         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                               FILED
                                                                        December 14, 2009

                                    No. 09-40518                      Charles R. Fulbruge III
                                  Summary Calendar                            Clerk



WHITNEY GUILLORY,

                                                  Plaintiff–Appellee
v.

CARROLL THOMAS, Superintendent,

                                                  Defendant–Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:07-CV-163


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Dr. Carrol Thomas, superintendent of the Beaumont Independent School
District (“BISD”) has filed an interlocutory appeal of the district court’s denial
of qualified immunity. We AFFIRM.
                      FACTUAL & PROCEDURAL HISTORY
       In January 2000, BISD hired Ferguson Parker as a band director at Ozen
High School (“OHS”) in Beaumont, Texas. The following fall, Whitney Guillory


*
       Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                       No. 09-40518

began her freshman year at OHS and was a member of the band. Later, during
the same school year, Parker was indicted for exposing himself to a 13 year-old
middle school student, having sexual intercourse with a 15 year-old middle
school student, and having sexual intercourse with a 16 year-old OHS student
(collectively, the “2001 Allegations”).
       BISD conducted its own formal investigation.1 As a result of this
investigation, the BISD Board of Trustees voted to suspend Parker.
       Parker subsequently was tried and acquitted on the criminal charges
related to the 2001 Allegations. BISD offered to rehire Parker as the band
director.2 Upon his rehiring, Superintendent Thomas met with Parker to discuss
the conditions of his reinstatement. They included not having students alone in
his office, not closing his office door, not touching or hugging students, and
monthly or bimonthly observations of Parker by Dr. Thomas.
       Even prior to being rehired, Parker began to have sexual relations with
Guillory. After returning to his former position as OHS band director, Parker
and Guillory sought to conceal their relationship, which continued through 2004.
On occasion, Parker and Guillory left campus during school hours to have sexual




1
      Guillory was one of the students interviewed as part of the investigation. She denied
having experienced or having witnessed any sexual misconduct by Parker.
2
       The district court noted that the record is not clear on exactly what Parker’s status was
with BISD between the time he was initially suspended and the time he went back to work.
However, the district court concluded that “[t]he record is fairly clear that in either event,
Parker did not have a contract with BISD — and BISD had no obligation to make him the
Ozen band director again — when he was acquitted of the 2001 Allegations.” The district
court also explained that “the Court’s ultimate conclusions here would be the same whether
Parker resigned his position or was simply suspended while charges on the 2001 Allegations
were pending.”

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intercourse. On December 14, 2004, Guillory’s mother discovered a nearly-naked
Parker hiding in Guillory’s bedroom closet.
      Hours later, Guillory and her parents, Clarence and Tonya Piper, met with
Dr. Thomas and BISD’s attorney Melody Chappell. There is a factual dispute
concerning what was said during this meeting. Guillory and her parents claim
Dr. Thomas tried to convince them to keep quiet about the incident by explaining
that “the media will make a black man [Parker] look bad.” 3 They also claim that
when Chappell arrived and Dr. Thomas told her “it’s Parker again,” Chappell
began to make such comments to Dr. Thomas as “I told you so,” and “I knew it
would happen again.” Guillory and her parents contend that Chappell’s and Dr.
Thomas’s exchange made it clear that Chappell had advised Dr. Thomas and
other BISD officials not to rehire Parker after his acquittal, but that her advice
had been disregarded. BISD and Dr. Thomas deny that these comments were
made or that Chappell gave any such advice when Parker was rehired.
      Guillory filed a civil suit against BISD, Dr. Thomas, and Parker. The only
claim relevant here is Guillory’s Section 1983 claim for violating her right to
bodily integrity asserted against Dr. Thomas in his individual capacity. See 42
U.S.C. § 1983.
      Dr. Thomas moved for summary judgment on the basis of qualified
immunity. In response, Guillory argued that Dr. Thomas was not entitled to
qualified immunity because he acted with deliberate indifference towards her
constitutional rights by rehiring Parker without adequate supervision or
restrictions despite having actual notice that Parker posed a threat to Guillory.
In addition, Guillory accused Dr. Thomas of later “turning a blind eye” towards


3
      Dr. Thomas, Parker, Guillory, and the Pipers are all African-American.

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Parker’s actual sexual abuse of Guillory.4           In support of this latter claim,
Guillory notes that Parker was able to take her off school grounds during school
hours to abuse her.
       The district court held that Dr. Thomas was not entitled to qualified
immunity. The analysis was this: (1) Guillory alleged a clearly established
constitutional right – the right to bodily integrity; (2) a genuine fact issue exists
concerning whether Dr. Thomas knew of a pattern of inappropriate sexual
conduct by Parker that pointed plainly toward a conclusion that Parker had been
sexually abusing students; (3) a genuine fact issue exists concerning Dr.
Thomas’s course of conduct; (4) a genuine fact issue exists concerning whether
Dr. Thomas acted with deliberate indifference; and (5) a genuine fact issue exists
concerning whether Dr. Thomas’s course of conduct caused a violation of
Guillory’s constitutional rights.
                                     DISCUSSION
       A.     Jurisdiction
       Guillory challenges our jurisdiction to hear this interlocutory appeal.
       Generally, we have jurisdiction only over appeals of “final decisions” of the
district court. See 28 U.S.C. § 1291. However, we have limited jurisdiction over
an interlocutory appeal of a denial of summary judgment where the basis for



4
       Guillory does not allege that Dr. Thomas had actual notice that Parker was sexually
abusing Guillory. Rather, she alleges that at the time the 2001 Allegations were made, and
before Parker’s sexual abuse of Guillory began, Dr. Thomas and BISD received reports that
Parker was directing inordinate attention towards Guillory. Since she was questioned as part
of BISD’s internal investigation of the 2001 Allegations, Guillory claims that Dr. Thomas
“essentially concedes that he was on actual notice that Parker posed a threat of sexually
abusing Guillory.”



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denial was qualified immunity. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004) (en banc).
      We may review on an interlocutory appeal a district court’s “purely legal
question” of whether the official’s conduct was “objectively unreasonable in light
of clearly established law.” Id. at 347. We may not review, though, a finding
that a “genuine issue of fact exists regarding whether the defendant(s) did, in
fact, engage in such conduct.” Id. at 346. Finally, and straddling the legal and
factual divide, “the materiality of any factual dispute” is susceptible to review,
but not the genuineness of the dispute. Id. at 347-48.
      Accordingly, there is jurisdiction today to review for error in the district
court’s “assessing the legal significance of the conduct the district court deemed
sufficiently supported for purposes of summary judgment.” Id. at 348. In
making this assessment, Guillory’s version of the facts is accepted as true. Id.
We review de novo the district court’s conclusions concerning the materiality of
the facts. Id. at 349.
      B.    Liability
      Although this appeal solely concerns qualified immunity, we briefly note
the circumstances under which a school supervisor can be liable for an
employee’s sexual abuse of a student. Dr. Thomas may be subject to liability if
there is evidence accepted as true of the following:
      (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

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                                  No. 09-40518

      (3) such failure caused a constitutional injury to the student.

Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 455 (5th Cir. 1994) (en banc). If Dr.
Thomas is entitled to qualified immunity, though, the suit is to be dismissed.
See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (explaining that qualified
immunity is an immunity from suit rather than a defense to liability).
      C.    Qualified Immunity
      A student is claiming that a supervisory official at her school is liable
under Section 1983 for an employee’s sexual abuse. We review the application
of qualified immunity to such facts.
      The doctrine of qualified immunity provides protection to government
officials who are engaged in discretionary functions. They will “generally” be
“shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Therefore, we apply a two-step analysis to determine whether a defendant is
entitled to qualified immunity. First, viewing the evidence in a light most
favorable to the plaintiff, we determine if the defendant’s conduct violated the
plaintiff’s constitutional rights. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.
2007). If so, then we assess “whether the defendant’s actions were objectively
unreasonable in light of clearly established law at the time of the conduct in
question.” Id. at 411.
      For the purposes of the qualified immunity test, a constitutional right is
clearly established when it is “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Gates v. Tex. Dep’t of
Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008) (citations


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                                   No. 09-40518

omitted). In addition, an official’s conduct is considered objectively reasonable
“unless all reasonable officials in the defendant’s circumstances would have then
known that the conduct violated the Constitution.” Id. However, an official’s
conduct is ordinarily not objectively reasonable if it violates a clearly established
right, because “a reasonably competent public official should know the law
governing his conduct.” Harlow, 457 U.S. at 818-19.
      In order to determine if Dr. Thomas is entitled to qualified immunity, we
first assess whether the facts alleged, taken in a light most favorable to Guillory,
demonstrate that Dr. Thomas’s conduct violated a clearly established
constitutional right. Gates, 537 F.3d at 418. It is important to remember that
it is Dr. Thomas’s conduct that is at issue here. In her amended complaint,
Guillory alleges that Dr. Thomas acted with deliberate indifference by rehiring
Parker despite contrary legal advice and without any restrictions, safeguards,
or adequate supervision. She claims that Dr. Thomas’s actions and inactions
were a proximate cause of her sexual abuse by Parker.
      Schoolchildren “have a liberty interest in their bodily integrity that is
protected by the Due Process Clause of the Fourteenth Amendment and . . .
physical sexual abuse by a school employee violates that right.” Taylor Indep.
Sch. Dist., 15 F.3d at 445. This constitutional right was clearly established
during all times relevant to this case. Id. A school supervisor, such as Dr.
Thomas, can be liable for an employee’s violation of a student’s right to bodily
integrity if the supervisory failures that resulted in the sexual abuse “manifest
a deliberate indifference to the constitutional rights of that child.” Id. This legal
principle was also clearly established at all times relevant to this case. Id.




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      There is little or no dispute that the sexual activity occurred, but the
district court found a genuine issue of material fact regarding whether Dr.
Thomas’s conduct was a constitutional violation. Specifically, the district court
found genuine fact issues concerning Dr. Thomas’s knowledge of Parker’s abuse
of schoolchildren regardless of his acquittal on criminal charges. The district
court described this alleged knowledge as one “of a pattern of inappropriate
sexual conduct by Parker that pointed plainly toward a conclusion that Parker
had been sexually abusing students.” 5 The district court also found genuine fact
issues concerning whether Dr. Thomas acted with deliberate indifference to the
constitutional rights of Guillory and other OHS students, and whether Dr.
Thomas’s conduct caused Parker’s violation of Guillory’s constitutional rights.
      We lack jurisdiction to analyze whether a reasonable view of the evidence
would find the factual dispute genuine, but we have authority to decide if such
a dispute would be material. Kinney, 367 F.3d at 346. We conclude that the
dispute is material. Whether Dr. Thomas had knowledge of a pattern of conduct,
was deliberately indifferent to it, and the indifference caused the violation, are
material facts. The district court did not err in determining that Guillory had
alleged a violation of a clearly established constitutional right.
      We now turn to whether Dr. Thomas’s conduct was objectively reasonable.
Gates, 537 F.3d at 419. We have already discussed that an official’s conduct is
ordinarily not objectively reasonable if it violates a clearly established right,




5
        There do not appear to be factual findings concerning whether Dr. Thomas knew that
Parker was specifically abusing Guillory. However, Guillory argues that Dr. Thomas knew
or should have known that Parker was “grooming” her for sexual abuse when BISD conducted
its internal investigation into the 2001 Allegations.

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                                       No. 09-40518

because “a reasonably competent public official should know the law governing
his conduct.” Harlow, 457 U.S. at 818-19.
       Viewing the evidence in a light most favorable to Guillory, she has
sufficiently alleged that Dr. Thomas’s conduct violated her clearly established
constitutional right to bodily integrity, a right any reasonably competent school
official would have recognized. Therefore, Dr. Thomas’s alleged conduct, if
proved true, was not objectively reasonable.6 Id.
       We conclude that the district court applied the proper test for determining
whether Dr. Parker is entitled to qualified immunity. We also hold that the
factual disputes identified in the district court’s opinion are material. Therefore,
Dr. Thomas is not as a matter of law entitled to qualified immunity.
       We AFFIRM and REMAND for further proceedings.




6
        If a defendant pleaded that extraordinary circumstances existed and can prove that he
“neither knew nor should have known of the relevant legal standard,” then the defendant may
be entitled to qualified immunity despite violating a clearly established law. Harlow, 457 U.S.
at 819. However, this does not appear to be the case here.

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