IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-10612
_____________________
DOE, Mrs, on behalf of John Doe, on behalf of Jack Doe, on
behalf of James Doe; ET AL
Plaintiffs
JOHN DOE; JOE DOE; MS ROE, as next friend on Jack Roe;
MS SMITH, as next friend of James Smith
Plaintiffs - Appellants
v.
DALLAS INDEPENDENT SCHOOL DISTRICT, ET AL
Defendant
DALLAS INDEPENDENT SCHOOL DISTRICT
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
July 24, 2000
Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.
KING, Chief Judge:
Plaintiffs-Appellants appeal the district court’s grant of
summary judgment in favor of Defendant-Appellee Dallas
Independent School District on their claims brought under Title
IX of the Education Amendments of 1972. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
John Earl McGrew, a third-grade teacher and Boy Scout troop
leader at Joseph J. Rhoades Elementary School (“J.J. Rhoades”),
sexually molested numerous male students between 1983 and 1987.
He was subsequently convicted in state court on one count of
aggravated sexual assault and two counts of indecency with a
child. McGrew was sentenced to one life sentence and two twenty-
year sentences.
After McGrew’s criminal conviction, a number of his victims
brought this action against the Dallas Independent School
District (“DISD”), John Earl McGrew, the Boy Scouts of America,
Circle Ten Council, Inc. Boy Scouts of America, J.J. Rhoades,
Linus Wright, Marvin Edwards, and Barbara Patrick.1 Mrs. Doe on
behalf of John Doe, Joe Doe, Jack Doe, and James Doe2 originally
filed the case in state court. The case was subsequently removed
to the United States District Court for the Northern District of
Texas. The complaint alleged claims under 42 U.S.C. § 1983,
Title IX of the Education Amendments of 1972, see 20 U.S.C. §
1
J.J. Rhoades was not named as a defendant as of
Plaintiffs’ First Amended Complaint, filed on March 2, 1994.
Plaintiffs stipulated to the dismissal with prejudice of Marvin
Edwards and Linus Wright as defendants on July 26, 1996.
Plaintiffs entered into an agreed order dismissing with prejudice
all claims against the Boy Scouts of America and Circle Ten
Council, Inc. Boy Scouts of America on October 11, 1996.
2
The names of the minor victims were changed to protect
their identities for the purposes of filing this action. The
initials of the boys’ actual names are used to identify them in
depositions and affidavits.
2
1681, and Texas tort law. The plaintiffs in this action later
amended their complaint to add a claim under the Constitution of
the state of Texas.
The district court dismissed the plaintiffs’ Title IX claim
because it concluded that same-sex sexual harassment was not
actionable under Title IX. The district court also dismissed the
plaintiffs’ claims brought under Texas tort law and claims for
damages under the Texas Constitution, leaving only the § 1983
claim intact. On November 24, 1995, a second lawsuit was filed
in federal district court by other minor victims of McGrew. This
second lawsuit, brought by or on behalf of Plaintiffs-Appellants
Bob Black, Bill Black, William White, and George Green, alleged
the same facts and asserted identical claims as that brought by
the Does, Ms. Roe, and Ms. Smith. On February 20, 1996, it was
consolidated with the first-filed action.3
On July 30, 1996, defendants DISD and Barbara Patrick, who
was the principal of J.J. Rhoades at the time of the alleged
abuse (collectively, “Defendants”), filed a motion for summary
judgment on Plaintiffs’ remaining § 1983 claims, arguing that (1)
no grounds existed upon which DISD could be held liable for
McGrew’s misconduct, and (2) Patrick was entitled to qualified
immunity. On October 29, 1996, the district court granted
summary judgment in favor of Defendants on all of Plaintiffs’
3
We will refer collectively to the plaintiffs from both
lawsuits as “Plaintiffs.”
3
§ 1983 claims. The court entered a final judgment on all claims
in favor of Defendants on March 5, 1997. Plaintiffs timely
appealed to this court.
We affirmed the district court’s grant of summary judgment.
See Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211 (5th Cir. 1998)
(“Doe I”). This court held that DISD neither delegated to school
principals the authority to create policies to address
allegations of sexual abuse nor acted with deliberate
indifference towards its students’ constitutional rights by
failing to adopt an official policy to protect against the sexual
abuse of students. See Doe I, 153 F.3d at 216-17. We also
affirmed the district court’s determination that Patrick was
entitled to qualified immunity because although she had notice of
the abuse as of the spring of 1986,4 she did not act with
deliberate indifference. See id. at 218-19. With respect to
Plaintiffs’ Title IX claim, we decided that pursuant to the
Supreme Court’s decision in Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75 (1998), the Plaintiffs’ complaint had stated a
valid Title IX claim against DISD. See id. at 219. However,
because we determined that there was insufficient evidence in the
record to permit an adjudication on the merits of that claim, we
4
We based this conclusion on undisputed evidence that
J.H., a second-grade student at the time, told Patrick that
McGrew had fondled him in the spring of 1986.
4
remanded the case to the district court for further proceedings.
See id. at 219-220. In so doing, we noted in dicta that
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.
See id. at 220 n.8.
On September 30, 1998, DISD filed a motion for summary
judgment on Plaintiffs’ Title IX claim. DISD argued that it
could not be held liable under Title IX because Patrick was not a
supervisory official, did not have actual notice of abuse, and
did not act with deliberate indifference. In response,
Plaintiffs contended that Patrick was a supervisory official with
the power to stop the abuse, had actual notice of abuse both in
1984 and in 1986, and responded with deliberate indifference in
both instances. In support of their opposition, Plaintiffs
submitted evidence that had been submitted for the previous
summary judgment motion and new evidence in the form of (1) a
1999 affidavit from D.D.P., a plaintiff; (2) a 1999 deposition by
Bettye Burrell, Patrick’s former secretary; (3) a 1999 affidavit
by John McGrew; and (4) a 1999 deposition of Robert Johnston,
Special Assistant to the Superintendent for Administration of
DISD.
5
The district court granted DISD’s motion on April 20, 1999.
In its memorandum decision, the district court assumed without
deciding that Patrick was the appropriate person to be notified
in order for DISD to be liable under Title IX. The court then
discounted D.D.P.’s 1999 affidavit as a subsequent affidavit
contradicting prior testimony without explanation, and held that
Plaintiffs had offered insufficient evidence to create a genuine
issue of material fact as to whether Patrick had actual notice of
McGrew’s misconduct in 1984. Furthermore, the court found that
there was no evidence that any of the DISD officials and staff
members who had allegedly been told of abuse prior to 1986 had
communicated this information to Patrick. Finally, the court,
citing our finding for the purposes of § 1983 in Doe I, held that
Patrick’s actions in response to the 1986 report of abuse did not
rise to the level of deliberate indifference. On the same day,
the district court entered a final judgment in favor of DISD and
awarded it costs. Plaintiffs timely appeal.
II. DISCUSSION
Plaintiffs argue on appeal that the district court
improperly disregarded a 1999 affidavit, and incorrectly
concluded that Plaintiffs’ evidence failed to create a genuine
issue of material fact as to Patrick’s deliberate indifference.
We disagree.
6
A. Standard of Review
We review the grant of summary judgment de novo, applying
the same criteria employed by the district court in the first
instance. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th
Cir. 1994). To prevail on summary judgment, a movant must
demonstrate that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986). If the movant
succeeds in making that showing, the nonmoving party must set
forth specific facts showing a genuine issue for trial and not
rest upon the allegations or denials contained in its pleadings.
See FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256-57 (1986). We review the evidence, and the
inferences to be drawn therefrom, in the light most favorable to
the non-moving party. See Lemelle v. Universal Mfg. Corp., 18
F.3d 1268, 1272 (5th Cir. 1993).
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
7
financial assistance . . . .” 20 U.S.C. § 1681(a). Although the
statute provides for administrative enforcement of this mandate,
the Supreme Court has held that Title IX is also enforceable
through an implied private right of action. See Cannon v. Univ.
of Chicago, 441 U.S. 677 (1979). In Franklin v. Gwinnett County
Public Sch., 503 U.S. 60 (1992), the Supreme Court subsequently
established that monetary damages are available in such an
action. See 503 U.S. 60. Franklin further stated that sexual
harassment of a student by a teacher constitutes actionable
discrimination for the purposes of Title IX. See id. at 75.
In Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280
(1998), the Supreme Court set forth the standard under which a
school district may be held liable for damages under Title IX for
a teacher’s sexual harassment of a student. The Court held that
in cases like this one that do not involve official
policy of the recipient entity, . . . a damages remedy
[against the school district] will not lie under Title
IX unless an official who at a minimum has authority to
address the alleged discrimination and to institute
corrective measures on the recipient’s behalf has
actual knowledge of discrimination in the recipient’s
programs and fails adequately to respond.
524 U.S. at 290. The Supreme Court further decided in Gebser
that “the response must amount to deliberate indifference to
discrimination” for the school district to be liable in damages.
Gebser, 524 U.S. at 290. As this court noted in Doe I, “[t]he
deliberate indifference standard is a high one.” Doe I, 153 F.3d
at 219 (applying deliberate indifference standard for purposes of
8
§ 1983 qualified immunity analysis). Officials may avoid
liability under a deliberate indifference standard by responding
reasonably to a risk of harm, “even if the harm ultimately was
not averted.” Farmer v. Brennan, 511 U.S. 825, 844 (1994); see
also Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 648
(1999) (defining deliberate indifference for purposes of finding
school district liability under Title IX for student-to-student
harassment as when the “response to the harassment or lack
thereof is clearly unreasonable in light of the known
circumstances”). Moreover, determining what constitutes
appropriate remedial action for allegations of discrimination in
Title IX cases “‘will necessarily depend on the particular facts
of the case . . . .’” Rosa H., 106 F.3d at 660-61 (quoting
Waltman v. Int’l Paper Co., 875 F.2d 468, 479 (5th Cir. 1990)
(Title VII decision)).
Thus, to defeat Defendants’ motion for summary judgment,
Plaintiffs must adduce evidence sufficient to create a genuine
issue of material fact that Patrick (1) had authority to address
the alleged abuse by McGrew and to institute corrective measures
on DISD’s behalf, (2) had actual notice of discrimination, and
(3) acted with deliberate indifference. We agree with the
district court that Plaintiffs have failed to create a genuine
issue of material fact either with regard to Patrick’s actual
notice in late 1984 or with regard to whether Patrick’s actions
9
in response to the 1986 report amounted to deliberate
indifference.
1. Supervisory Official with the Power to End the Abuse
As the district court noted, neither the Supreme Court nor
this court has decided which individuals must have known of
allegations of sexual abuse in order to support a finding that
the school district had actual notice of discrimination. See
Rosa H., 106 F.3d at 660 (limiting liability to cases in which
“those school employees in the chain of command whom the school
board has appointed to . . . remedy the wrongdoing themselves”
had actual notice, without naming specific individuals). We
agree with the district court that it is unnecessary to determine
whether Patrick, as the principal of J.J. Rhoades, had the
authority to take corrective action to end McGrew’s abuse of
students under DISD policies during the relevant period.
Instead, we assume without deciding that Patrick was an official
with the power to remedy discrimination on behalf of DISD for the
purposes of determining whether Patrick had actual notice of
discrimination and acted with deliberate indifference. We now
turn to that inquiry.
2. Actual Notice
10
Whether an official had actual notice is a question of fact.
See Farmer, 511 U.S. at 842. Thus, the question of whether
Patrick had actual notice may be resolved as a matter of law
where, as here, the facts are not in dispute. See
Olabisiomotosho v. City of Houston, 185 F.3d 521, 527-28 (5th
Cir. 1999) (finding no genuine issue of material fact as to
actual notice). Plaintiffs contended before the district court
that Patrick had actual notice that McGrew was abusing male
students (1) in late 1984, when D.D.P., a plaintiff in this
action, reported to her that McGrew had touched his genitals in
the lunchroom and had touched him on several occasions in
McGrew’s classroom, and (2) in the spring of 1986, when J.H.
reported that McGrew had fondled him while he was bringing McGrew
a note from another teacher. The district court found that
Plaintiffs failed to create a fact issue as to whether Patrick
had actual notice in 1984, but concluded that Patrick had notice
in 1986. Plaintiffs appeal the first finding, and DISD complains
of the second. We address each finding in turn.
a. 1984
In support of the contention that Patrick had notice in
1984, Plaintiffs submitted “new” evidence in the form of an
11
affidavit by D.D.P.,5 dated January 23, 1999 (“1999 affidavit”).6
The 1999 affidavit is D.D.P.’s third recounting under oath of
McGrew’s abuse and the events that followed. In January 1988,
D.D.P. swore out an affidavit before a Dallas police officer
(“1988 affidavit”). He stated that in late November 1984, McGrew
touched his genitals in the lunchroom. D.D.P. further stated
that after this occurred, he “went down to the office and told
Ms. Patrick and Mr. Beckham about what happened.”
D.D.P. was subsequently deposed in 1996. In his deposition,
D.D.P. stated that McGrew had touched his genitals in the
lunchroom, and that McGrew had also abused him several times in
McGrew’s classroom. He further stated that he told the
administrative staff in Patrick’s office of McGrew’s act, but
5
D.D.P. is now twenty-two years old, and swore out the
1999 affidavit using his full name. For the sake of consistency,
however, we will continue to refer to him as D.D.P.
6
Plaintiffs also submitted the 1999 deposition of Bettye
Burrell, Patrick’s former secretary. Burrell testified that
Patrick generally left her door open, and that Burrell was
located about six feet from Patrick’s office. Plaintiffs
introduced this evidence in conjunction with D.D.P.’s 1996
deposition testimony stating that he told Patrick’s office staff
that McGrew had abused him, and that he could see Patrick talking
on the phone in her office because her door was open at the time.
Plaintiffs maintained before the district court that the sum of
this evidence demonstrated that D.D.P. could have rationally
believed that Patrick heard him when he reported the abuse to
Patrick’s office staff. The district court concluded that this
evidence was speculative and thus insufficient to create a
genuine issue of material fact. Plaintiffs do not explicitly
challenge this conclusion on appeal, but argue that Burrell’s
deposition, along with McGrew’s 1999 affidavit and Johnston’s
1999 deposition, constitutes “powerful additional evidence”
supporting a denial of summary judgment.
12
that Patrick was actually in her office, talking on the phone, at
the time. When asked, “You never actually had a conversation
with Ms. Patrick about what Mr. McGrew did to you, did you?”
D.D.P. answered, “No.” D.D.P. also stated that he never put his
accusations in writing.
The 1999 affidavit asserts that D.D.P.’s 1988 affidavit, in
which he stated that he told Patrick that McGrew had abused him,
is accurate; and that D.D.P.’s 1996 deposition, in which he
stated that he told the people in Patrick’s office but not
Patrick herself that McGrew had abused him,7 is not. In the 1999
affidavit, D.D.P. states that the incident was fresh in his
memory in 1988, and that he gave a truthful statement at that
time. D.D.P. then explains that after the incident with McGrew,
D.D.P. “tried hard over the years not to think about it and put
it out of my head,” and therefore that by 1996, he “did not have
enough memory of what really happened to allow [him] to testify
fully and accurately about what Mr. McGrew did or [his] report of
what [McGrew] did.” D.D.P. further asserts in the 1999 affidavit
that he was not shown his 1988 affidavit during his deposition,
and that he was not asked during his deposition why his testimony
had changed between 1988 and 1996. The affidavit concludes that,
7
The district court concluded that there was no evidence
that the office staff, or any other school personnel,
communicated allegations of abuse by McGrew to Patrick.
Plaintiffs do not challenge this conclusion on appeal.
13
as a result, the 1988 affidavit, not the 1996 deposition, is an
accurate account of his communication with school personnel.
The district court ruled that the 1999 affidavit
contradicted the 1996 deposition testimony, and cited authority
from our circuit holding that a plaintiff may not manufacture a
genuine issue of material fact by submitting an affidavit that
impeaches prior testimony without explanation. This authority
stands for the proposition that a nonmoving party may not
manufacture a dispute of fact merely to defeat a motion for
summary judgment. See S.W.S. Erectors, Inc. v. Infax, Inc., 72
F.3d 489, 495 (5th Cir. 1996) (citations omitted); Thurman v.
Sears, Roebuck & Co., 952 F.2d 128, 136 n.23 (5th Cir.), cert.
denied, 506 U.S. 845 (1992) (citations omitted); Albertson v.
T.J. Stevenson & Co., Inc., 749 F.2d 223, 228, 233 n.9 (5th Cir.
1984). As some of our sister circuits have observed,
If a party who has been examined at length on
deposition could raise an issue of fact simply by
submitting an affidavit contradicting his own prior
testimony, this would greatly diminish the utility of
summary judgment as a procedure for screening out sham
issues of fact.
Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d
Cir. 1969) (citations omitted); see also Camfield Tires, Inc. v.
Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983)
(stating that courts should scrutinize conflicts between
affidavit and deposition testimony and only grant summary
judgment when those conflicts raise only sham issues); Radobenko
14
v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975)
(quoting Perma Research).
Plaintiffs argue on appeal that the district court erred in
disregarding this 1999 affidavit and the 1988 affidavit that it
endorses. They contend that the 1999 affidavit explained why the
1996 deposition testimony differed from the version of events
contained in the 1988 affidavit, and thus that the rule should
not have been applied.8 We disagree.
Instead, we are convinced that the explanation offered by
the 1999 affidavit was insufficient to create a genuine issue of
material fact on the issue of whether D.D.P. directly told
Patrick of the abuse by McGrew. There is no allegation that
D.D.P. was not represented by counsel at the 1996 deposition; he
was thoroughly questioned about his communications with school
personnel; and the testimony was unequivocal. Cf. Clark v.
Resistoflex Co., A Div. of Unidynamics Corp., 854 F.2d 762, 766-
8
Plaintiffs also argue that the application of the rule
subverts Federal Rule of Evidence 803(5). See FED. R. EVID.
803(5) (creating a hearsay exception for recorded recollections,
defined as “[a] memorandum or record concerning a matter about
which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and
accurately, shown to have been made or adopted by the witness
when the matter was fresh in the witness’ memory and to reflect
that knowledge correctly.”). We are unpersuaded by this
argument. Rule 803(5) pertains to the admissibility of recorded
recollections, and the admissibility of the 1988 affidavit has
not been disputed. Plaintiffs cite no authority for the
proposition that Rule 803(5) is frustrated when a court declines
to consider contradictory evidence contained in a recorded
recollection in the form of an affidavit, and our research has
likewise uncovered none.
15
67 (5th Cir. 1988) (summary judgment based on fact issue raised
by subsequent affidavit was appropriate when attorney only asked
one question on subject at deposition and thus affidavit
supplemented deposition testimony). Furthermore, in his 1996
deposition, D.D.P. responded to certain questions by stating that
he could not answer because he did not recall what had happened.
Thus, he knew that if he did not remember whether a particular
event had occurred or the details of how that event occurred, he
could say, “I do not recall” in response to a question regarding
that event during his deposition. However, he failed to do so
when asked whether he directly told Patrick about the abuse.
Although we sympathize with D.D.P.’s desire to eradicate the
painful memory of the abuse, we cannot say that D.D.P.’s
assertions in a 1999 affidavit that he succeeded in doing so by
1996 create an issue of fact as to whether he told Patrick that
McGrew had abused him in 1984. Thus, in the absence of a dispute
of fact, the district court correctly held as a matter of law
that Patrick did not have actual notice in 1984.
b. 1986
The undisputed summary judgment evidence demonstrates that
in the spring of 1986,9 Sandra Thomas reported to Claude Bandy,
9
The district court noted that Patrick testified at
McGrew’s trial that J.H’s complaint was brought in 1986, but
testified at her deposition for this action that the complaint
was brought in 1987. Like the district court, we assume for the
purposes of this discussion that the incident occurred in 1986.
16
the parent ombudsman for J.J. Rhoades, that her son J.H. claimed
that McGrew had fondled him. The evidence further shows that
Bandy informed Patrick of J.H.’s allegation, and that Thomas
spoke to Patrick by telephone. After speaking to his mother on
the phone, Patrick called J.H. down to her office and asked him
to describe to her what happened. He reported that his teacher
had sent him into McGrew’s classroom with a note, and that McGrew
had touched him “in his private place” while he was standing at
McGrew’s desk. Thomas came to J.J. Rhoades the next day to meet
with Patrick and McGrew. Prior to the meeting with McGrew,
Patrick spoke to Thomas and J.H.
Based on this undisputed evidence, the district court
concluded that Patrick had actual notice of an allegation of
sexual abuse in spring 1986. In its Brief of Appellee, DISD
argues that knowledge of a mere allegation of abuse does not
constitute actual knowledge that a student is being abused. DISD
also contends that “[a]n allegation that is investigated and
determined to be untrue should not form the basis of actual
knowledge even if that determination is tragically flawed.” We
decline to address these arguments because the facts of this case
do not require us to decide whether Patrick had actual notice of
discrimination. Instead, we assume arguendo that she did, and
proceed to the question of whether Patrick’s actions in response
17
to J.H.’s 1986 allegation of sexual abuse by McGrew amounted to
deliberate indifference.
3. Deliberate Indifference
Whether an official’s response to actual knowledge of
discrimination amounted to deliberate indifference likewise may
appropriately be determined on summary judgment. See Davis, 526
U.S. at 649; Doe I, 153 F.3d at 219 (deciding on summary judgment
that school officials were entitled to qualified immunity because
they did not act with deliberate indifference). As discussed
above, the undisputed summary judgment evidence demonstrates that
Patrick spoke to Sandra Thomas on the phone, and told her to come
to school for a meeting with Patrick and McGrew. When Thomas and
J.H. arrived at school, Patrick spoke to both of them. At some
point, Patrick also asked J.H. to repeat his accusation to
McGrew. During the meeting, Patrick and Thomas both asked McGrew
directly if he had fondled J.H., and he denied it.10 At the
close of the meeting, Patrick told Thomas that she would make
sure that J.H. was not sent to McGrew’s classroom again. Once
Thomas had left, Patrick told McGrew that the accusation was very
10
Patrick testified that McGrew denied the allegation and
offered no explanation for why the report might have been made.
McGrew stated in his 1999 affidavit that he told Thomas and
Patrick that he had not “touched” J.H., but had spanked him, and
that J.H. was “mad” because of the spanking. We think that these
slightly different versions do not create an issue of fact as to
deliberate indifference.
18
serious, and led him to understand that he should not repeat the
behavior that made the child accuse him of abuse. McGrew
remembers this warning somewhat differently: “She told me the
school does not put up with the kind of behavior I had been
accused of and that if it really did take place, I would be dealt
with.” Patrick also spoke to J.H.’s teacher, who confirmed that
she had sent him to McGrew’s classroom with a note, and who
stated that J.H. had not mentioned any misconduct by McGrew to
her when he returned to her classroom.
Plaintiffs argue that the evidence demonstrates that
Patrick’s investigation was a sham, and that, in fact, she
desired to cover up J.H.’s allegation of sexual abuse in order to
protect J.J. Rhoades’ reputation. In support of that argument,
Plaintiffs point to evidence that Patrick asked another student,
W.J.H., during the 1983-84 school year whether McGrew had touched
him inappropriately. In addition, Plaintiffs submitted evidence
that Patrick informed Thomas that McGrew was a good teacher and
that Patrick knew J.H. was lying; that Patrick asked Thomas to
not discuss J.H.’s accusations with any other teachers or
parents; and that Patrick acted “nasty” towards Thomas. Other
evidence indicated that Patrick told McGrew, prior to the meeting
with Thomas, “McGrew, I don’t think [the accusation is] true, but
we have to meet with the parent and discuss it.” McGrew also
described Patrick’s demeanor towards him as “supportive.”
Finally, Plaintiffs submitted the deposition testimony of Robert
19
L. Johnston, Special Assistant to the Superintendent for
Administration of DISD, who testified that he found no documents
referring to McGrew or Plaintiffs in the context of sexual abuse
allegations in files kept at J.J. Rhoades. From this, Plaintiffs
would have us infer that Patrick intentionally failed to document
J.H.’s allegation so that the report would be easier to cover up.
Plaintiffs also contend that Patrick was deliberately
indifferent because she failed to perform certain actions
pursuant to her investigation of J.H.’s allegation. In
particular, Plaintiffs point to the fact that Patrick failed to
report J.H.’s allegation to Child Protective Services, failed to
tell McGrew not to spank a child again, failed to monitor McGrew
further or make him attend additional training, and failed, in
fact, to ever raise the issue of sexual abuse with him again
until his arrest. Thus, Plaintiffs argue, they have presented
sufficient evidence of deliberate indifference to preclude a
grant of summary judgment in favor of DISD.
However, even drawing all reasonable inferences in favor of
Plaintiffs, we must agree with the district court that Plaintiffs
have failed to create a genuine issue of material fact. Patrick
interviewed J.H., spoke with his mother, spoke with J.H.’s
teacher, spoke with McGrew and warned him either that he would be
“dealt with” if the accusations were founded or that he should
avoid acting in a way that could be misconstrued. She concluded,
in error, that J.H.’s allegation was not true, and her erroneous
20
conclusion had tragic consequences. However, we cannot say on
the facts before us that these actions, though ineffective in
preventing McGrew from sexually abusing students, were an
inadequate response to J.H.’s allegation. See Doe I, 153 F.3d at
219 (“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.”) (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443,
456 n.12 (5th Cir.) (en banc), cert. denied sub nom Lankford v.
Doe, 513 U.S. 815 (1994)); cf. Davis, 526 U.S. at 648 (refusing
to hold that “administrators must engage in particular
disciplinary action” to avoid liability). As a result, we
conclude that the district court correctly granted summary
judgment in favor of DISD.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment.
21