Doe Ex Rel. Doe v. Dallas Independent School District

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