                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-10-2005

Bostic v. Smyrna Sch Dist
Precedential or Non-Precedential: Precedential

Docket No. 04-1463




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                                  PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ____________

                 No. 04-1463
                ____________

 JAMES BOSTIC; CHERIE BOSTIC, as next
   friends of minor plaintiff Jennifer Bostic;
             JENNIFER BOSTIC,

                                   Appellants

                      v.

 SMYRNA SCHOOL DISTRICT; SMYRNA
BOARD OF EDUCATION; SMYRNA HIGH
  SCHOOL; CLARENCE E. LLOYD, in his
individual and official capacities; ANTHONY
   E. SOLIGO, in his individual and official
  capacities; JOHN SMITH, in his individual
   and official capacities; EVELYN SMITH

                ____________

On Appeal from the United States District Court
           for the District of Delaware
                (D.C. No. 01-0261)
 District Judge: The Honorable Kent A. Jordan
                    Argued June 9, 2005

 BEFORE: AMBRO, VAN ANTWERPEN and TASHIMA * ,
                 Circuit Judges,

                  (Filed August 10, 2005)

Richard R. Wier, Jr. (Argued)
Daniel W. Scialpi
Richard R. Wier, Jr., P.A.
1220 Market St. Suite 600
Wilmington, DE 19801
Counsel for Appellants

Jonathan L. Parshall (Argued)
Murphy Spadaro & Landon
1011 Centre Road Suite 210
Wilmington, DE 19805
Counsel for Appellees


                OPINION OF THE COURT


TASHIMA, Circuit Judge

      James, Cherie, and Jennifer Bostic (collectively,



  *
   The Honorable A. Wallace Tashima, Senior United States
Circuit Judge for the Ninth Circuit, sitting by designation.

                                2
“Appellants”)1 appeal a jury verdict in favor of Smyrna School
District, the Smyrna Board of Education, Smyrna High School
(collectively, “Appellees” or “Smyrna Defendants”), and
various individual defendants. Bostic filed suit against
Defendants under Title IX of the Education Amendments of
1972, as amended, 20 U.S.C. § 1681, et. seq., based upon their
alleged deliberate indifference to a sexual relationship between
Bostic and her track coach John Smith, also named as a
defendant, while she was a high school student. The jury
returned a verdict in favor of all defendants, except Smith, on all
claims against them, finding only Smith liable. The District
Court subsequently denied Bostic’s motion for a new trial. On
appeal, Appellants contend that the district court erred in
instructing the jury on who is an “appropriate official” and what
constitutes “actual notice” for purposes of Title IX liability.

                       I. JURISDICTION

        The District Court had federal question jurisdiction
pursuant to 28 U.S.C. § 1331 and exercised supplemental
jurisdiction pursuant to 28 U.S.C. § 1367. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.

      II. FACTUAL AND PROCEDURAL BACKGROUND




  1
       For ease of reference, we will refer only to Jennifer as
Bostic.

                                3
       A.     Factual Background

        In the spring of 1999, Bostic was fifteen years old, a
sophomore at Smyrna High School, and a member of the
school’s track team, which was coached by Smith. A sexual
relationship developed between Bostic and Smith. The
relationship included numerous sexual encounters during and
after the school day, both on and off campus, and continued for
approximately one year.

       The relationship became a topic of discussion among
students and generated reports that reached Principal Clarence
Lloyd and Associate Principal Anthony Soligo. Bostic’s
parents became concerned about the close relationship that they
observed between Bostic and Smith, including an incident when
Bostic and Smith were found alone together in a car at night.

       In September 1999, Mr. Bostic met with Lloyd and
expressed his concerns. Lloyd told Mr. Bostic that he would
speak with Smith and get back to him. Lloyd subsequently
called Smith into his office and, in the presence of Soligo and
James Kiger, the school’s athletic director, discussed with Smith
the allegations made by Mr. Bostic. At the meeting, Smith
stated that he was sitting in the car discussing his marital
problems with Bostic. Lloyd warned Smith that being alone
with a student at night in a parked car was inappropriate and
told Smith to avoid improper conduct. Soligo also told Smith
that he should “minimize contact” with Bostic. Smith
responded that he had “it covered.” Lloyd subsequently called

                               4
Mr. Bostic and left a message describing what he had done and
asking Mr. Bostic to call him back if he had any further
concerns. Mr. Bostic did not call back.

       Michael Feldman, a teacher at the school, subsequently
saw Smith and Bostic standing together in the hallway on two
occasions. Feldman stated that they were so close together that
they appeared to be two students, rather than a teacher and a
student. Feldman discussed the incidents with an assistant
principal, who conveyed the information to Lloyd.

       After learning of the hallway incidents, Lloyd summoned
Smith for another meeting with him and Soligo. At that
meeting, Lloyd reprimanded Smith and told him to cease one-
on-one contact with Bostic. Lloyd stated that he “felt that he
gave him a very strong reprimand, that this was not going to be
tolerated.” Lloyd then spoke with Bostic, who told him that
there was “nothing going on.”

        Lloyd told Ron Eby, assistant superintendent for the
school district, about the concerns regarding Bostic and Smith
and what he had done. Lloyd also asked whether he should do
anything else. Eby told him to keep an eye on the situation and
relayed the information to Debbie Wicks, the superintendent of
the district.

       A few months later, Smith’s wife, also a teacher at
Smyrna High School, told Lloyd that she had caught Smith and
Bostic alone in her room at school. The next day, Mrs. Bostic

                              5
told Lloyd that she had purchased a clone pager, was
monitoring Bostic’s pages, and had hired a private investigator
to monitor the situation. Lloyd spoke with Smith again and
expressed his concerns. Smith admitted calling Bostic, but he
told Lloyd it was about track practice and again denied any
illicit interaction with Bostic.

        In early February 2000, Mrs. Bostic asked Lloyd to allow
a private investigator she had hired onto the school campus and
to install cameras to monitor Bostic and Smith. Eby advised
Lloyd not to allow the investigator on campus, but Eby stated
that he would contact the District Attorney’s office regarding
the cameras.

      Wicks set up a meeting with Eby and Smith, at which
Smith again denied any improper relationship with Bostic.
Because Smith seemed credible at the meeting, the
administrators took no further action.

       Mrs. Bostic then spoke with Barry Meekins, a member
of the Smyrna Board of Education, about her concerns. On the
same day, Meekins called Wicks, asked why he had not been
informed of the situation, and stated that, based on what Mrs.
Bostic had said, he was going to call the police. Although her
reasons for doing so are unclear, Wicks tried to dissuade
Meekins from calling the police. On February 28, two police
officers spoke with Wicks and told her that they were
investigating a possible relationship between Smith and a
different student. Wicks suspended Smith that day. Smith

                               6
subsequently was arrested and pled guilty to crimes involving
both students.

       B.     Procedural Background

        Bostic’s complaint alleged that the Smyrna Defendants
were liable under Title IX, and that all defendants were liable
under 42 U.S.C. § 1983, and state common law. The Smyrna
Defendants moved for summary judgment on all claims against
them. The motion was granted as to certain state common law
claims and the Title IX claims against Lloyd and Soligo. The
District Court, however, let stand the § 1983 and Title IX
claims. It concluded that there were material issues of fact with
regard to whether the relevant officials had “actual knowledge”
of the relationship and whether their response was “deliberately
indifferent.”

      The case went to trial and the jury found for the Smyrna
Defendants on all remaining claims. The jury did, however,
find Smith liable and assessed damages against him in the
amount of $400,000.

       Bostic moved for a new trial on the grounds that (1) the
verdict was against the great weight of the evidence, and (2) the
District Court’s jury instructions with regard to “actual notice,”
“appropriate official,” “supervisory liability,” and “lack of
training” were erroneous. The District Court denied the motion,
and Bostic timely appealed.


                                7
                        III. ANALYSIS

        Bostic’s sole contention on appeal is that the District
Court’s instructions on “actual notice” and “appropriate
official” under Title IX misstate the law and were contrary to
the teachings of the Third Circuit and the United States
Supreme Court.2

       A.     Objection raised below

        The Smyrna Defendants contend that Bostic failed to
object to the Title IX jury instructions below. In order to
preserve an objection “to an instruction or the failure to give an
instruction,” a party must timely object “on the record, stating
distinctly the matter objected to and the grounds of the
objection.” Fed. R. Civ. P. 51(c)(1). “Generally, a party who
does not clearly and specifically object to a charge he believes
to be erroneous waives the issue on appeal.” Alexander v. Riga,
208 F.3d 419, 426 (3d Cir. 2000); see also Fed. R. Civ. P.
51(d)(1). However, we “may consider a plain error in the
instructions affecting substantial rights that has not been
preserved as required by Rule 51(d)(1)(A) or (B).” Fed. R. Civ.
P. 51(d)(2).


  2
       Bostic does not contest the jury’s verdict in favor of
Appellees on her 42 U.S.C. § 1983 claim, the jury instructions
pertaining to “supervisory liability” and “lack of training,” or
the denial of her motion for a new trial based on the weight of
the evidence.

                                8
        During a charge conference held in chambers, the Court
asked the parties to review the jury instructions he had
formulated, advising them to pay “particular attention to Title
IX.” After a short recess, the Judge returned and inquired
whether “there [was] anything . . . in the substance of the
instructions thus far that we ought to raise.” Bostic’s counsel
stated, “I still request our instructions on Title IX. But I don’t
have any objections at this point as to the instruction.”
Although Bostic’s counsel subsequently reiterated his request
for the Court to give his proposed instruction, he did not “stat[e]
distinctly the matter objected to and the grounds of the
objection,” as required by Rule 51(c)(1). To the contrary, he
specifically stated that he did not have any objections to the
Title IX instruction. We therefore review for plain error.
“Under such circumstances, we will overturn a verdict ‘only
where the error is fundamental and highly prejudicial or if the
instructions are such that the jury is without adequate guidance
on a fundamental question and our failure to consider the error
would result in a miscarriage of justice.’” Watson v. S.E. Penn.
Transp. Auth., 207 F.3d 207, 212 (3d Cir. 2000) (quoting Smith
v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir. 1998)).

       B.     Jury instructions

        Title IX provides in pertinent part that “[n]o 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.” 20 U.S.C. § 1681(a). Title IX encompasses sexual

                                  9
harassment of a student by a teacher and is enforceable through
an implied private right of action for damages against a school
district. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,
75-76 (1992).

        In order to enforce Title IX’s nondiscrimination mandate,
an agency that disburses federal education funds must provide
“notice to an ‘appropriate person’ and an opportunity to rectify
any violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 290 (1998) (quoting 20 U.S.C. § 1682). Relying on these
requirements, the Supreme Court held in Gebser that damages
may not be recovered under Title IX “for the sexual harassment
of a student by one of the district’s teachers . . . unless an
official of the school district who at a minimum has authority to
institute corrective measures on the district’s behalf has actual
notice of, and is deliberately indifferent to, the teacher’s
misconduct.” Id. at 277. An “appropriate person” is “an
official who at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the . . .
[district’s] behalf.” Id. at 290. “Actual notice” must amount to
“actual knowledge of discrimination in the recipient’s
programs.” Id. Further, “the response must amount to
deliberate indifference to discrimination. . . . The premise, in
other words, is an official decision by the recipient not to
remedy the violation.” Id.

        Here, the district court instructed the jury in pertinent
part as follows:


                               10
In order for Jennifer Bostic to establish her Title
IX claim against the Institutional Defendants, she
has the burden of proving by a preponderance of
the evidence that a school official with the power
to take action to correct the discrimination had
actual notice of the discrimination, and, further,
that the Institutional Defendants then responded
to that notice with deliberate indifference. . . .

An educational institution has “actual notice,”
sometimes called “actual knowledge” of
discrimination[,] if an appropriate person at the
institution has knowledge of facts sufficiently
indicating substantial danger to a student so that
the institution can reasonably be said to be aware
of the danger.

An “appropriate person” is the type of school
official I’ve referred to previously, namely one
with the power to take action to correct the
discrimination.     A school principal who is
entrusted with the responsibility and authority
normally associated with that position will
ordinarily be an “appropriate person.” Other
school officials may be “appropriate persons,”
depending on their power to take corrective
action to address the discrimination and institute
corrective measures.


                        11
               1.      Actual notice

        Appellants contend that the “actual notice” requirement
is satisfied by “information sufficient to alert the principal to the
possibility that a teacher was involved in a sexual relationship
with a student.” They argue that the district court’s instruction
used a higher standard of notice than that required by Gebser
and by Warren v. Reading Sch. Dist., 278 F.3d 163 (3d Cir.
2002).3

       Contrary to Bostic’s contention, Gebser never set forth
a standard of “actual notice” based upon “information sufficient
to alert the principal to the possibility that a teacher was
involved in a sexual relationship with a student.” Rather,
Gebser clearly stated that an “appropriate person” must have
“actual knowledge of discrimination in the recipient’s programs
and fail[] adequately to respond.” Gebser, 524 U.S. at 290. The
excerpt of Gebser cited by Bostic is taken out of context from
a section of the opinion in which the Court applied the
framework it had established to the facts of the case. What the
Court actually stated was that information that “consisted of a
complaint from parents of other students charging only that [the
teacher] had made inappropriate comments during class . . . was


  3
       Warren was concerned with who is an “appropriate
person” and did not address the “actual notice” issue. See
Warren, 278 F.3d at 171-75 (discussing the standard for who is
an “appropriate person” and whether the plaintiff established
that an “appropriate person” had actual knowledge).

                                 12
plainly insufficient to alert the principal to the possibility that
[the teacher] was involved in a sexual relationship with a
student.” Id. at 291 (emphasis added).

        Moreover, given the Court’s express rejection of
constructive notice or respondeat superior principles to permit
recovery under Title IX, it is unlikely that it intended “actual
notice” to be based on a “possibility.” See id. at 285-90.
Indeed, in a subsequent opinion, the Court noted that “Gebser
thus established that a recipient intentionally violates Title IX .
. . where the recipient is deliberately indifferent to known acts
of teacher-student discrimination.” Davis v. Monroe County Bd.
of Educ., 526 U.S. 629, 643 (1999) (emphasis added). Because
a “possibility” cannot be equated with a “known act,”
Appellants’ proffered jury instruction on “actual notice” did not
correctly set forth the law; therefore, the District Court did not
err in rejecting it.

       Bostic also contends that the District Court erred in
including language relating to “substantial danger” in the
“actual notice” instruction. This language is identical to that
used in 3C Fed. Jury. Prac. & Instr. § 177.36 (5th ed. 2001):

       An educational institution has “actual
       knowledge” if it knows the underlying facts,
       indicating sufficiently substantial danger to
       students, and was therefore aware of the danger.




                                13
Id. The instruction subsequently cites to both Davis and
Gebser. Although the “substantial danger” language does not
appear in either case, neither is it inconsistent with the standard
set forth in those cases regarding “actual knowledge.” See
Davis, 526 U.S. at 643 (recipient must be deliberately
indifferent to “known acts of teacher-student discrimination”);
Gebser, 524 U.S. at 290 (recipient must have “actual knowledge
of discrimination”).

        Bostic correctly points out that the substantial danger
language originates from a pre-Gebser Fifth Circuit opinion,
Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 653
(5th Cir. 1997). However, Gebser itself affirmed another Fifth
Circuit opinion that relied upon the reasoning in Rosa H. See
Gebser, 524 U.S. at 279-80; Doe v. Lago Vista Indep. Sch.
Dist., 106 F.2d 1223, 1226 (5th Cir. 1997) (citing the standard
in Rosa H. that “school districts are not liable in tort for teacher-
student harassment under Title IX unless an employee who has
been invested by the school board with supervisory power over
the offending employee actually knew of the abuse, had the
power to end the abuse, and failed to do so”). We therefore
reject Appellant’s contention that Rosa H. and the “substantial
danger” language are no longer validly applied to Title IX. The
District Court’s instruction on actual notice did not constitute
error, much less plain error.

               2.      Appropriate person

       Bostic also challenges the District Court’s instruction

                                 14
regarding “appropriate person.” She contends that the jury
should have been instructed that Lloyd and Soligo were both
appropriate officials as a matter of law, given that Lloyd’s
position as principal and Soligo’s position as assistant principal
were undisputed.

       We concluded in Warren that “a school principal who is
entrusted with the responsibility and authority normally
associated with that position will ordinarily be ‘an appropriate
person’ under Title IX.”            Warren, 278 F.3d at 171.
Nevertheless, contrary to Appellants’ contention, that did not
end the inquiry. Rather, we went on to state that “we must still
determine if the evidence here was sufficient to allow a
reasonable jury to conclude that ‘an appropriate person’ had
actual knowledge of . . . [the] abuse.” Id. Warren therefore
does not support Appellants’ argument that Lloyd and Soligo
should be deemed appropriate persons, as a matter of law, by
virtue of their positions. Warren did conclude that the district
court erred in failing to instruct the jury that the school guidance
counselor could not be an appropriate person, based on the
record in that case. Id. at 174. However, this is not analogous
to saying, as Bostic contends, that the District Court here should
have instructed that Lloyd and Soligo are appropriate officials.
The Court did not err in failing to so instruct the jury.
Moreover, its instruction regarding a school principal followed
the language of Warren precisely.




                                15
                      IV. CONCLUSION

       Based upon the foregoing, we affirm the judgment of the
District Court.4




  4
        Because of our resolution of the jury instructions issues
raised by Appellants, it is unnecessary to address Appellees’
contention that the District Court erred in holding that the
relationship between Smith and Bostic was “unwelcome” as a
matter of law, or to resolve whether Appellees preserved the
issue, despite their failure to file a cross-appeal on the issue.

                               16
