REL: 06/26/09
Notice: This opinion is subject to formal revision before publication in the advance
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before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1080316
_________________________
J.B.
v.
Lawson State Community College et al.
Appeal from Jefferson Circuit Court
(CV-06-1378)
WOODALL, Justice.
In the late night hours of March 5 or the early morning
hours of March 6, 2004, 19-year-old J.B., 1 a member of the
1
We are using initials to preserve the anonymity of the
victims, as required by Rule 52, Ala. R. App. P.
1080316
Lawson
State
Community
College
("Lawson
State")
women's
basketball team, was raped in a motel room by one of her
basketball coaches, Boris A. McCord, a long-time acquaintance,
after an away game.
She brought this action (1) against
Lawson State, pursuant to Title IX of the Education Amendments
of 1972, § 909, as amended, 20 U.S.C. §§ 1681-1688; and (2)
against McCord's alleged supervisors, namely, Dr. Perry Ward,
Eleanor Pitts, and Aubrey Wiley, the president, the athletic
director, and the head women's basketball coach, respectively,
of Lawson State (hereinafter referred to collectively as "the
supervisors"),
pursuant
to
42
compensatory and punitive damages.
summary judgment for Lawson
J.B. appeals.
State
U.S.C.
§
1983,
seeking
The trial court entered a
and
the supervisors,
and
We affirm.
I. Legal Framework
"Title IX provides in pertinent part: 'No 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
financial assistance.'"
Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 280 (1998) (quoting 20 U.S.C. § 1681(a)).
2
1080316
It affords a private right of action for "damages in cases
involving a teacher's sexual harassment of a student," 524
U.S. at 281, but only where "an official of the school ... who
at a minimum has authority to institute corrective measures on
the
[school's]
behalf
has
actual
notice
of,
and
is
deliberately indifferent to, the teacher's misconduct." 524
U.S. at 277 (emphasis added).
Similarly, supervisory liability under § 1983 turns on
whether,
"'in
light
of
the
information
[the
supervisors]
possessed, the teacher who engaged in sexual abuse showed a
strong likelihood that he would attempt to sexually abuse
other
students,
precautions
such
amounted
that
to
the
failure
deliberate
to
take
indifference
constitutional rights of the students.'"
adequate
to
the
Ex parte Madison
County Bd. of Educ., 1 So. 3d 980, 992 (Ala. 2008) (quoting
Doe ex rel. Doe v. City of Roseville, 296 F.3d 431, 439 (6th
Cir. 2002)).
Thus, an issue dispositive of either claim is
whether the actions or inaction of the supervisors or Lawson
State of which J.B. complains as the basis of her claims
amounted to deliberate indifference to the danger posed to her
by McCord.
3
1080316
II. Factual Background
The fact pattern out of which this case arises involves
such details regarding McCord's background as were known by
the supervisors, as well as by J.B. herself.
According to
Pitts, Pitts was head women's basketball coach at Lawson State
in 2002.
Her duties included recruiting prospective student
athletes for the basketball team, as well as overseeing the
scheduling and administration of all practices and games and
supervising assistant coaches and voluntary assistants.
During the 2002-2003 basketball season, McCord assisted
Pitts "on a voluntary, part-time basis" with, among other
things, the "administration of practices."
Pitts had known
McCord and one or more of his family members for several years
and had heard from them that McCord had, at sometime predating
his employment history, "been in jail related to the death of
a child."
for
a
Her understanding was that he had taken "'the fall'
companion." 2
She
never
discussed
the
matter
with
McCord.
During the 2002-2003 basketball season, Pitts learned -according to her affidavit and deposition testimony -- that
2
In 1987, McCord was convicted in Georgia of manslaughter.
4
1080316
McCord had allegedly touched S.P., a female student on the
basketball team, "in a manner that made her feel uncomfortable
during the middle of a practice drill."
More specifically,
Pitts stated that, on the day of the alleged incident, S.P.
approached Pitts and personally informed her of the matter as
Pitts was coming out of her office.
Pitts stated that she
"immediately" questioned McCord, who said that the touch was
only "incidental as part of the practice drill."
Pitts said
that she questioned "the other players" and "strongly warned
[McCord] that such conduct was not acceptable and [would] not
be tolerated."
Subsequently, according to Pitts, she informed
S.P. of the actions she had taken and S.P. indicated that she
"was
satisfied
with
that."
Neither
S.P.
nor
any
of
her
teammates have any recollection of this incident or of Pitts's
alleged follow-up, which will hereinafter be referred to as
"the 2002 incident."
In 2003, McCord was offered and accepted employment by
Lawson State as assistant women's basketball coach.
In so
doing, he replaced Aubrey Wiley, who, in turn, replaced Pitts
as head women's basketball coach, when Pitts moved into the
5
1080316
position of chair of the Department of Health and Physical
Education; Pitts later became athletic director.
In early 2004, during the 2003-2004 basketball season,
McCord
allegedly
touched
S.P.
on
the
backside
before
basketball game as she was standing on a weight scale.
a
S.P.
testified by deposition that she confronted McCord and asked
him if the touch was intentional, and he admitted that it was.
She was angry and immediately expressed her anger to a number
of her teammates.
However, according to the testimony of S.P.
and her teammates, neither she nor they reported the incident
to any official for Lawson State.
The alleged touching on
this occasion will be referred to hereinafter as "the 2003
incident."
Meanwhile,
Woodlawn
High
in
the
School
fall
of
2003,
("Woodlawn"),
scholarship to attend Lawson State.
J.B.,
accepted
a
graduate
a
of
basketball
The scholarship offer was
McCord's idea; McCord had been J.B.'s basketball coach at
Woodlawn for three years before her high-school graduation.
While she was in high school, J.B. and her team had played a
number of away games, chauffeured by McCord, that required
overnight stays.
Also, J.B. traveled -- "a lot" -- with
6
1080316
McCord and other members of his family to watch McCord's
daughter play basketball for Alabama A&M University.
Throughout
the
2003-2004
basketball
season
at
Lawson
State, McCord regularly chauffeured J.B. to and from classes,
sometimes accompanied by his fiancée.
J.B. also spent time
with McCord at his home, visiting with his fiancée and her
daughter.
Pitts and Wiley were aware of these activities.
Pitts and Wiley both felt some concern regarding the amount of
time
J.B.
and
McCord
were
spending
together,
questioned the nature of the relationship.
and
they
Wiley discussed
the matter with Pitts, who expressed the view that J.B. was
"grown" and that Pitts and Wiley could not control events that
happened off campus.
with
J.B.
and
Wiley also discussed the relationship
McCord,
both
of
whom
denied
that
the
relationship was a sexual one.
At that time, Lawson State -- through (1) the "Lawson
State Community College Student Catalog" ("the catalog") and
(2) the "Lawson State Community College Student Handbook"
("the
handbook")
--
distributed
to
students
regarding its policy on sexual harassment.
catalog stated:
7
information
Specifically, the
1080316
"Lawson State ... is committed to protect all
persons from sexual harassment, intimidation, and
exploitation of its students, staff, and campus
visitors as prohibited by Title IX of the Education
Amendments of 1972 and of Title VII (Section 703) of
the Civil Rights Act of 1964."
In that connection, the handbook stated:
"It is the policy of Lawson State Community College
to maintain a learning and working environment that
is free from sexual harassment.
It shall be a
violation of this policy for any member of the
college's staff to harass another staff member or
student through conduct or communication of a sexual
nature as defined below.
It shall also be a
violation of this policy for students to harass
other students through conduct or communications of
a sexual nature as defined below.
"Definition
"Sexual harassment shall consist of unwelcome sexual
advances, requests for sexual favors, and other
inappropriate verbal or physical conduct of a sexual
nature when made by any member of the school's staff
to a student, when made by any of the school's staff
to another staff member or when made by any student
to another student when:
"•
Submission to such conduct is made either
explicitly or implicitly a term or condition of
an individual's employment or education, or
when:
"•
Submission to or rejection of such conduct by
an individual is used as the basis for academic
or
employment
decisions
affecting
that
individual, or when:
"•
Such conduct has the purpose or effect of
substantially interfering with an individual's
8
1080316
academic
or
professional
performance
or
creating an intimidating, hostile, or offensive
employment or education environment.
"Sexual harassment, as set forth above, may include,
but is not limited to the following:
"•
Verbal harassment or abuse
"•
Pressure for sexual activity
"•
Repeated remarks to a person, with sexual or
demeaning implications
"•
Unwelcomed touching
"•
Suggesting or demanding sexual involvement
accompanied by implied or explicit threats
concerning one's grades, job, etc."
Lawson State is also subject to the sexual-harassment
policy promulgated by the Alabama State Board of Education.
State Board Policy 601.04 ("the policy"), in effect during the
2003-2004 academic year, provided, in pertinent part: "Sexual
harassment is distinguished from consenting or welcome sexual
relationships by the introduction of the elements of coercion;
threat;
unwelcome
sexual
favors;
suggestively
sexual
other
written
advances;
unwelcome
verbal
or
(Emphasis added.)
9
unwelcome
requests
for
sexually
explicit
or
physical
conduct
...."
1080316
The policy provided detailed procedures for reporting and
resolving sexual-harassment complaints.
In particular, any
complaint was to be in writing and was to be referred to the
"president of the institution and the Vice Chancellor for
Legal and Human Resources" ("the vice chancellor").
The vice
chancellor was to be "kept informed regarding the progress and
results of the investigation of the complaint."
Although the
policy provided for both "formal" and "informal" resolution of
a sexual-harassment complaint, it provided that, at a minimum,
"[i]f the results of the investigation and informal resolution
of the complaint are accepted by the alleged victim and he or
she desires no further action against the alleged harasser,
the complainant will sign a statement requesting that no
further action be taken."
However, it is undisputed that J.B. did not complain to
anyone at Lawson State about her relationship with McCord.
On
the contrary, according to J.B., she had come to regard McCord
as a friend and "father figure," never felt that he had acted
inappropriately toward her, and, until the night of March 5-6,
2004, never suspected that he might harm her.
Nevertheless,
on that night, McCord raped J.B. in his motel room after a
10
1080316
Lawson State basketball game.
He was subsequently convicted
of the crime and sentenced to imprisonment for life plus 20
years.
J.B.
sued
Lawson
State
under
Title
supervisors under 42 U.S.C. § 1983.
IX
and
sued
the
As last amended, the
complaint alleged, among other things, that Lawson State and
the
supervisors
had
"knowledge
of
the
sexual
and
hostile
education environment and sexual abuse and harassment to which
J.B. and others were subjected at the hands of Boris McCord,
and [that] their failure to respond and/or their inadequate
response
amounted
indifference
"had
to
the
deliberate
effect
of
indifference,"
denying
[J.B.]
educational opportunities provided by the school."
which
access
to
It further
alleged that J.B.'s "rights to personal safety and bodily
integrity [as] guaranteed by the Fourteenth Amendment ... were
violated when [Lawson State] and [the supervisors] failed to
prevent Boris McCord from raping ... her."
Lawson State and
the supervisors filed a joint motion for a summary judgment,
asserting,
among
other
things,
qualified
affirmative defense to the § 1983 claims.
granted the motion, and J.B. appealed.
11
immunity
as
an
The trial court
1080316
III. Discussion
"In their individual capacities, ... state
officials may be liable for damages resulting from
discretionary acts that violate 'clearly established
statutory or constitutional rights of which a
reasonable person would have known.'
Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,
2738, 73 L. Ed. 2d 396 (1982).
'Good-faith' or
'qualified' immunity is available as an affirmative
defense to a wide variety of public officials. Id.
at 815, 102 S. Ct. at 2736; Schuck, Suing Our
Servants: The Court, Congress, and the Liability of
Public Officials for Damages, 1980 Sup. Ct. Rev.
281, 293-95. In order to defeat a qualified immunity
defense, the plaintiff 'bears the burden of showing
that "the legal norms allegedly violated by the
defendant were clearly established at the time of
the challenged actions."' Barts v. Joyner, 865 F.2d
1187, 1190 (11th Cir.) (quoting Mitchell v. Forsyth,
472 U.S. 511, 528, 105 S. Ct. 2806, 2816, 86 L. Ed.
2d 411 (1985)), cert. denied, 493 U.S. 831, 110 S.
Ct. 101, 107 L. Ed. 2d 65 (1989); see also Feagley
v. Waddill, 868 F.2d 1437, 1439 (5th Cir. 1989);
Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.
1988); Zeigler v. Jackson, 716 F.2d 847, 849 (11th
Cir. 1983).
Only if a state official exhibits
deliberate indifference to his official duties may
he be liable for damages under § 1983."
George v. McIntosh-Wilson, 582 So. 2d 1058, 1061 (Ala. 1991)
(emphasis and footnote omitted).
"Supervisory liability [under § 1983] occurs either
when the supervisor personally participates in the
alleged constitutional violation or when there is a
causal connection between actions of the supervising
official and the alleged constitutional deprivation.
Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988)
(per curiam); ... Wilson v. Attaway, 757 F.2d 1227,
1241 (11th Cir. 1985). The causal connection can be
12
1080316
established when a history of widespread abuse puts
the responsible supervisor on notice of the need to
correct the alleged deprivation, and he fails to do
so. See Clark v. Evans, 840 F.2d 876, 885 (11th Cir.
1988) (per curiam); ... Wilson, 757 F.2d at 1241.
The deprivations that constitute widespread abuse
sufficient to notify the supervising official must
be obvious, flagrant, rampant and of continued
duration, rather than isolated occurrences."
Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
On appeal, J.B. contends that "Pitts was deliberately
indifferent to the risk of harm presented by allowing McCord
to coach young college girls." 3
J.B.'s brief, at 34.
J.B.
does not allege that anyone but Pitts was an "official of the
school ... [having] authority to institute corrective measures
on the [school's] behalf," under the Title IX standard set
forth in Gebser, 524 U.S. at 277.
J.B.'s
federal
claims
turn
Indeed, the merits of both
chiefly
on
Pitts's
allegedly
inappropriate -- or inadequate -- action.
A. Pitts's Conduct
J.B.
respects.
faults
Pitts's
performance
in
essentially
two
First, she contends that Pitts failed to conduct
3
There is no issue as to the identity of the "clearly
established ... constitutional right" involved in this case.
"[T]he Due Process Clause of the Fourteenth Amendment
[clearly] protects the right of a child to be free from sexual
abuse inflicted by a public school teacher." Roseville, 296
F.3d at 438.
13
1080316
any investigation into the 2003 incident involving McCord and
S.P.
Second, according to J.B., Pitts failed to conduct an
"investigation
[of
the]
long-standing
McCord/J.B.
inappropriate relationship," of which Pitts was aware. J.B.'s
brief, at 64.
1. S.P.
In this connection, J.B. makes the peculiar argument that
she produced substantial evidence of Pitts's utter failure to
investigate McCord's inappropriate touching of S.P., which
occurred before the event forming the basis of this case.
Specifically, she contends that "Pitts never conducted any
investigation whatsoever in the S.P. incident."
at
63.
This
argument
is
peculiar
in
light
J.B.'s brief,
of
the
odd
disconnect in the evidence of McCord's alleged touching of
S.P.
S.P. testified unequivocally that the touching occurred
during the 2003-2004 season, not during the 2002-2003 season,
as Pitts remembers.
met
McCord
before
In fact, S.P. stated that she had never
the
summer
of
2003
incident is alleged to have occurred.
--
after
the
2002
Most significantly,
S.P. testified that she never told Pitts or anyone else in the
administration at Lawson State about the touching that formed
14
1080316
the basis of the 2003 incident.
S.P.'s friends who knew of
the 2003 incident testified similarly, that is, that they
never told any Lawson State official about the 2003 incident.
The
only
evidence
inappropriate
touching
indicating
came
from
that
Pitts
Pitts,
knew
herself,
of
and
an
she
testified that she promptly investigated the incident to her
satisfaction
and
to
the
satisfaction
of
the
complainant.
Thus, the evidence produces two disconnected scenarios, namely
the
2002
incident
and
the
2003
incident.
Indeed,
J.B.
concedes as much by arguing that "Pitts has obviously confused
another inappropriate touching by McCord involving another
teammate
of
J.B.'s
that
occurred
during
during a different basketball season."
a
practice
drill
J.B.'s reply brief, at
5 (emphasis added).
Neither scenario, however, aids J.B.
Under one scenario,
Pitts did investigate; under the other scenario, Pitts was
never apprised of the need to investigate.
Thus, there was no
evidence indicating that Pitts ignored a report of sexual
impropriety or that she was deliberately indifferent to the
risk of harm to an athlete in not conducting an investigation
of a sexual impropriety.
15
1080316
To be sure, it is uncontroverted that the investigatory
procedures outlined in the policy were not followed.
In other
words, even under Pitts's version of events, there was no
paper trail of the investigation.
Neither the "president of
the institution" nor the vice chancellor was ever informed of
the
alleged
complainant
action
be
complaint
"sign
a
taken."
against
statement
Such
McCord.
Neither
requesting
deviations
from
that
the
did
no
the
further
policy
are
arguably negligent.
However, "'[n]egligence is not enough to impose [either]
section 1983 [or Title IX] liability ....'"
Ex parte Madison
County Bd. of Educ., 1 So. 3d at 993 (quoting Roseville, 296
F.3d at 441); see Davis v. Monroe County Bd. of Educ., 526
U.S. 629, 642 (1999) ("Likewise, [in Gebser v. Lago Vista
Independent School District, 524 U.S. 274 (1998), a Title IX
case,] we declined the invitation to impose liability under
what amounted to a negligence standard -- holding the district
liable for its failure to react to teacher-student harassment
of which it knew or should have known.").
"'[I]t is not
enough
the
for
supervisors
the
plaintiff
were
sloppy,
to
show
reckless
16
that
or
negligent
defendant
in
the
1080316
performance of their duties.'" Ex parte Madison County Bd. of
Educ., 1 So. 3d at 992 (quoting Roseville, 296 F.3d at 439
(emphasis added)).
constitutional
Otherwise stated, J.B. "'did not have a
right
to
be
free
from
negligence
supervision of the [coach] who ... abused her.'"
in
the
1 So. 3d at
993 (quoting Roseville, 296 F.3d at 441 (emphasis added)).
See also W.L.O. v. Smith, 585 So. 2d 22, 25 (Ala.
1991)
("[T]he Due Process Clause of the Fourteenth Amendment serves
as a limitation on the States' power to act, and cannot be
read as a guarantee of protection from the criminal acts of
third
parties.")
(construing
DeShaney
v.
Winnebago
County
Dep't of Soc. Servs., 489 U.S. 189, 196-97 (1989)).
"'A state official acts with deliberate indifference only
when
[she]
disregards
a
risk
of
harm
of
which
[she]
is
actually aware.'" Ex parte Madison County Bd. of Educ., 1 So.
3d at 991 (quoting Ray v. Foltz, 370 F.3d 1079, 1083 (11th
Cir. 2004)(emphasis added in Ex parte Madison County Bd. of
Educ.)).
This standard is satisfied when a supervisor is
"'confronted [1] with conduct that [is] "obvious, flagrant,
rampant, and of [continued] duration," ... or [2] with "... a
widespread pattern of constitutional violations."'" Ex parte
17
1080316
Madison
County
Roseville,
296
Bd.
of
Educ.,
1
So.
3d
at
993
(quoting
F.3d at 440-41, quoting in turn Braddy v.
Florida Dep't of Labor & Employment Sec., 133 F.3d 797, 802
(11th Cir. 1998), and Doe v. Claiborne County, 103 F.3d 495,
513 (6th Cir. 1996)).
may
be
insufficient,
"sporadic"
or
Even multiple instances of misconduct
however,
"isolated"
by
where
the
instances
substantial
intervals and accompanied by investigations.
County Bd. of Educ., 1 So. 3d at 992-93.
are
chronological
Ex parte Madison
See Doe v. Taylor
Indep. Sch. Dist., 15 F.3d 443, 456 n. 12 (5th Cir. 1994)
(noting that t he deliberate-indifference standard may preclude
liability for "many good faith but ineffective responses,"
such as "warning the state actor, notifying the student's
parents, or removing the student from the teacher's class").
Roseville, for example, involved the following facts:
"[A] female elementary-school student alleged that
she had been abused by one of her male elementaryschool teachers in 1992.
The teacher had had
complaints alleged against him throughout his
teaching career.
During the 1975-76 and 1976-77
school years, several girls alleged that the teacher
had touched them inappropriately.
The teacher
received
an
oral
warning.
The
teacher
was
transferred to a different elementary school, and in
1979 the superintendent was notified that the
teacher had fondled four sixth-grade girls.
The
superintendent investigated, concluded that the
18
1080316
teacher had used 'poor judgment,' placed a sealed
letter of reprimand in his file, and transferred him
to yet another school.
No additional allegations
of improper behavior were made until 1988 when
several girls reported that the teacher had touched
them inappropriately. The superintendent conducted
another investigation and issued a letter of
reprimand.
Additionally,
the
superintendent
contacted the board of education and the district
attorney, informing them of the two incidents
requiring a letter of reprimand.
The teacher was
again transferred, and in 1992 and 1993 the specialeducation student who was the plaintiff in the
Roseville case was allegedly sexually abused."
Ex parte Madison County Bd. of Educ., 1 So. 3d at 991-92
(discussing Roseville) (emphasis added).
As in this case, the plaintiff in Roseville alleged that
school officials, including the superintendent, had violated
her constitutional right to bodily integrity "by failing to
take
appropriate
teacher's]
plaintiff]."
action
alleged
in
abuse
response
of
to
children
296 F.3d at 439.
Two of
reports
other
of
[the
than
[the
the instances of
alleged misconduct were reported to the superintendent, who
investigated the allegations.
Similarly, in this case, the
facts, when construed most favorable to J.B., show that S.P.
complained to Pitts of an inappropriate touching by McCord and
that Pitts investigated the matter.
19
1080316
"The court in Roseville acknowledged that the conduct of
the
supervisors
was
'disturbing,'"
but
it
noted
that
the
"teacher's actions were sporadic -- occurring in 1976 and then
not until 1988, more than 10 years apart."
County Bd. of Educ., 1 So. 3d at 992.
Ex parte Madison
Ultimately, the court
in Roseville held that the allegations were insufficient as a
matter of law to establish deliberate indifference on the part
of the officials.
Similarly,
determined
that
296 F.3d at 441.
in
5
Ex
parte
alleged
Madison
instances
County,
of
this
sexual
Court
abuse
of
different female students by a teacher over a 16-year period
were isolated occurrences, not amounting to notice to Jim
Nash,
personnel
Education,
that
director
his
for
failure
the
Madison
County
to
recommend
the
Board
of
teacher's
dismissal subjected the plaintiff, who was also abused by the
teacher, to the likelihood of a constitutional deprivation.
All five instances had been investigated by school officials.
"Nash was aware of three of the five investigations at the
time
they
were
being
conducted,"
1
So.
3d
at
984,
and
personally investigated two of the instances of sexual abuse.
Id.
Explaining
that
the
teacher's
20
previous
instances
of
1080316
sexual abuse were not so "obvious, flagrant, rampant, and of
continued duration" as to "provide [Nash] with sufficient
notice
that
[the
teacher]
would
seriously
harm
[the
plaintiff]," we held that, as a matter of law, Nash had not
been deliberately indifferent to the constitutional rights of
the plaintiff.
1 So. 3d at 993.
J.B. attempts to distinguish Ex parte Madison County,
contending that, unlike Nash, who investigated allegations of
abuse,
Pitts
"did
nothing
inappropriate conduct."
This
contention
although
is
J.B.'s
learning
of
McCord's
J.B.'s brief, at 69 (emphasis added).
without
theory
after
of
merit.
As
liability
noted
is
previously,
premised
on
the
complete absence of an investigation, rather than a mere
negligent investigation, this is not such a case.
evidence
indicating
that
Pitts
failed
allegation of which she was apprised.
to
There is no
investigate
an
The only evidence is
that Pitts did investigate -- albeit, arguably negligently -an allegation of inappropriate touching in the 2002 incident.
See also Sauls v. Pierce County Sch. Dist., 399 F.3d 1279
(11th
Cir.
2005)
(holding
that
school
district
was
not
deliberately indifferent to reports of sexual harassment where
21
1080316
each complaint was followed by an investigation).
For these
reasons, the 2002 incident, even in light of McCord's 1987
conviction
for
manslaughter,
of
which
Pitts
also
had
knowledge, did not constitute obvious, flagrant, or continued
misconduct
for
purposes
of
the
deliberate-indifference
standard.
J.B. relies on George v. McIntosh-Wilson, 582 So. 2d 1058
(Ala. 1991). However, that case is easily distinguishable.
George arose out of the death of Andre George, a "profoundly
retarded resident" of Partlow State School and Hospital ("the
hospital"),
who
"suffocated
on
a
surgical
glove
ingested while unattended by hospital personnel."
at 1059.
that
he
582 So. 2d
It involved a claim under 42 U.S.C. § 1983 against,
among others, Earnell McIntosh-Wilson, the chief executive
officer of the hospital.
making
administrator[]
Id.
...
McIntosh-Wilson was a "policyliable
for
the
constitutional
deprivations caused by [her] subordinates if [she] exhibited
such
a
degree
of
indifference
to
compliance
policies as to demonstrate that [she]
with
[her]
did not base [her]
actual administrative decisions or actions on the professional
judgments
embodied
in
the
policy."
22
582
So.
2d
at
1063
1080316
(emphasis added).
There was evidence of such indifference in
George.
It was undisputed that George had a notorious "habit of
chewing and 'mouthing' anything within his reach, including
towels, rags, his clothing or the clothing of others."
So. 2d at 1059.
had
purported
procedures
'behavioral
for
582
It was further undisputed that the hospital
to
address
his
habit
[his]
habilitation,"
management
plan,'"
by
"formulat[ing]
including
and
habilitation plan.'" 582 So. 2d at 1060.
"an
a
"90-day
'individual
There was expert
testimony, however, tending to show that the procedures were
"paper
polic[ies]"
illusory than real."
only,
that
is,
that
they
"were
more
582 So. 2d at 1063.
The policy at issue in this case was instituted, not by
Pitts, but by the State Board of Education.
What was known in
George was the chronic and life-threatening behavior of a
profoundly retarded hospital patient, while here, it is the
two, widely separated, dissimilar instances of misconduct by
a basketball coach -- an offensive touching and a rape.
George does not aid J.B.
23
Thus,
1080316
2. The J.B./McCord Relationship
J.B. also complains of Pitts's decision not to intervene
in
her
long-standing,
personal
relationship
with
McCord.
Although she undisputedly never complained to Pitts or anyone
else about McCord until the event made the basis of this
action, she now insists that Pitts should have interpreted
McCord's
attentions
as
sexual
harassment
and
should
have
unilaterally initiated the procedures for addressing sexual
harassment set forth in the policy.
This argument is without
merit.
The policy in effect during the 2003-2004 academic year
specifically excluded from the definition of sexual harassment
"consenting or welcome sexual relationships."
More to the
point, J.B. testified that, although she and McCord
were
often together going to and from classes and basketball games,
she did not consider the relationship to be sexual.
On the
contrary, she regarded McCord as a friend and "father figure."
Thus, even if Pitts had initiated an investigation, it would,
presumably, have foundered for lack of a complainant.
For
these
reasons,
we
hold
that
Pitts
was
not
deliberately indifferent to J.B.'s constitutional rights for
24
1080316
purposes of imposition of liability, under either Title IX or
§ 1983.
premised
Because the Title IX claim against Lawson State is
on
Pitts's
alleged
inaction,
the
trial
court
correctly entered a summary judgment in favor of both Pitts
and Lawson State.
B. Wiley's Conduct
As for Wiley, J.B. concedes that Wiley's conduct was less
"egregious" than was Pitts's.
J.B.'s brief, at 62.
No one
alleges that Wiley knew of an inappropriate touching of
by McCord.
together.
S.P.
Wiley did know that J.B. and McCord spent time
By deposition, Wiley testified that he expressed
his concerns about the J.B./Mccord relationship to both J.B.
and McCord.
Specifically, Wiley testified:
"Q. [J.B.'s counsel:] Did you ever tell [McCord]
you thought it was a bad idea for him to be
taking [J.B.] home and picking her up?
"A. [Wiley:] Yes, I did. I told both. But they
told me -- she said he was a father figure to
her."
(Emphasis added.)
In any case, as we have already discussed in the context
of the claims against Pitts, nothing in Wiley's handling of
the
J.B./McCord relationship provides a basis for liability
25
1080316
under § 1983.
Therefore, the trial court correctly entered a
summary judgment for Wiley.
C. Dr. Ward's Conduct
The § 1983 claim is asserted against Dr. Ward solely on
the ground that he "condoned" Pitts's response to the 2002
incident and Pitts's and Wiley's handling of the ongoing J.B./
McCord
relationship.
He
did
so,
according
to
J.B.,
by
testifying in deposition that he regarded their responses to
each
situation
as
appropriate
under
the
circumstances.
Because, as we have already discussed in this opinion, neither
Pitts's response to the 2002 incident nor the response of
either Pitts or Wiley to the J.B./McCord relationship provides
a
basis
for liability under §
1983,
Dr.
Ward's
alleged
ratification of such responses does not afford a basis for
liability.
Thus, the trial court properly entered a summary
judgment for Dr. Ward.
IV. Conclusion
For
the
foregoing
reasons,
the
trial
court
correctly
entered a summary judgment in favor of Lawson State, Pitts,
Wiley, and Dr. Ward.
That judgment is, therefore, affirmed.
AFFIRMED.
Cobb, C.J., and Smith, Parker, and Shaw, JJ., concur.
26
