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Overturning a $400,000 verdict, the 3rd U.S. Circuit Court of Appeals has ruled that juries cannot hold school districts liable for sexual misconduct by elementary school teachers unless there is proof that the principal had “actual knowledge” of the problem and was “deliberately indifferent.” In Warren v. Reading School District a unanimous three-judge panel found that U.S. District Judge J. Curtis Joyner of the Eastern District of Pennsylvania erred when he instructed the jury that, under Title IX, it could hold the school district liable if he found that either the principal or a guidance counselor had knowledge of teacher Harold Brown’s alleged inappropriate behavior. Third Circuit Judge Theodore A. McKee found that under the U.S. Supreme Court’s 1998 decision in Gebser v. Lago Vista Independent School District, the plaintiff in a Title IX case must prove that an “appropriate person” was made aware of a school official’s misconduct and failed to address the problem. While a school principal is clearly such an appropriate person, McKee found, there was not enough evidence to show that the guidance counselor was “cloaked with sufficient authority” to allow liability to be premised on his knowledge. And since it was unclear whether the jury based its verdict on the principal’s or the guidance counselor’s knowledge, McKee found that the only cure was to order a new trial. According to the suit, Robert Warren was transferred in April 1995 into the Reading School District’s Tenth and Green Elementary School, where he was assigned to Brown’s fourth-grade class. One day soon after, the suit says, Brown asked Robert to stay after school and, after locking the classroom door, suggested that they play a “game” that Brown called “shoulders.” The game consisted in Robert squatting with his head between Brown’s legs and placing his shoulders under Brown’s thighs, the suit says. Robert would then lift Brown’s upper body from this squatting position as Brown leaned forward, the suit says. As the boy lifted, the suit says, Brown’s genitals touched the back of Robert’s head and neck. Brown challenged Robert to squat and lift as many times as he could, the suit says, and Brown “rewarded” Robert with candy or money when the “game” was over. Brown repeated the routine two or three times per week during the school year, the suit says. On at least one occasion during the following summer, the suit says, Brown picked Robert up from his home and took him to a “secret spot” near the woods, where they again played the “shoulders” game. In November 1995, Robert’s mother, Lori Good, discovered her son’s journal and read an entry in which Robert described playing “shoulders” with Brown at a secret spot, the suit says. Good reported Brown to Berks County Children and Youth Services, which in turn reported the suspected abuse to the school district. Brown was suspended and ultimately resigned from his position. Brown later surrendered to authorities and was arrested on three criminal complaints detailing the alleged sexual abuse of several male students. He was prosecuted in the Berks County Court of Common Pleas but was acquitted of all charges. Good filed a civil rights suit that named the school district, Principal Geraldina Sepulveda and Superintendent James A. Goodhart. Good later amended the suit to add a Title IX claim. At trial, another parent, Carlos Mercado, testified that his son had been a student in Brown’s class and that he tried in the early 1990s to get a response to his concerns about Brown’s alleged inappropriate conduct. Mercado said that Sepulveda “was too busy to listen to me” and that she told him to speak with Frank Vecchio, the school guidance counselor. Mercado testified that Vecchio promised to talk to Brown and “get back to me.” But Mercado said he never heard anything further from Vecchio, Sepulveda or anyone else at the school. Good’s lawyer, David R. Dautrich, also presented two expert witnesses. Dr. Susan Kraus, an expert in psychology and sexual abuse of children, testified that the “shoulders” game that Robert described was actually a masturbatory exercise engaged in for sexual gratification. She said such “games” are nothing more than sexual activity and could not be regarded as mere “horseplay.” Dr. Chester Kent, an expert in the field of school policy, procedure and administration, with a subspecialty in cases involving molestation or abuse of children, told the jury that Sepulveda’s internal policies for student safety were highly deficient and not conducive to protecting the health, safety or welfare of the students at the school. Kent also surmised that, given the number of children that allegedly had been victimized, the level of activity in Brown’s classroom should have aroused suspicion. Sepulveda, he said, was complacent and her approach to protecting the welfare of the children at her school conveyed that complacency to the teachers she was responsible for supervising. Sepulveda’s attitude, Kent said, “really served to create a hostile environment in the building where young boys became prey of a teacher who was bent on molesting them, and this was happening right under the nose of the principal.” The jury awarded Good $400,000, and Judge Joyner later awarded $104,000 in attorney fees. On appeal, the school district’s lawyer, Frederick B. Buck III of Philadelphia-based Rawle & Henderson, argued that the jury should not have been allowed to find against the school district on the basis of Vecchio’s actual knowledge. And since the jury cleared Sepulveda on a � 1983 claim, Buck argued, the appellate court should order that judgment be entered in favor of the district, ending the case. Judge McKee agreed that the jury was improperly instructed on the issue of whether Vecchio could be considered the appropriate person but found that there was enough evidence against Sepulveda to support the verdict. In an opinion joined by Senior 3rd Circuit Judge Max Rosenn and visiting 7th Circuit Judge Richard D. Cudahy, McKee outlined the case law from the Supreme Court that controls Title IX claims. Although Congress only provided for administrative enforcement of Title IX’s prohibition against discrimination, the Supreme Court held in its 1979 decision in Cannon v. University of Chicago that Title IX is also enforceable through an implied private right of action. In 1992, the justices held in Franklin v. Gwinnett County Public Schools that monetary damages can be recovered in a private action under Title IX. But McKee said the high court did not define the parameters of that liability until 1998 when it decided Gebser. In Gebser, the justices rejected employer liability based upon principles of agency that apply in suits for sexual harassment under Title VII, finding that “it would frustrate the purpose of Title IX to permit monetary damages for a teacher’s sexual harassment of a student based on principles of respondent superior or constructive notice.” Instead, the court concluded that Title IX’s “express remedial scheme is predicated upon notice to an appropriate person and an opportunity to rectify violation.” McKee found that the analysis in Gebser “rested upon the supposition that a principal is usually high enough up the bureaucratic ladder to justify basing Title IX liability on his or her actual knowledge and deliberate indifference.” Buck urged the court to hold that Sepulveda was not an appropriate person under the statute. McKee disagreed, saying, “The practical result of holding that a principal is not an ‘appropriate person’ would require a plaintiff to prove that members of the school’s governing body, perhaps even a voting majority of those members, knew of the improper conduct. That would undermine the private cause of action under Title IX that the court found in Cannon, and eliminate the protection Congress intended for students in schools receiving Title IX funds.” But McKee found that Joyner’s analysis of the appropriate-person question was flawed because he held that Sepulveda was the appropriate person and that she had transferred her authority to Vecchio. “Although we agree that the evidence was sufficient to allow a reasonable jury to conclude that Sepulveda was ‘an appropriate person’ under Title IX, we do not agree that Vecchio was, or that Sepulveda somehow transferred her authority to Vecchio,” McKee wrote. During jury deliberations, McKee noted, the jury asked whether Vecchio was an appropriate person. Joyner’s response, McKee said, “allowed the jury to return a verdict for plaintiff based upon Vecchio’s knowledge and deliberate indifference rather than Sepulveda’s.” The jury’s verdict slip was no help, McKee said, because it “does not allow us to determine if the verdict was based upon Vecchio’s actual knowledge and deliberate indifference, or Sepulveda’s actual knowledge and deliberate indifference.”

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