United States Court of Appeals,
Fifth Circuit.
No. 93-2043.
Lee Douglas HAGAN, et al., Plaintiffs-Appellees,
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants,
Eddie Orum, III, Defendant-Appellant.
April 27, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Plaintiffs-Appellees in this case are three former students of
Wheatley High School (WHS) in Houston, Texas, and their mothers.
These students allege that they were sexually molested by their
former high school coach, Tommy Reaux. The students and their
mothers filed suit against several defendants, including the
principal of WHS, Eddie Orum, III, for failing to prevent Reaux's
abuse. Orum now appeals the district court's denial of his motion
for summary judgment based on qualified immunity. We reverse.
I.
In reviewing a denial of summary judgment we must consider the
facts in the light most favorable to the non-movants, the
Plaintiff-Appellees in this case (collectively, the "students").
Doe v. Taylor Independent School District, 15 F.3d 443, 446 n. 1
(5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 70, 130 L.Ed.2d
25 (1994).
1
On September 12, 1989, Appellee Roland Major informed several
WHS teachers that Reaux had pinched and patted him on the buttocks.
One of these teachers sent Major to Appellant Orum, who interviewed
Major and had him make a written statement. Orum then met with
Reaux, who admitted that he had patted Major on the behind. Reaux
told Orum that he had been trying to persuade Major to rejoin the
football team and that the pat had simply been a "coaches'
gesture." That same day, Orum met with Major and Reaux together.
At this meeting, Orum told Major that because there were no
witnesses to the incident, nothing further could be done.
Orum did not personally contact Major's mother to tell her of
the incident. Later that afternoon, Reaux approached Major and
asked if he could give Major a ride home after school so that Reaux
could talk to Major's mother. Accompanied by another teacher,
Reaux and Major went to Major's home. Reaux told Major's mother
that he had patted her son on the buttocks and that Reaux, Major
and Orum had already met and discussed it. At some later time,
Orum warned Reaux that he should be careful in his gestures with
students. Aside from this warning Orum did nothing further about
Major's complaint.
On October 25, 1989, Appellee Cleveland McCord reported to
several teachers that he had been having sexual relations with
Reaux. One of these teachers took him to speak to Orum. Orum met
separately with McCord and with Reaux, then met with them together.
In Reaux's presence, Orum had McCord make a written statement.
Orum also separately questioned Reaux, who denied McCord's
2
allegations. Later that day, Orum tried to telephone McCord's
mother, but could not reach her because the telephone number was
either disconnected or incorrect. Orum contacted an official with
the Houston Independent School District (HISD) and relayed the
information McCord had given him. The HISD instructed Orum to get
statements from McCord and Reaux and to prepare a written report.
The HISD also told Orum that William Morgan, the HISD District IX
Superintendent, would begin an investigation. Orum sent a written
report to the HISD that day.1
Shortly afterward, Reaux approached McCord and offered him
$50.00 to say that nothing had happened. McCord took the money and
on October 26 made a new written statement withdrawing his
allegations. When Orum questioned McCord about the reason for his
change of heart, McCord told Orum that he just wanted to drop it.
Orum again contacted the HISD and informed them of McCord's new
statement. Orum told the HISD that he still considered the
situation serious and stated that he had warned Reaux that, in
spite of McCord's retraction, Orum would recommend that Reaux be
fired if there was reason to believe the original charges. At that
point, Orum intended to discontinue his active investigation but to
monitor the situation by "keep[ing] [his] eyes open."
1
In their brief, the students "question the authenticity of
these letters [to HISD] and their self serving purpose of
attempting to exonerate [Orum]." However, Orum has properly
authenticated these documents. In the face of Orum's competent
summary judgment evidence, the students' unsworn skepticism is
insufficient to raise a genuine issue of material fact as to
whether the letters are authentic. Johnston v. Houston, 14 F.3d
1056, 1060 (5th Cir.1994).
3
Several days later, McCord told Orum that he wanted to revive
his complaint. On November 1, Orum went to McCord's home to speak
to his mother. Orum informed McCord's mother of McCord's
allegations and told her that he had spoken with both McCord and
Reaux. Orum also told McCord's mother that Reaux would no longer
be allowed to be alone with students. This was apparently the
first that McCord's mother had heard of this matter and she told
Orum to hold off his investigation because she wanted to speak to
her son first. The next morning, McCord's mother visited Orum's
office, informed Orum that the relationship between Reaux and her
son had been consensual and asked Orum to stop investigating. On
that day, Orum wrote to Morgan and informed him that his
investigation had been inconclusive and that he planned to end his
inquiry unless he was instructed otherwise.
Some time in 1990, Orum was approached by Daphne Chappell, the
band teacher at WHS, who suggested that he speak with a student
named Earl Armstrong to see if Armstrong had been having problems
with Reaux. Chappell told Orum that Armstrong's youngest brother
had said that Reaux and Armstrong were having sexual relations.
Orum spoke to Armstrong and to Reaux, both of whom denied the
allegations. Orum also spoke to Armstrong's mother, who told him
only that she was concerned that the WHS football and band
departments were too aggressively vying for Armstrong's exclusive
participation. At this time, Orum believed that some of the past
allegations against Reaux might have been true, but because of the
outcome of his interviews with Armstrong, Armstrong's mother and
4
Reaux, Orum concluded that he should take no further action.
Although Orum was aware that a number of alumni and faculty
were discussing Reaux and insisting that he be fired, he was not
notified of any new concrete complaint about Reaux until 1991. On
April 23, 1991, appellant Lee Douglas Hagan reported to the campus
police, several teachers and Orum that Reaux had rubbed his inner
thigh, grabbed his penis through his pants and made a number of
suggestive comments while Hagan was in the WHS coaches' office.
After the District Attorney's Office brought formal charges against
him, Reaux was removed from his position at WHS.
In their suit in federal court, the students brought claims
under 42 U.S.C. § 1983 alleging violations of their civil rights,
a claim under 42 U.S.C. § 1985 alleging a conspiracy to violate
their civil rights, and a claim for violations of the Education for
the Handicapped Act (EHA). The district court granted summary
judgment to Orum on the EHA claim but not on the §§ 1983 and 1985
claims.
II.
We review the district court's denial of summary judgment de
novo. King v. Dogan, 31 F.3d 344, 345 (5th Cir 1994). We will
reverse the denial if "there is no genuine issue of material fact
and ... the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56.
A. 42 U.S.C. § 1983
This court recently explained that "a supervisory school
official can be held personally liable for a subordinate's
5
violation of an elementary or secondary school student's
constitutional right to bodily integrity in physical sexual abuse
cases if the plaintiff establishes that:
1) the defendant learned of facts or a pattern of inappropriate
sexual behavior by a subordinate pointing plainly toward the
conclusion that the subordinate was sexually abusing the
student; and
2) the defendant demonstrated deliberate indifference toward the
constitutional rights of the student by failing to take action
that was obviously necessary to prevent or stop the abuse;
and
3) such failure caused a constitutional injury to the student."
Taylor, 15 F.3d at 454.
Orum contends that the students have not shown that they
suffered a deprivation of their constitutional right to bodily
integrity and that the students failed to meet every prong of the
Taylor test. We do not address whether the students have shown
constitutional violations because even if they have, we conclude
that under the standard established in Taylor, Orum is entitled to
qualified immunity.2
1. Major
To avoid Orum's qualified immunity defense, Major must show
that: (1) Orum had learned of facts that pointed plainly toward a
conclusion that Reaux had been molesting students; and (2) in the
2
For this reason, we express no opinion as to whether the
rights of schoolchildren described in Doe are implicated in the
case of high school students who are no longer minors. In
addition, we take no position as to whether a student who is
above the legal age of consent can allege a constitutional
violation based on wholly consensual sexual relations with a
school teacher. For the purpose of this opinion, we will simply
assume the requisite constitutional violations.
6
face of that knowledge, Orum failed to take clearly necessary steps
to prevent Reaux's abuse of Major. This is a difficult task for
Major, who was the first to report to Orum any sexual misconduct by
Reaux. In a manner sufficient to survive summary judgment, Major
has not shown how Orum could have foreseen any problem before he
made his own complaint. At oral argument, Major's attorney
suggested that Orum should have been tipped off by rumors and
complaints from alumni and faculty. This argument is belied by the
summary judgment evidence. At most the evidence shows that Orum
heard rumors and complaints in 1990, the year after Major's
incident. Major's sole injury occurred before he spoke to Orum, so
Orum's decision not to take more action on Major's complaint could
not have caused Major further harm. Because Orum had no
information that Reaux posed a threat to students, he could not
have been deliberately indifferent.
2. McCord
McCord attempts to satisfy the first prong of the Taylor
standard by arguing that Major's complaint put Orum on notice that
Reaux was sexually molesting students. McCord contends that after
Major's complaint, Orum failed to take steps that were obviously
necessary to prevent Reaux's later abuse of McCord, manifesting
deliberate indifference.
We agree that Major's complaint brought new data about Reaux
to Orum's attention, but we do not agree that Major's allegations
put Orum on the alert for the type of abuse of which McCord
complains. In addition, given the nature of Major's complaint,
7
Orum's response was hardly indifferent. Orum interviewed both
Major and Reaux and warned Reaux to monitor the gestures he made
with students. Orum also knew that Reaux had gone to Major's home
to discuss the incident with Major's mother and had heard nothing
further from either Major or his mother. Orum's decision that no
further action on Major's complaint was warranted was not a failure
to take steps that were obviously necessary to avert harm to
potential future victims. McCord also does not suggest that his
sexual relationship with Reaux continued after he went to Orum, so
Orum's action or inaction in response to McCord's complaint cannot
have been the cause of any injury to McCord. And as we discuss
next, Orum's actions after McCord's complaint were also not
deliberately indifferent.
3. Hagan
After the complaint by McCord and the rumors about Armstrong,
Orum had undoubtedly learned of facts or a pattern of behavior that
pointed plainly toward the conclusion that Reaux was engaging in
sexual activity with WHS students. It is also obvious that the
action Orum took in response to this information was ineffective to
prevent Reaux's subsequent mistreatment of Hagan. However, simple
ineffectiveness is not enough to overcome qualified immunity.
Taylor, 15 F.3d at 458.
Orum took more than a minimal amount of action in response to
the complaints he received. He interviewed McCord, Armstrong, both
their mothers, Reaux, and other involved faculty members. Orum was
given inconsistent information by McCord, then was told by McCord's
8
mother that her son's relationship with Reaux was consensual and
that Orum should drop his investigation. Nonetheless, Orum warned
Reaux that Orum would recommend Reaux's termination if there was
reason to suspect that he had taken part in even a consensual
sexual relationship with McCord. When Orum questioned Armstrong,
Armstrong denied any sexual relationship with Reaux; Orum spoke to
Armstrong's mother anyway. Orum was not told by Armstrong's mother
that she was suspicious that Armstrong had an inappropriate
intimate relationship with Reaux but instead was told that she was
concerned that Armstrong was being pressured to join competing WHS
programs. Orum documented his investigations, reported his
findings to his superiors and requested further direction. While
the students point to extra precautions Orum could have taken that
might have pre-empted Reaux from grabbing Hagan, they have not
established that Orum did so little that he was deliberately
indifferent. See Taylor, 15 F.3d at 457-58.
The students place a great deal of emphasis on the undisputed
fact that Orum did not follow some of the procedures established in
the HISD Handbook for Principals, which recommends steps a
principal should take when a student reports a "sexual offense."
However, the students have not persuaded us that all of the
procedures listed in the Handbook were obviously necessary in light
of both the complaints Orum had received and the result of his
investigations. Thus, Orum's failure to precisely follow the
Handbook does not itself establish that Orum was deliberately
indifferent. After a careful review of the summary judgment
9
evidence, we conclude that there is no genuine dispute of material
fact over whether Orum was deliberately indifferent to Reaux's
abuse of these students. As a matter of law, Orum is entitled to
summary judgment on the basis of qualified immunity.
B. 42 U.S.C. § 1985
In their Third Amended Complaint, the students allege that
Orum and others conspired to "conceal from the public instances of
known and/or suspected sexual abuse of students by various
teachers," thus "depriving the Plaintiffs of their right to equal
protection of the laws, or equal privileges and immunities under
the laws...." In denying Orum's motion for summary judgment on
this claim, the district court found that "there is some evidence
of a cover-up by teachers and administrators" and decided that
"whether this conduct constitutes a conspiracy is best resolved
after discovery and then by a jury." On appeal, the students argue
that the evidence already presented is sufficient to create a
genuine dispute of material fact on this claim.3
In order to avoid summary judgment on their § 1985 claim, the
students must put forth evidence of " "some racial or otherwise
class-based, invidiously discriminatory animus in the conspirators'
action.' " Garrie v. James L. Gray, Inc., 912 F.2d 808, 813 (5th
Cir.1990), cert. denied, 499 U.S. 907, 111 S.Ct. 1108, 113 L.Ed.2d
218 (1991) (quoting Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct.
3
The students have not asked for additional discovery, much
less indicated why it is needed or how it would stave off summary
judgment. See Krim v. BancTexas Group, Inc., 989 F.2d 1435 (5th
Cir.1993).
10
1790, 29 L.Ed.2d 338 (1971)). In their brief, the students point
to a class consisting of an "endangered group" of "all males on the
football team and other sport teams" under Reaux's coaching and
state that Orum's behavior discriminated against students in
general, with males being at a higher risk.
The students have failed to show, or even allege, that Orum
was motivated by a class-based animus within the meaning of § 1985.
First of all, a group consisting of male athletes, male students or
all students is not the kind of class that § 1985 requires, unless
the students can establish that Orum targeted this group
specifically because of some protected common attribute, such as
race or, perhaps, gender. Bray v. Alexandria Clinic, --- U.S. ----
, ----, 113 S.Ct. 753, 759, 122 L.Ed.2d 34, 46 (1993). While it
may be conceivable that the students would be able to make such a
showing in a claim against Reaux, they have not done so against
Orum.
In addition, the students have failed to assert or offer
summary judgment evidence showing that Orum was inspired by a
discriminatory purpose. To violate § 1985, Orum must have had more
than an awareness of the consequences of his actions; he had to
have "selected or affirmed a particular course of action at least
in part "because of,' not merely "in spite of,' its adverse effects
upon an identifiable group." Id. --- U.S. at ----, 113 S.Ct. at
760-761, 122 L.Ed.2d at 47-48 (quoting Mass. v. Feeney, 442 U.S.
256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979)). The
students have not shown such a purpose.
11
In sum, the students have failed to identify a genuine dispute
over any fact material to their § 1985 conspiracy claim.
Therefore, Orum is entitled to summary judgment on the basis of
qualified immunity on this issue as well.
For the reasons given above, we REVERSE the district court's
denial of Orum's Motion for Summary Judgment and REMAND for entry
of judgment in Orum's favor and further proceedings consistent with
this opinion.
12