Floyd v. Waiters

PUBLISH

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

-------------------------------------------

No. 94-8667

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D. C. Docket No. 91-CV-47-2-MAC (WDO)

CAROL FLOYD, CARLA FLOYD, MARY ANN DRAKE,

Plaintiffs-Appellants,
Cross-Appellees,

versus

IRIS WAITERS, Security Chief, Board of Public
Education and Orphanage for Bibb County,
WILLIAM DECKER BOOKER, Security Guard, Board
of Public Education and Orphanage for Bibb
County,

Defendants,

KENNETH BRONSON, Security Guard, Board of
Public Education and Orphanage for Bibb
County, JOHN NICHOLSON, Head of Operations,
Board of Public Education and Orphanage for
Bibb County, STEPHEN MASSEY, President, Board
of Public Education and Orphanage for Bibb
County, THOMAS HAGLER, Superintendent, Board
of Public Education and Orphanage for Bibb
County, HARRY TINKER,

Defendants-Appellees,
Cross-Appellants.
 ----------------------------------------------------------------

Appeals from the United States District Court
for the Middle District of Georgia

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(January 20, 1998)

Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

In 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.

2
 Background

Carol 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

3
security guard for the BOE, sexually harassed them.1 As a

result,

1
The district court concluded and found that these facts were
undisputed: In February 1989, fourteen-year-old Carla Floyd was
forced by Booker into his car and taken to an abandoned house
where Booker ordered her to remove her clothes. She refused to
comply, however; and Booker acquiesced. A week later, Booker,
who was supposed to be driving Carol Floyd (Carla’s twin sister) to
the Youth Development Center from school, took Carol to the house
and raped her.
In March 1989, Booker was fired from his job based on the
charges made against him by Plaintiffs. He entered a guilty but
mentally ill plea and served three years of a ten-year prison sentence
for false imprisonment and sexual assault of one in custody.
Iris Waiters (Waiters), Booker’s supervisor, was charged with
obstruction of justice in relation to the crimes involving Plaintiffs.
Waiters was also fired in March 1989. He was acquitted of the
criminal charge but was stripped of his police officer's certification.
No allegations or proof of quid pro quo harassment, such as sex
for grades, is before us.

4
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

Defendants Massey, Hagler, Nicholson, Tinker, and

Bronson (collectively “Defendants”) filed a motion for summary

2
Plaintiffs sued Booker; Waiters; John Nicholson, Director of
Operations; Harry Tinker, former Director of Operations; Thomas
Hagler, former BOE Superintendent of Schools; the school district
through Stephen Massey, former President of the BOE; and Kenneth
Bronson, BOE security guard. Tinker was sued only in his individual
capacity and Massey was sued only in his official capacity as
President of the BOE; the remainder of the Defendants were sued in
their official and individual capacities. On appeal, however, Plaintiffs
have not argued that the district court erred by dismissing the claims
against the Defendants in their individual capacities.
Plaintiffs claim that Defendants are liable because they knew
Booker was abusing his position as a security guard at the school,
but they did nothing to stop him. Except for Waiters, who is not a
party to this appeal, no evidence shows that the Defendants had
knowledge of Booker’s misconduct. Plaintiffs say Waiters operated
the "Playhouse," an abandoned house in Bibb County that school
security guards used for illicit sex (and where Booker took Plaintiffs);
that Waiters knew of prior allegations of Booker's sexual misconduct
with minors; that male security guards customarily drove female
students alone in their cars; and that the BOE inadequately
supervised the security department.
5
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

Discussion

A. Title IX

Plaintiffs contend that they were the victims of intentional

discrimination -- based on the sexual harassment by Booker -- in

3
In response to Defendants’ motion for summary judgment,
Plaintiffs entered several items into evidence, which Defendants then
moved to strike. Defendants claim that the district court erred by
denying this motion. Because we -- even considering this evidence --
are affirming the summary judgment order, we do not consider
Defendants’ argument.
6
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).

We are not the first to write about Title IX. And some things are

now established. In Franklin v. Gwinnett County Public Schools, 112

S.Ct. 1028, 1038 (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 1037-38.

In 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

7
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.

From 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

8
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).

The main issue in this case is by what acts or, perhaps, by

whose acts does the local school district become liable to an

individual under 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.5 See also

4
The district court refused to apply common law agency principles
to a Title IX claim because under Title VII the term "employer"
includes "any agent of such a person," but under Title IX, the term
educational “program or activity" is defined as "operations of . . . [a]
school system," which does not specifically encompass the “agents”
of such an entity. Compare 42 U.S.C. §2000e(b) with 20 U.S.C. §1687;
see also Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986).
5
The court first rejected the argument that school boards should
be held strictly liable for the acts of their employees under Title IX.
Rosa H., 106 F.3d at 652. The court also stated that “Title IX does not
9
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.

We 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

contemplate a theory of recovery based purely on agency law.” Id.
at 655. In addition, the court rejected the notion that Title VII
principles of liability apply under Title IX. Id. at 656-58. In Franklin
v. Gwinnett County Public Schools, 911 F.2d 617, 622 (11th Cir. 1990),
rev’d on other grounds, 112 S.Ct. 1028 (1992), we had also said -- in
dicta -- that Title VII principles did not apply to Title IX cases; and this
point was not discussed nor declared to be error on review in the
Supreme Court. See Franklin, 112 S.Ct. at 1032 n.4.
We note that our analysis of Title IX is generally consistent with
that of Title VI -- a statutory scheme frequently considered when
interpreting Title IX. See, e.g., Cannon v. University of Chicago, 99
S.Ct. 1946, 1956-57 (1996); Davis, 120 F.3d at 1399; see generally
Nelson v. Almont Community Schs., 931 F.Supp. 1345, 1354 (E.D.
Mich. 1996) (recognizing that standards of liability under Title VI are
different from traditional agency principles or the general standards
of liability under Title VII).
By the way, we are aware that the Supreme Court has recently
granted certiorari in a Fifth Circuit case to consider the standard-for-
liability issue. See Doe v. Lago Vista Indep. Sch. Dist., (U.S. Dec. ,
1997).

10
district is to incur liability under Title IX. Rosa H. 106 F.3d at 658-59.

We cannot follow Rosa H. completely, however.

As 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.

To 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

6
"[W]here th’ offense is, let the great axe fall.” William
Shakespeare, Hamlet act 4, sc. 5.
11
notice -- that existed when the school district accepted Title IX funds

and made the “contract” not to discriminate.7 As we have said, the

relevant 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

7
At this point, we stress that what we are considering is a
“snapshot” in time, that is, what notice the BOE had during the
period at issue in this case when it accepted Title IX funding. But, the
process of accepting Title IX funding -- and, thereby, making
“contracts” not to discriminate -- is an ongoing process. As statutes
and regulations change, so too will the notice available to grant
recipients about the obligations of accepting federal funding. We
decide only the extent of liability to be imposed on the school district
in the circumstances of this case.
On March 13, 1997, the Department of Education’s Office for
Civil Rights issued a final policy guidance addressing school district
liability for sexual harassment of a student. We say nothing about
the significance of these guidelines, except to observe that they may
have significance if school districts accept Title IX funds after their
announcement.
12
 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 secondary schools.

20 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.8 See, e.g., Smith, 128 F.3d at 1020-21.

In 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

8
Without writing about the federal regulations in detail, we note
that they are consistent with this proposition. Like the statutes, the
regulations prohibit a “recipient” from permitting or performing
discrimination in any education program or activity. 34 C.F.R. §
106.31 (1989). “Recipient,” in turn, is defined as “any State or
political subdivision thereof, or any instrumentality of a State or
political subdivision thereof . . . .” 34 C.F.R. § 106.2(h) (1989). And,
the regulations define “Educational Institution” as “a local education
agency,” 34 C.F.R. § 106.2(j) (1989), which, in turn, is defined by the
code in the same manner as it is in 20 U.S.C. § 8801(18). See 20
U.S.C. § 3381 (1990); 20 U.S.C. § 2891(12) (1990). Thus, the
regulations, like the statutory provisions, direct us to state law.
13
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.

Since 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 (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.

Georgia law includes this provision:

14
 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 . . . .

Ga. 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

9
Just as federal statutes and regulations may be modified, and,
therefore, change the liability attributable to a grant recipient, we also
recognize that -- because Title IX incorporates state law -- the liability
of a school district may vary from state to state, as well as within a
state, depending upon the unique features of each state’s laws.
These differences will necessarily impact on the notice that grant
recipients have about liability when accepting Title IX funding. Thus,
in this case, we can only decide the extent of liability for the BOE
under Georgia law; we do not determine the extent of liability for all
school districts.
15
 Thus, 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

10
We recognize that each “recipient” is required to have a Title IX
employee “to coordinate its efforts to comply with and carry out its
responsibilities under [Title IX].” 34 C.F.R. § 106.8(a). But, if the
pertinent employee in Bibb County is not the superintendent, then no
such person has been made a party to this action, nor referred to by
the parties. As a result, the role of a Title IX coordinator -- again, if it
is someone in addition to the superintendent -- is not before this
court today; and we do not decide what effect, if any, notice to this
person would have on a school district’s liability under Title IX.
11
For the law to be otherwise would be cumbersome and costly
given the number of supervisors and employees within a school
system. We doubt that Congress intended to place that burden on
local school boards, that is, we doubt that the contract formed by the
school district’s acceptance of Title IX funding can be “breached” by
any employee that simply supervises another employee. If Congress
wanted to create such a scheme, then it could have done so much
more plainly.
Our concern is not merely theoretical. In many school districts
16
 We 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

-- especially with tens of thousands of students -- some supervising
positions may be five or six steps removed from the board of
education and the superintendent of schools. We do not think that
school districts, in reality, have actual knowledge -- the knowledge
to support potentially million-dollar liability for the school district --
whenever, for example, a deputy assistant director of transportation
(but no one higher-up) may know that a bus driver is harassing
someone or the foreman (but no one higher-up) of the district’s
emergency plumbing crew has knowledge of misconduct, and these
supervisors could fire (but do not) the harassers.
12
As stated above, the BOE consists of officials elected in
staggered general elections. See Ga.L. 1971, p. 3926. As elected
officials, such persons commonly can be, and (we expect) are,
contacted easily and regularly to report misconduct by school
employees. In addition, the BOE holds public meetings at which
parents or citizens can raise their concerns about the schools. See,
e.g., Hatcher v. Board of Pub. Educ. and Orphanage for Bibb County,
809 F.2d 1546, 1557 (11th Cir. 1987) (discussing how parents
17
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

protested school closings at public Board meetings).
13
While we have focused on the notice to be provided to the
superintendent of schools, we recognize that -- as a matter of state
law -- the conduct (or inaction) of the local school board will often be
critical to the school district’s liability. Under Georgia law, a
superintendent:
[M]ay temporarily relieve from duty any teacher, principal,
or other employee having a contract for a definite term for
[misconduct], pending hearing by the local board in those
cases where the charges are of such seriousness . . . that
such . . . employee could not be permitted to continue
[work] . . . without danger of . . . serious harm to the
school, its mission, pupils, or personnel.
Ga. Code Ann. § 20-2-940(g). The superintendent, however, may not
fully suspend or terminate an employee for misconduct, which action
probably is the school district’s method for correcting violations of
Title IX. Instead, only the local school board may perform these acts.
See Ga. Code Ann. § 20-2-940(a), (e), (f). As a result, school district
liability for most of its employees’ misconduct is necessarily tied to
the acts of the local school board itself because, in Georgia, a lower-
ranking supervisor may not have the authority to force the end of
misconduct and violations of Title IX.
18
a school district and makes the “contract” -- is the only party that can

“breach” the terms of the Title IX “contract.”

It 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 language 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

14
Plaintiffs have shown no evidence of deliberate ignorance.
Therefore, we do not decide today whether liability might result if a
superintendent or school board were consciously and deliberately
ignorant of sexual harassment.
19
sexual harassment and then fail to take reasonable steps to end the

abuse.

In 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.

15
In fact, Plaintiffs have not demonstrated that any of the
Defendants-Appellees knew about the Playhouse and the activities
conducted there. Plaintiffs have only shown that Booker, Waiters
(who were at least three levels removed from the superintendent of
schools position), and a few others (who are not parties to this
appeal) had knowledge of these activities. The record amply
demonstrates that these men took great pains to ensure that their
activities -- which were potentially crimes in Georgia -- remained
secret. As such, we conclude that the BOE cannot be held liable
under Title IX.
20
B. Section 1983

Plaintiffs 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.,

98 S.Ct. 2018, 2037-38 (1978); see Pembaur v. City of Cincinnati, 106

S.Ct. 1292, 1297 (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, 98 S.Ct. at 2037-38; Pembaur, 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

21
‘policy’ 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.” 106 S.Ct. at 1298.

As 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.

1. Policy

22
 In 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 particular 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.” 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

23
court. See Brown, 923 F.2d at 1480 (citing Jett v. Dallas Indep. Sch.

Dist., 109 S.Ct. 2702, 2723 [1989]); Mandel, 888 F.2d at 793.

Here, Plaintiffs contend -- in essence -- that Waiters, Tinker, and

Nicholson had final policymaking 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.

Other 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.

24
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, Teachers Unit v. Board of Pub. Educ. For the City of

Savannah and the Cty. Of Chatham, 231 Ga. 806, 807-08 (1974).

As 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, 108 S.Ct. 915, 928 (1988). Nothing

evidences that these Defendants were not “constrained by official

25
policies and [that their actions were] not subject to review.” Scala,

116 F.3d at 1399 (quoting Mandel, 888 F.2d at 792).

And, at least one example discussed by Plaintiffs about Tinker’s

(so-called) policymaking 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

16
Also, the BOE’s chain of command prevented these Defendants
from having final policymaking authority over the security
department. Waiters was supervised by the Director of Operations
(Tinker and Nicholson); who were, in turn, supervised by the
Associate Superintendent of Finance and Support; who was, in turn,
26
 Thus, we conclude that the district court did not err by finding

and concluding that Waiters, Tinker, and Nicholson had no final

policymaking authority; section 1983 liability cannot be based on this

theory.

2. Custom

The 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.” 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

supervised by the Superintendent of Schools; who ultimately
reported to the BOE. This structure demonstrates that the security
department did not operate independently of the BOE and that the
policies of these Defendants were ultimately subject to review by the
BOE.
27
 municipal policy, is so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.”

923 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, 109 S.Ct. 1197, 1203 (1989).

In 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

17
Tinker wrote an eight-page booklet when he was Director of
Operations which, among other things, said that security guards
should only transport students after receiving a written request from
the principal and only with school administrator or teacher
28
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, 109 S.Ct. at 1203.

On appeal, Plaintiffs argue that the district court mis-

characterized 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

accompaniment. The security department, however, never followed
the procedures.
18
Plaintiffs also argue that the district court erred by finding no
causal link between the custom of permitting unsupervised
transportation of students and Plaintiffs’ injuries. This argument is
unavailing; Plaintiffs have shown no sufficient causal link between
that custom and their injuries. See Canton, 109 S.Ct. at 1203; Wyke
v. Polk County Sch. Bd., 129 F.3d 560, 568 (11th Cir. 1997); Young v.
City of Augusta, Ga., 59 F.3d 1160, 1171 (11th Cir. 1995); Parker v.
Williams, 862 F.2d 1471, 1477 (11th Cir. 1989).
29
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.

As 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

policymaking 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

19
We have been cited to no evidence, however, that other
schoolgirls -- besides the Plaintiffs themselves -- were ever taken to
the Playhouse by employees of the security department.
20
Plaintiffs stress Waiters’s involvement in the activities of the
Playhouse to support their characterization of the custom in this
case. Waiters’s participation, however, is not particularly significant.
Liability attaches only where the municipality -- acting through its
policymaking officials -- allows the improper custom to occur. See
Young, 59 F.3d at 1171; Brown, 923 F.2d at 1481. While Waiters may
have been involved in the activities of the Playhouse, he was not --
as discussed above -- a policymaking official.
30
“so permanent and well settled as to constitute a ‘custom 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.

3. Failure to Train and to Supervise

Plaintiffs 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, 109 S.Ct. at 1204-05. But, in

31
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.

Walker 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.

Applying the reasoning of Sewell and Walker to the facts of this

case, we conclude that the BOE did not act with deliberate

32
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, 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

AFFIRMED.22

21
Plaintiffs also seek liability against Hagler, Nicholson, Tinker, and
Bronson in their officials capacities. But, local government liability
can result only from conduct by policymaking officials. Canton, 109
S.Ct. at 1205. For the reasons discussed above, none of these
parties are policymaking officials so as to support municipal liability.
22
Plaintiffs also claim the district court erred by: (1) ruling that
33
Booker had a Fifth Amendment privilege for acts of sexual
misconduct outside the incidents involving Plaintiffs; (2) ordering a
psychiatric report and evaluation of Booker to remain sealed; and (3)
granting BOE's motion for a protective order. Discovery orders are
subject to review for abuse of discretion. Farnsworth v. Proctor &
Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). The district court
did not abuse its discretion in its rulings on these discovery matters.
In addition, Defendants cross-appeal the district court's denial
of their motion to strike certain items of evidence filed by Plaintiffs
in response to Defendants' motion for summary judgment. Plaintiffs
say the evidence, which consists of police reports, witness
statements, newspaper articles, transcripts of state and
administrative proceedings, and affidavits, supports their contention
that BOE security guards used the Playhouse to have illicit sex with
schoolgirls and that the BOE should have known of Booker's
proclivities.
The district court granted Defendants' motion for summary
judgment after reviewing all of the contested evidence. In the light
of the fact that we affirm that summary judgment, we need not
discuss the question presented and dismiss Defendants' cross-
appeal as moot.
34