                                 ___________

                                 No. 94-3048
                                 ___________

S.B.L., by and through his           *
parent and next friend; T.B.,        *
individually, and as parent          *
and next friend; B.D.C., Jr.,        *
by and through his parent and        *
next friend; C.J.C.,                 *
individually, and as parent          *
and next friend,                     *
                                     *
           Appellees,                *
                                     *
     v.                              *
                                     *
James A. Evans;                      *
                                     *
           Defendant,                *
                                     *
Elaine Brame, Hume School            *
District,                            *
                                     *
           Appellants.               *
                                         Appeals from the United States
                                         District Court for the
                                         Western District of Missouri.
                                 ___________

                                 No. 94-3341
                                 ___________

S.B.L., by and through his           *
parent and next friend; T.B.,        *
individually, and as parent          *
and next friend; B.D.C., Jr.         *
by and through his parent and        *
next friend; C.J.C.,                 *
individually and as parent and       *
next friend,                         *
                                     *
           Appellants,               *
                                     *
James A. Evans,                      *
                                     *
           Defendant,                *
                                     *
Elaine Brame; Hume School            *
District,                            *
                                     *
           Appellees.                *
                                 ___________

                   Submitted:    April 12, 1995

                        Filed:   April 4, 1996
                                 ___________

Before LOKEN, Circuit Judge, and HENLEY and FRIEDMAN*, Senior Circuit
     Judges.
                             ___________

HENLEY, Senior Circuit Judge.


     Elaine Brame, a school official in the Hume School District (HSD),
appeals the district court's denial of her motion for summary judgment
seeking official immunity from a state law negligence claim filed by S.B.L.
and B.D.C.1, former elementary school students in HSD, and their parents
(collectively plaintiffs).   Pursuant to 28 U.S.C. § 1292(b), plaintiffs
challenge the district court's grant of summary judgment in favor of Brame
on their 42 U.S.C. § 1983 claim.     Also pursuant to section 1292(b), HSD
challenges the district court's denial of its motion for summary judgment
on plaintiffs' sexual harassment claim under Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 et seq.        We affirm the district
court's denial of Brame's motion for summary judgment on her immunity claim
and dismiss the appeal of the district court's order concerning the section
1983 and Title IX claims as improvidently granted.


     For purposes of this appeal, we can briefly state the facts.    During
the 1990-91 school year, S.B.L. and B.D.C. were students in James Evans'
combined fifth and sixth grade class.   In January 1992, Evans was convicted
of sexually assaulting S.B.L. and B.D.C.   Thereafter, plaintiffs filed the
instant action in federal district court, alleging, among other things, a
section 1983 violation and a state-law negligence claim against Brame, who
was the elementary school principal and superintendent of HSD, and a Title


     *The Honorable Daniel M. Friedman, Senior United States
     Circuit Judge for the Federal Circuit, sitting by
     designation.
      1
      Pursuant to the court's own motion, we have replaced with
their initials the names of the minors and their parents involved
in the facts of this case.

                                    -2-
IX claim against HSD.2    Brame and HSD filed motions for summary judgment.
Brame argued she could not be liable under section 1983 for Evans' abuse
because she did not have notice of a pattern of his unconstitutional
conduct and claimed official immunity as to the negligence claim.       HSD
argued it was not liable under Title IX because it had no actual knowledge
of Evans' abuse.   Plaintiffs opposed the motions and in support relied
primarily on the depositions of Evans and Bea Salters, a custodial
grandmother of several of Evans' former students.   Evans testified that he
had "no doubt" that Brame was aware that he took male students from school
to his house for tutoring and other activities.   Salters testified that it
was common knowledge in the small community that Evans socialized at his
house with male students.     In addition, Salters testified that she told
Brame that Evans had sexually abused one of her grandsons when he was on
an unsupervised non-school sponsored overnight trip with Evans and on
another occasion told Brame that Evans had exposed himself to another
grandson when he was at Evans' house.      Brame disputed the allegations,
stating there was a school policy against fraternization and that she was
unaware that Evans socialized with students at his house or took them on
unauthorized trips.      However, Brame admitted that in 1986 Salters had
complained to her that while one of Salters' grandsons was at Evans' house
he said "something" to the child that Salters did not like.   Brame further
stated that when she spoke to Evans about the complaint he assured her he
would talk to Salters and "straighten it out."


     The district court granted Brame's motion for summary judgment




     2
     Plaintiffs also filed federal and state claims against Evans,
who suffered a default judgment and does not appeal.

                                     -3-
on the section 1983 claim.     For purposes of the motion, the court accepted
Salters and Evans' testimony as true, but held that Brame was not liable
under section 1983 because she did not have "notice of a pattern of
unconstitutional acts committed" by Evans, as required by Jane Doe A. v.
Special Sch. Dist., 901 F.2d 642, 645 (8th Cir. 1990).           However, the court
denied Brame's immunity defense on the pendent negligent supervision claim,
holding that under Missouri law she was not a public official, citing
Jackson v. Roberts, 774 S.W.2d 860, 861 (Mo. Ct. App. 1989).


      The court also denied HSD's motion for summary judgment on the Title
IX claim.    Title IX, in relevant part, states: "No person . . . shall, on
the basis of sex, . . . be subjected to discrimination under any education
program or activity receiving Federal financial assistance . . . ."                 20
U.S.C. § 1681(a).      In Franklin v. Gwinett County Pub. Sch., 503 U.S. 60
(1992), the Supreme Court held that Title IX afforded a student a damages
action against a school district on a claim of intentional discrimination
arising from alleged sexual harassment and abuse by a teacher.                However,
the district court noted that neither the Supreme Court nor this court had
set forth the standard of institutional liability under Title IX, and that
lower courts were split on the applicability of the Title VII standard of
holding an employer liable for "sexual harassment if the employer knew or
should have known of the harassment and failed to take remedial action."
Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1327 (8th
Cir. 1994) (quoting Davis v. Tri-State Mack Distrib., Inc., 981 F.2d 340,
343 (8th Cir. 1992)).    Compare Hastings v. Hancock, 842 F. Supp. 1315, 1318
(D.   Kan.   1993)   (Title   VII   standard   applicable   to   Title   IX    hostile
environment claim) with Floyd v. Waiters, 831 F. Supp. 867, 876 (M.D. Ga.
1993) (Title VII standard inapplicable to Title IX claim which requires a
showing of actual knowledge of harassment).             The district court was
persuaded by Floyd and held that HSD could be liable for monetary damages
under Title IX only if it had actual knowledge of a hostile




                                        -4-
environment and failed to remedy it.       The court denied HSD's motion for
summary judgment, finding there was a disputed issue of fact concerning the
extent of HSD's "knowledge of Evans's alleged prior sexual misconduct and
of his unsupervised 'field trips.'"


       Brame filed a notice of appeal of the district court's denial of her
immunity defense on the pendent negligence claim.     Pursuant to plaintiffs
and HSD's request under section 1292(b), the district court certified that
the section 1983 and Title IX issues presented "controlling question[s] of
law as to which there [are] substantial ground[s] for difference of opinion
and that an immediate appeal of the order may materially advance the
ultimate termination of the litigation."     An administrative panel of this
court granted a joint motion for permission to appeal under section
1292(b).


       We first address Brame's argument that the district court erred as
a matter of law in rejecting her immunity defense on the pendent negligence
claim.     Brame does not dispute that the issue is controlled by state law
and that "decisions of the state's highest court are to be accepted as
defining state law unless the state court 'has later given clear and
persuasive indication that its pronouncement will be modified, limited, or
restricted.'"     Gilstrap v. Amtrak, 998 F.2d 559, 560 (8th Cir. 1993)
(quoting Taylor v. Arkansas Louisiana Gas Co., 793 F.2d 189, 191 (8th Cir.
1986)).    She acknowledges that in Lehmen v. Wansig, 624 S.W.2d 1, 2 (Mo.
1981), the Missouri Supreme Court reversed a ruling granting immunity to
a school principal and superintendent from negligence claims.     In Lehmen,
the court noted that in Spearman v. University City Pub. Sch. Dist., 617
S.W.2d 68, 71 (Mo. 1981), it had held that teachers were not entitled to
assert the defense of official immunity for acts of negligence and believed
that Spearman was "apposite to principals and superintendents charged with
liability for their personal fault for nothing appears immunizing these
officials from actions for their direct tortious acts."      624 S.W.2d at 2
n.2.




                                     -5-
     Brame, however, argues that the statements in Lehmen concerning the
immunity of principals and superintendents are dicta.      Although we are
inclined to disagree, see Robinson v. Norris, 60 F.3d 457, 460 (8th Cir.
1995) (statements necessary to court's decision are not dicta), petition
for cert. filed, 64 U.S.L.W. 3399 (U.S. Nov. 21, 1995) (No. 95-817), even
if the statements are dicta, they are persuasive authority and Brame "does
not suggest that any subsequent [Missouri] case has questioned this
definitive statement . . . by the highest court of the State."   Donovan v.
Farmers Home Admin., 19 F.3d 1267, 1269 (8th Cir. 1994).   While Brame notes
that in Webb v. Reisel, 858 S.W.2d 767, 769-70 (Mo. Ct. App. 1993), an
appellate court held that a director of public school transportation was
a public official entitled to assert an immunity defense, she acknowledges
that Webb "ignores" Lehmen.   Although in Lehmen and Spearman, the state
supreme court did not expressly decide the question whether a principal or
superintendent was a public official, the court made "clear that teachers
[principals and superintendents] are not immune from liability for their
negligent acts or omissions."     Jackson v. Roberts, 774 S.W.2d at 861
(teacher and assistant principal not immune from negligence action).   Thus,
the district court did not err in rejecting Brame's claim of immunity.3



     We now turn to the section 1292(b) appeal of the federal claims.    As
previously indicated, section 1292(b) provides that if a district court
certifies that an "order involves [1] a controlling question of law as to
which there is [2] a substantial ground for difference of opinion and [3]
that an immediate appeal from the order may materially advance the ultimate
termination of




     3
      We are aware that in Larson v. Miller, No. 94-2691, slip op.
at 16-17 (8th Cir. Feb. 20, 1996) (en banc), this court held that
under the Nebraska Political Subdivision Tort Claims Act, Neb. Rev.
Stat. § 13-905 to § 13-926 (Reissue 1991), school officials were
entitled to immunity on a student's negligence claim.       Because
Larson concerns Nebraska law, it is not controlling here.

                                   -6-
the litigation[,] . . . [t]he Court of Appeals . . . may thereupon, in its
                                                                             4
discretion, permit an appeal to be taken from such order."                       We have
observed       that    "[i]nherent   in   these   requirements   is   the   concept    of
ripeness."      Paschall v. Kansas City Star Co., 605 F.2d 403, 406 (8th Cir.
1979).       In other words, even if all three requirements are satisfied, the
factual basis of a claim must be developed so that "we can make a precise
decision upon a precise record--not an abstract answer to an abstract
question."       Id. at 407.    "The record before us should assure us that the
legal issue has arisen and exactly how the problem arose before we fashion
a response."          Id.


     In Paschall, although this court had granted permission to appeal an
order concerning an antitrust issue and the issue had been briefed and
argued, we dismissed the appeal.            The court pointed out that it was not
criticizing the district court for certifying the order or the panel for
granting permission to appeal, explaining that a "close review of the
merits . . . was necessary before this court arrived at the conclusion that
section 1292(b) certification was not proper."           Id.   After review the court
realized that resolution of the difficult legal issue required "[a] more
complete factual and legal development in the district court."                        Id.
Moreover, the court realized that "once factual and legal development of
this case [wa]s completed . . ., the decision requested of us may no longer
be necessary."          Id.


     Likewise, we reluctantly conclude that permission to appeal under
section 1292(b) was improvidently granted.           As to the Title IX issue, there
is little doubt that the question of institutional liability presents "a
controlling question of law as to which there




         4
       The Supreme Court has recently made clear that "appellate
jurisdiction applies to the order certified to the court of
appeals, and is not tied to the particular question formulated by
the district court." Yamaha Motor Corp. v. Calhoun, 116 S. Ct.
619, 623 (1996).

                                            -7-
is a substantial ground for difference of opinion."   Indeed, on appeal the
parties have presented no less than four different legal theories upon
which to impose liability.    Plaintiffs urge this court to adopt a strict
liability standard, citing Leija v. Canutillo Indep. Sch. Dist., 887 F.
Supp. 947, 953 (W.D. Tex. 1995), or in the alternative ask us to adopt the
Title VII standard of liability, which would subject HSD to liability if
it knew or should have known of Evans' harassment and failed to take
sufficient remedial action.     In response, HSD argues that the strict
liability standard and the constructive knowledge--the "should have known"-
-component of the Title VII standard are incompatible with Franklin's
holding that monetary damages are available for intentional violations of
Title IX.   HSD maintains that only an actual knowledge standard comports
with Franklin.


     It has become apparent to us that because there are a "number of
unresolved factual issues bearing on the framing and formulation of the
legal questions . . . to answer the legal questions presented would require
an exposition sufficiently broad to cover the various factual ramifications
that may occur."   International Soc'y for Krishna Consciousness v. Air
Canada, 727 F.2d 253, 256 (2d Cir. 1984) (per curiam) (internal quotation
omitted).   "[We] decline[] to provide such a sweeping statement."     Id.
"The purpose of section 1292(b) is not to offer advisory opinions 'rendered
on hypotheses which [evaporate] in the light of full factual development.'"
Paschall, 605 F.2d at 406 (quoting Minnesota v. United States Steel Corp.,
438 F.2d 1380, 1384 (8th Cir. 1971)).


     For example, we do not know whether the trier of fact will believe
any or all of Salters' testimony.         If the trier of fact credits her
testimony that she told Brame on two occasions that Evans had sexually
abused her grandsons and HSD failed to take sufficient remedial action, it
may not be necessary to decide whether a strict liability standard is
appropriate or whether HSD had knowledge of a hostile environment based on
Evans'




                                    -8-
"unsupervised field trips."     On the other hand, if the trier of fact
discredits Salters' testimony regarding Evans' abuse, then we would not
have to decide the question whether as a matter of law her testimony was
incredible or too remote in time to establish knowledge of a hostile
environment.


     As was stated in Paschall and fully applicable here:
           The legal questions should not be considered in the
           abstract. There must be precision in the proof of
           fact worthy to serve as the premises essential to
           balance and weigh the legal issues involved. Upon
           full review of the record we are satisfied that
           precision is lacking here. Our analysis leads us
           to conclude that the issues presented on appeal are
           too significant and far reaching to be decided
           without the full evidentiary record.

Paschall, 605 F.2d at 411 (quoting Minnesota v. United States Steel Corp.,
438 F.2d at 1384).   We thus dismiss the appeal of the order denying summary
judgment on the Title IX issue as improvidently granted.


     In addition, permission to appeal the order was improvidently granted
because the section 1983 issue does not present "a controlling question of
law as to which there is a substantial ground for difference of opinion."
Indeed, the district court recognized that in Jane Doe A. this court gave
"clear guidance" on section 1983 liability of school officials.     We note
that the court en banc recently has reaffirmed Jane Doe A.'s requirement
that, among other things, a school official is liable under section 1983
only if he or she has "'[r]eceived notice of a pattern of unconstitutional
acts committed by subordinates.'"   Larson v. Miller, No. 94-2691, slip op.
at 8 (8th Cir. Feb. 10, 1996) (quoting Jane Doe A., 901 F.2d at 642).    In
Larson, this court found that there was no notice of a pattern of abuse
based on one complaint, noting "we have held far more extensive records of
prior unheeded complaints insufficient to constitute a pattern of




                                    -9-
unconstitutional behavior."     Id. at 10.   In particular, we pointed out that
in Jane Doe A. we found no pattern of unconstitutional conduct even though
over a two-year period officials had received complaints that a "bus driver
had used foul language, physically restrained and assaulted children,
kissed a child, placed his hand down a boy's pants, and touched boys'
crotches."    Id.      In the present case, because the section 1983 "legal
issue[] [is] not novel, nor is there a substantial basis for difference of
opinion, as the law is relatively well-settled[,]" it cannot serve as a
basis for the district court's certification under section 1292(b).      White
v. Nix, 43 F.3d 374, 377 n.3 (8th Cir. 1994).5


     Accordingly, we affirm that portion of the district court's order
rejecting Brame's immunity defense on the pendent negligence claim and
remand for further proceedings, and dismiss the section 1292(b) appeal
concerning the Title IX and section 1983 issues as improvidently granted.


     A true copy.


             Attest:


                    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




     5
      Were we to address the merits of the section 1983 claim, we
might well affirm the district court's order granting Brame's
motion for summary judgment. However, because "[t]he requirements
of § 1292(b) are jurisdictional[,]" we dismiss the appeal. White
v. Nix, 43 F.3d at 376. See also Burrell v. Board of Trustees, 970
F.2d 785, 789 (11th Cir. 1992) (dismissing 1292(b) appeal because
"agreement with the district court is so complete and unequivocal
that we cannot make out the 'substantial ground for difference of
opinion' as required by section 1292(b)"), cert. denied, 507 U.S.
1018 (1993).

                                      -10-
