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Doe v. Flaherty

October 19, 2010

JOHN DOE, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF JANE DOE, A MINOR; MARTHA ROE, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF JANE DOE, A MINOR, PLAINTIFFS/APPELLEES,
v.
LAVON FLAHERTY, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT IN THE DELIGHT PUBLIC SCHOOLS; KATHALEEN COLE, INDIVIDUALLY, AND IN HER OFFICIAL CAPACITY AS PRINCIPAL IN THE DELIGHT HIGH SCHOOL; CURTIS TURNER, JR., INDIVIDUALLY, DEFENDANTS,
TANYA WILCHER, INDIVIDUALLY, DEFENDANT/APPELLANT,
JIM KIRKHAM, IN THEIR OFFICIAL CAPACITY AS THE DELIGHT PUBLIC SCHOOL BOARD; GARY WOFFORD, IN THEIR OFFICIAL CAPACITY AS THE DELIGHT PUBLIC SCHOOL BOARD; CITRONELLA DIXON, IN THEIR OFFICIAL CAPACITY AS THE DELIGHT PUBLIC SCHOOL BOARD; RICKY BUCK, IN THEIR OFFICIAL CAPACITY AS THE DELIGHT PUBLIC SCHOOL BOARD; RENIETA LEEPER, IN THEIR OFFICIAL CAPACITY AS THE DELIGHT PUBLIC SCHOOL BOARD; ROBBIE LEE, IN THEIR OFFICIAL CAPACITY AS THE DELIGHT PUBLIC SCHOOL BOARD; JEFF HILL, IN THEIR OFFICIAL CAPACITY AS THE DELIGHT PUBLIC SCHOOL BOARD, DEFENDANTS,
DELIGHT PUBLIC SCHOOL DISTRICT, DEFENDANT/APPELLANT.



Appeal from the United States District Court for the Western District of Arkansas.

The opinion of the court was delivered by: Colloton, Circuit Judge

Submitted: March 11, 2010

Before BYE, ARNOLD, and COLLOTON, Circuit Judges.

John Doe and Martha Roe filed this action pursuant to 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), on behalf of their minor daughter, Jane Doe. For several months during the 2006-2007 school year, Jane Doe was involved in a sexual relationship with Chad Smith, her basketball coach at Delight High School. The plaintiffs claim that Tanya Wilcher, the former Principal of Delight High School, had actual knowledge of the relationship, but failed to investigate and take remedial action. They allege that Wilcher thereby demonstrated deliberate indifference to the sexual abuse of a student, in violation of Doe's constitutional rights. Based on these same allegations, the plaintiffs contend that the Delight School District violated Title IX.

The district court denied Wilcher's motion for summary judgment on the § 1983 claim and the school district's motion for summary judgment on the Title IX claim. The court determined that a genuine issue of material fact existed as to what notice Wilcher received, and denied her qualified immunity on the basis. The defendants appeal. We reverse and remand with directions to enter judgment for the defendants.

I.

We recite the facts in the light most favorable to the plaintiffs. In the spring of 2006, the Delight School District hired Chad Smith as the girls' basketball coach at Delight High School. Smith had one year of prior experience at another school district, and received positive recommendations for his work there. By August 2006, parents began complaining to school officials about text messages that Smith sent to female students. On August 8, 2006, a parent of one of Smith's players informed Curtis Turner, the district Superintendent, that Smith had sent her daughter a text message that read, "are you drunk yet?" Turner questioned Smith about the message, and Smith explained that the message was a continuation of teasing started by students at basketball practice concerning a public intoxication ticket the player had allegedly received. Smith agreed with Turner that the text message was inappropriate, and stated that he would not send similar messages in the future.

In October 2006, the mother of another female basketball player voiced concerns, this time to Wilcher, about Smith's text messages. The mother told Wilcher that Smith had sent text messages to her daughter throughout the summer, informing her of practice times. The parent explained to Smith that she felt uncomfortable with his sending text messages to her daughter, and asked him to stop. He reluctantly agreed. Later, while making room assignments for an out-of-town game, Smith jokingly told the player that her mother could stay with him. The student reported that statement to her mother, who relayed the comment to Wilcher. Wilcher confronted Smith about the statement, and he claimed that a male student, L.S., had made the remark. Wilcher orally reprimanded Smith, and instructed him to make no further comments regarding parents and to prohibit students from doing so.

At about that same time, in October 2006, an incident arose relating to C.H., John Doe's cousin. C.H. worked as Superintendent Turner's secretary, and she informed Turner that Jane Doe, a ninth grader at the time, might have a crush on Smith. C.H. also stated that she suspected Jane Doe was leaving her home economics class to visit Smith in the school gymnasium. Turner informed Principal Wilcher of C.H.'s statements and requested that Wilcher look into the matter. Wilcher followed up with Jane Doe's home economics teacher, Mrs. Hunter, to determine if Doe had been skipping class. Hunter stated that she had not noticed Jane Doe leaving class, and that Doe had been absent only once or twice. Wilcher then reminded all teachers at a faculty meeting and in the school's printed daily bulletin that students were not to leave class without a valid pass. Turner also instructed the school's resource officer to monitor the school gym to determine if Jane Doe was spending time there, but received no reports of any visits.

While Turner and Wilcher investigated C.H.'s suspicions at the school, C.H. visited Martha Roe at her house to express concern that "something was going on" between Smith and Jane Doe. C.H. repeated to Roe her belief that Jane was skipping class to go to the gym, and stated that she had seen Jane sitting on Coach Smith's office desk in her cheerleading skirt. Following this conversation with C.H., Roe phoned Smith and asked him directly if "something was going on" between him and her daughter. Smith denied that anything was "going on" with him and Jane Doe. Roe also called Principal Wilcher about the information she learned from C.H. According to Roe, Wilcher assured her that she had investigated the situation and found that Jane was not leaving class, and that there was no cause for concern.

Because of C.H.'s apparent insistence that "something was going on" between Jane Doe and Smith, John Doe and Martha Roe went to a school board meeting on the evening of October 23, 2006, to discuss the situation with Wilcher in person. C.H. interrupted Wilcher during the meeting and explained that Wilcher needed to speak with Jane Doe's parents, who were waiting in the school parking lot. When Wilcher arrived at the parking lot, C.H. was crying, and Wilcher understood Doe's parents to be upset with C.H. for sharing information about their daughter. Roe asked Wilcher if there was anything to C.H.'s claims. Wilcher assured her that she had looked into C.H.'s suspicions and confirmed that they were only rumors. C.H. then volunteered that she had additional information to provide to Wilcher about what "was going on," including the names of teachers and staff at Delight High School who had seen incidents that C.H. characterized as "inappropriate." Jane Doe's parents understood that Wilcher would investigate this additional information, but claim that she never did. Wilcher took maternity leave from late November until early January.

While Wilcher was on leave, in December 2006, Smith again became the focus of an inquiry regarding a text message. A teacher had confiscated a female student's cellular phone during class and noticed a message that read, "OMG you look good today." The message's sender as indicated on the phone was Chad Smith. The teacher took the phone to Superintendent Turner, and Turner confronted Smith about the message. Smith claimed that L.S., the same male student to whom Smith had attributed the remark about another student's mother, had taken his phone and sent the message. L.S. later admitted to Turner that he indeed had taken Smith's phone from his desk and sent the message. Following this admission by L.S., Turner instructed Smith to keep his phone in a place that was not accessible to students, and Smith agreed to do so.

In January 2007, shortly after Wilcher returned from maternity leave, Smith was implicated in a final text messaging controversy. This time, a male student received a message containing vulgar language from M.B., an eighteen year-old female student. The message appeared to be addressed to Coach Smith. The male student showed the message to Wilcher and speculated that M.B. had sent the message to him rather than Smith by mistake. Wilcher questioned Smith about the message, and he insisted that he knew nothing about it. He claimed that students were trying to cause trouble for him with school administrators, and he demonstrated how a message could be altered to appear as though it were addressed to him. Wilcher also questioned M.B. about the message, and M.B. denied ever sending the message or having contact with Smith. Wilcher examined M.B.'s phone and found no evidence of any communication with Smith. Wilcher claims to have monitored M.B. after the incident, and noticed nothing to indicate that M.B. had been untruthful.

Later that same month, Gary Wofford, a member of the school board, presented Superintendent Turner with letters from parents documenting their complaints against Smith. The letters repeated the claims that Turner and Wilcher had previously investigated, but also added new details and a few new allegations. One letter clarified that in addition to telling a student that her mother could stay with him on a team road trip, Smith also allegedly sent the student a text message stating "tell your mom that I love her." Another letter described an incident in which Smith tried to prohibit his players from shaking an opposing coach's hand following a basketball game. Other letters ...


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