior doctrine. For liability in Georgia, the superintendent or the board must have actual knowledge14 of the sexual harassment and then fail to take reasonable steps to end the abuse.

¶28In this case, the record reveals no evidence that Hagler15- — the BOE superintendent of schools — or the school board members were ever aware of Booker’s conduct before the incidents at issue here, nor does it show a failure to take remedial action once necessary. Thus, no liability exists under Title IX: the school district, as an institution, has not been shown to have intentionally discriminated against the Plaintiffs. The district court did not err by granting summary judgment on the Title IX claim.

¶29B. Section 1983

¶30Plaintiffs also claim that the district court erred by granting summary judgment and finding the school district not liable under section 1983 for Booker’s misconduct. A municipality may be held liable under section 1983 for the “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” that causes the deprivation of federal rights. Monell v. Department of Social Servs., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); see Pembaur v. City of Cincinnati 475 U.S. 469, 475, 106 S.Ct. 1292, 1297, 89 L.Ed.2d 452 (1986). But, it is well established that a municipality may not be held liable under section 1983 on a theory of respondeat superior. See Monell, 436 U.S. at 691-92, 98 S.Ct. at 2037-38; Pembaur, 475 U.S. at 475, 106 S.Ct. at 1297; Morro v. City of Birmingham, 117 F.3d 508, 514 (11th Cir.1997); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir.1991); Mandel v. Doe, 888 F.2d 783, 791 (11th Cir.1989). Instead, “only deprivations undertaken pursuant to governmental ‘custom’ or ‘policy5 may lead to the imposition of governmental liability.” Mandel, 888 F.2d at 791. As the Supreme Court stated in Pembaur, “recovery from a municipality is limited to acts that are, properly speaking, acts ‘of the municipality’ — that is, acts which the municipality has officially sanctioned or ordered.” 475 U.S. at 478, 106 S.Ct. at 1298.

¶31As a result, Plaintiffs assert three theories of recovery against the school district: (1) that Waiters, Tinker, and Nicholson had final policymaking authority over the school’s security force and established a “policy” of sexual harassment that caused Plaintiffs’ injuries; (2) that improper “customs” existed within the school district; and (3) that the school district failed to train or to supervise the security department. Despite Plaintiffs’ contentions, we find all arguments unpersuasive.

¶321. Policy

¶33In Brown, we wrote that “a municipal official who has ‘final policymaking authority’ in a certain area of the city’s business may by his or her action subject the government to § 1983 liability when the challenged action falls within that authority.” 923 F.2d at 1480; see also Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir.1997). But, as the Supreme Court wrote in Pembaur, “not every decision by municipal officers automatically subjects the municipality to § 1983 liability.... The fact that a *794particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.” 475 U.S. at 480-481, 106 S.Ct. at 1299-1300. Thus, liability results when the “municipal official possesses the authority and responsibility for establishing final policy with respect to the issue in question.” Mandel, 888 F.2d at 793 (emphasis in original). Further, the determination of whether an official has final policymaking authority is a question of state law to be decided by the court. See Brown, 923 F.2d at 1480 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 734, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 [1989]); Mandel, 888 F.2d at 793.

¶34Here, Plaintiffs contend — in essence — that Waiters, Tinker, and Nicholson had final poli-cymaking authority over the security department because “a custom and practice developed so that the policy was that [Waiters, Tinker, and Nicholson were] authorized to function without any supervision or review at all.” Mandel, 888 F.2d at 794; see Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638 (11th Cir.1991). Then Plaintiffs say that, because Waiters, Tinker, and Nicholson were final policymakers and because the misconduct at issue here fell within the ambit of their policymaking authority, the school district should be liable for Plaintiffs’ injuries.

¶35Other than general allegations, Plaintiffs have provided no evidence or support for the claim that these Defendants had final policymaking authority over the security department. Georgia law states that only the BOE is authorized to establish the rules and regulations that govern the operation of the school district. See Ga. L. 1872, p. 388, as amended by Act approved March 21,1968, Ga. L.1968, p. 2835. In addition, “a school board has no authority, by contract or otherwise, to delegate to others the duties placed on the board by the Constitution and laws of Georgia.” Chatham Ass’n. of Educators, Teacher Unit v. Board of Pub. Educ. for City of Savannah and Chatham County, 231 Ga. 806, 807-08, 204 S.E.2d 138 (1974).

¶36As a result, Plaintiffs have — at most— demonstrated only that these Defendants had some “discretion” in the performance of their jobs. But, “the mere delegation of authority to a subordinate to exercise discretion is not sufficient to give the subordinate policymaking authority.” Mandel, 888 F.2d at 792. And, that the BOE did not continually investigate and review those decisions does not alter this conclusion. As the Supreme Court wrote: “the mere failure to investigate the basis of a subordinate’s discretionary decisions does not amount to a delegation of policymaking authority....” City of St. Louis v. Praprotnik, 485 U.S. 112, 129, 108 S.Ct. 915, 928, 99 L.Ed.2d 107 (1988). Nothing evidences that these Defendants were not “constrained by official policies and [that their actions were] not subject to review.” Scala, 116 F.3d at 1399 (quoting Mandel, 888 F.2d at 792).

¶37And, at least one example discussed by Plaintiffs about Tinker’s (so-called) policy-making authority supports our conclusion that these Defendants, in fact, had no final policymaking authority. In 1984 or 1985, Tinker produced a booklet about rules and procedures for school security. The record reveals, however, that the booklet was given to and reviewed by the BOE before its dissemination to school security guards, that is, Tinker’s “policymaking” was reviewed. This court has consistently held that “a municipal official does not have final policymaking authority over a particular subject matter when that official’s decisions are subject to meaningful administrative review.” Morro, 117 F.3d at 514; see Scala, 116 F.3d at 1401 (citing Manor, 929 F.2d at 638).16

¶38Thus, we conclude that the district court did not err by finding and concluding that *795Waiters, Tinker, and Nicholson had no final policymaking authority; section 1983 liability cannot be based on this theory.

¶392. Custom

¶40The Supreme Court said in Monell that a municipality may be sued for deprivations “visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” 436 U.S. at 690, 98 S.Ct. at 2036. And, in Brown, we set out this standard:

To prove § 1983 liability against a municipality based on custom, a plaintiff must establish a widespread practice that, “although not authorized by -written law or express municipal policy, is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”

¶41923 F.2d at 1481 (internal quotations and citations omitted). Put differently, “a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it.” Id.Thus, Plaintiffs can maintain their section 1983 claim if they can demonstrate that a custom existed, that the custom caused a deprivation of Plaintiffs’ federal rights, and that the custom was so widespread that the BOE was aware of the custom but failed to end it. See id.; City of Canton v. Harris, 489 U.S. 378, 384, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989).

¶42In granting summary judgment to Defendants on Plaintiffs’ section 1983 claim, the district court found that security guards’ driving students without chaperons in privately-owned vehicles contrary to written policy17 was a persistent and widespread custom of the school district. But, the district court decided that mere acquiescence in this custom was insufficient to support governmental liability because an inadequate causal connection linked the custom and Plaintiffs’ injuries; the court concluded that the custom was too “far removed” from Plaintiffs’ injuries. See Canton, 489 U.S. at 384, 109 S.Ct. at 1203.

¶43On appeal, Plaintiffs argue that the district court mis-charaeterized the custom at issue.18 They contend that the longstanding and widespread custom was that male security guards transported female students from school campuses to the “Playhouse,” which was operated by the security department for the purposes of engaging in illicit sex.19 We conclude, however, that this conduct does not constitute a school district “custom” that could support section 1983 liability.

¶44As noted above, a “custom” requires that policymaking officials knew about the widespread practice but failed to stop it. See Brown, 923 F.2d at 1481. Here, Plaintiffs have provided no evidence that poheymaking officials — the BOE — knew about the Playhouse or the activities that occurred there.20 And, in fact, the record shows just the opposite — that the Playhouse was concealed from school officials. Nothing concrete supports the claim that the conduct was “so permanent and well settled as to constitute a ‘cus*796tom or usage’ with the force of law.” Brown, 923 F.2d at 1481 (internal quotations and citations omitted). As a result, this characterization of the custom is not sufficient for section 1983 liability.

¶453. Failure to Train and to Supervise

¶46Plaintiffs also argue that the school district is liable under section 1983 for failing to train and to supervise the security department properly. We have recognized that a municipality’s failure to train or supervise may be actionable under section 1983 if it evidences a “deliberate indifference” — again, by policymaking officials — to the rights of the inhabitants of the municipality because “such a shortcoming [may] be properly thought of as a city ‘policy or custom’....” Vineyard v. County of Murray, 990 F.2d 1207, 1212 (11th Cir.1993); see Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489-90 (11th Cir.1997); see also Canton, 489 U.S. at 386-87, 109 S.Ct. at 1204-05. But, in Sewell, we adopted the Second Circuit’s interpretation of this principle:

Where the proper [course of conduct] ... is obvious to all without training or supervision, then the failure to train or supervise is generally not “so likely” to produce [improper conduct] as to support an inference of deliberate indifference by city policymakers to the need to train or supervise. :|; …

The Supreme Court has made clear that § 1983 does not subject municipalities to liability whenever municipal employees go astray. It is only when the municipality itself wreaks injury on its citizens that municipal liability is appropriate.... [And when misdeeds] relate to such basic norms of human conduct!,] ... a municipal policymaker need not expend precious resources on training or supervision but can instead rely on the common sense of her employees.

¶47Walker v. City of New York, 974 F.2d 293, 299-300, 301 (2d Cir.1992); see Sewell, 117 F.3d at 490. A pattern of known misconduct, however, may be sufficient to change reasonable reliance into deliberate indifference. Id.

¶48Applying the reasoning of Sewell and Walker to the facts of this case, we conclude that the BOE did not act with deliberate indifference to the training and supervision of the security department. Booker’s conduct and the operation of the Playhouse were clearly against the basic norms of human conduct. The pertinent conduct was a crime in Georgia. Without notice to the contrary, the BOE was entitled to rely on the common sense of its employees not to engage in wicked and criminal conduct. The record contains no evidence that this reliance ever rose to the level of deliberate indifference by policymaking officials. See Canton, 489 U.S. at 388, 109 S.Ct. at 1205 (stating that liability requires a “deliberate” or “conscious” choice by a municipality). The district court did not err by granting summary judgment to Defendants on the section 1983 claim.21

¶49AFFIRMED.22