PATRICK E. HIGGINBOTHAM, Circuit Judge:
This appeal raises difficult questions of law in a difficult, tragic setting. Jessica Gonzalez was sexually molested by Andres Mares, her first grade teacher, while attending one of the elementary schools within the Ysleta Independent School District. After Jessica's parents, Gloria and Victor Gonzalez, discovered that the YISD Board of Trustees had elected to keep Mares in the classroom in the face of similar allegations of sexual abuse two years earlier, they brought this § 1983 action against the school district in the U.S. District Court for the Western District of Texas. The case went to the jury on the claim that the district policy regarding sexual abuse was a legal cause of the denial of Jessica's constitutional right to bodily security. The verdict was $500,000.
On appeal, YISD contends that the district court should have instructed the jury that the school district could be held liable under § 1983 only if the Board's failure to relieve Mares of his teaching duties manifested a deliberate indifference to the constitutional rights of students. The school district also submits that the trial evidence is insufficient to support a finding of liability under this heightened standard of fault. We agree and, finding that the second claim requires reversal, we reverse and render judgment in favor of the school district.
Ysleta Independent School District is the seventh-largest in Texas, educating over 50,000 students. Prior to 1984, YISD had no formal policy regarding sexual abuse of students by teachers; the issue was instead left to the discretion of the individual school principals. In 1984, YISD adopted a written policy incorporating provisions of the Texas Family Law Code. In accordance with Texas law, the policy provided that "any person(s) who suspects that a child's physical or mental health or welfare has been, or may be, adversely affected by abuse or neglect ... must report his or her suspicions to the Texas Department of Human Resources and/or to a law enforcement agency." The primary responsibility for contacting the Department for Human Resources remained with the school principal, who was charged with making an oral report "without delay"
The exception to this otherwise unbroken pattern of teacher removal was Andres Mares, the man who molested Jessica Gonzalez. Mares' penchant for inappropriate conduct with his young female students first surfaced in 1981. He was at that time a Spanish teacher at the Ascarate Elementary School. In November 1981, Nellie Morales, Principal of Ascarate, received a complaint from the parent of one of his students. The parent informed Principal Morales that Mares frequently allowed girls to sit on his lap during class, a practice the parent and Morales considered highly improper. After consulting Rudy Resendez, Assistant Superintendent for Elementary Schools, Morales responded to this report with an informal memorandum and an oral reprimand of Mares. She nonetheless received a second, more serious complaint from the same parent one month later, alleging that Mares had this time placed his hand around the waist of her daughter. Even though the child and Mares both verified the incident, Morales' disciplinary response was limited to issuing a second oral reprimand and directing Mares to enter a general "improvement" program. This sanction in any event apparently had a salutory effect, as allegations regarding Mares' conduct came to a temporary halt.
In January 1985, however, Principal Morales received an urgent phone call from Graciela Peña, the mother of one of the female students in Mares' fifth grade Spanish class. Mrs. Peña insisted that Morales remove her daughter, Leticia, from Mares' class at once. When asked the reason for this request, Mrs. Peña, after some hesitation, informed Morales that Leticia had told her that Mares had placed his hand on her waist and stuck his tongue in her ear. Morales again sought direction from Resendez regarding the course of investigation. Resendez this time enlisted the aid of Kenneth DeMore who, as the school district's Director of Employee Relations, usually handled teacher grievances and complaints. Morales first met with Mares to discuss the incident. Mares admitted that he had been alone in the classroom with Leticia and had placed his hand around her waist, but denied any further improper conduct. Morales and DeMore interviewed Leticia a few days later on February 4, 1985. Leticia told them that Mares had approached her from behind as she was drawing at the blackboard, wrapped his arm around her waist, and stuck his tongue in her ear.
This interview marked the end of the investigatory process. Testimony at trial disclosed the school officials' knowledge of the 1981 allegations against Mares, that Morales, the only person who questioned both Leticia and Mares, believed that Leticia was telling the truth, and that the administrators considered the alleged conduct to be actionable sexual abuse. Nonetheless, Morales, DeMore, and Resendez neither called the Department of Human Resources nor took any immediate remedial steps on their own. Rather, the school officials decided to "drop the matter" and merely include the incident in the customary evaluation of Mares' overall classroom performance.
Leticia Peña's allegations of sexual abuse had no discernible effect on Mares' standing at Ascarate Elementary School. On February 15, just two weeks after his alleged assault, Morales gave Mares what she described as a "good evaluation," rating his classroom performance just one point short of "exceeds expectations." After Mares filed a grievance challenging this evaluation as "unfair," Morales adjusted his score even higher in April. Mares capped an eventful spring later that month by being elected President of the Ascarate Elementary School PTA.
Mares' election came as a shock to Graciela Peña and her husband Fernando. Contrary to the account given by Morales, the Peñas testified that they had neither failed to cooperate nor asked her to terminate the school district's investigation of Mares' assault on their daughter. While they may have expressed some misgivings about the repeated questioning of Leticia, the Peñas were under the impression that the investigation would continue until the appropriate resolution was reached. Nor was the resolution of their complaint subject to doubt. Resendez and DeMore testified that Morales was the only school official to talk to Mrs. Peña regarding the incident. Mrs. Peña stated at trial, however, that Resendez had personally informed her that Mares would be brought to YISD's central office for a recorded hearing on the matter and would receive an official reprimand directing him to seek counseling and avoid any further one-on-one contact with students. Mares was also to be transferred to another school where he would be closely monitored to ensure that he complied with these terms. Mares' election as PTA President signalled to the Peñas that these remedial steps had not been taken, that, far from being punished for his transgression, Mares had in fact been "rewarded."
The Peñas were not without means to correct this perceived breach of trust, for Mares' election to the Ascarate PTA presidency coincided with Fernando Peña's own election to the YISD Board of Trustees. Upon taking office in May, Mr. Peña went to Principal Morales' office to determine whether the official reprimand promised his wife in February had been placed in Mares' file. After Peña was unable to locate the reprimand in the files at Ascarate, Morales told him that it had been forwarded to the central office. Peña then discovered that those files contained neither the reprimand nor any evidence of the investigation into Mares' sexual abuse of his daughter. It was at this point that Mr. Peña learned that, contrary to the assurances given to Mrs. Peña by Resendez, school officials had, as DeMore admitted at trial, simply "dropp[ed] the matter."
Mr. Peña then decided to take up the Mares incident directly with the Board. After documenting the sharp divergences between the actions promised by school officials and those that were taken, Peña called an emergency meeting of the Board of Trustees in late May. With the entire Board as well as Resendez, YISD Superintendent Jim Hensley, and Deputy Superintendent Jerry Barber present, Peña submitted documents detailing Mares' assault on Leticia and the administration's subsequent attempt to "cover up" the incident. Resendez responded to Peña's strong charges by offering his own account of the events surrounding the investigation. Resendez informed the Board that the district had determined that the allegations lacked substance and that the investigation had been closed at Mrs. Peña's request. Mr. Peña in turn asserted that there was no truth to Resendez's statements and, in particular, vehemently denied that his wife had ever asked school officials to halt their investigation. Hensley and Barber, who had assumed their roles just a few weeks before in early May, then intervened, stating that they had not been advised of this incident involving Mares. It was determined that Barber would investigate the incident personally and deliver a full report to the Board.
School district policy provided that employees such as Mares could be dismissed only after a hearing before the Board of
The investigation supporting these findings was cursory at best. Despite Mr. Peña's charges that Morales, DeMore, and Resendez had repeatedly "lied" about their handling of Leticia's case, Barber's inquiry into the incident consisted solely of discussions with these same school officials. At the Board meeting, Peña had vigorously disputed Resendez's assertion that he and his wife had refused to cooperate with school officials. Barber nevertheless accepted his subordinates' statements that the Peñas did not wish to involve themselves or their daughter in the investigation and thus made no attempt to contact them. His belief that a hearing was not warranted, however, apparently did not rest on the credibility of Leticia's complaint or her parents' perceived unwillingness to allow her to testify against Mares. Barber could not specifically recall at trial whether he asked Morales whether she believed the child's allegations and, more importantly, he indicated that even Leticia's testimony alleging conduct that "certainly" constituted sexual abuse would not suffice. According to Barber, there was in his view no "evidence" or "proof" of abuse, not because Leticia refused to come forward, but because "Mr. Mares continued to deny it." In sum, without additional evidence, such as confirmation of additional witnesses, "the testimony of a little girl" was not enough to hold a hearing in the face of a teacher's denials. Barber accordingly recommended that disciplinary action against Mares be limited to a written reprimand directing him to seek counseling and an order transferring him from Ascarate to Glen Cove, another elementary school within YISD.
After Superintendent Hensley concurred in Barber's report and recommendation, it was explained and submitted to the Board of Trustees for its approval. While the record discloses that the Board, after discussion of the matter, ultimately voted in favor of transferring Mares, it is not clear whether its consideration of this issue was confined to a single evening or extended over several meetings during late May and early June.
Mares' first year at Glen Cove Elementary School passed without incident. On March 9, 1987, however, Mares molested Jessica Gonzalez, one of the students in his first grade Spanish class. The record showed that the assault occurred after Jessica asked Mares for permission to get a drink of water. After Jessica left her seat, Mares followed her over to the water fountain and, as she leaned over, placed his hand inside her underwear and touched her vagina. When Jessica reported Mares' actions to her mother that afternoon, Gloria Gonzalez immediately returned to school with her daughter and a family friend to speak to Richard Gore, Glen Cove's Principal.
The Gonzalezes filed this § 1983 suit in U.S. District Court for the Western District of Texas in March 1989, contending that their daughter's injuries were attributable to the school district's policies and customs regarding sexual abuse.
The district court submitted both "policy" and "custom" as two distinct theories of liability, with separate interrogatories under Rule 49 of the Federal Rules of Civil Procedure. The jury declined to find that YISD had "maintained a persistent, widespread custom or practice that authorized, tolerated, or condoned sexual abuse of students by teachers." The jury did find, however, that the school district had a "formal policy, statement, ordinance, regulation or decision that authorized, tolerated, or condoned sexual abuse of students by teachers." The jury also expressly found that this policy proximately caused Jessica Gonzalez' injuries and awarded damages of $500,000. The district court denied YISD's motion for judgment notwithstanding the verdict and entered judgment in favor of the Gonzalezes. The school district then filed a timely notice of appeal.
The school district makes three main points on appeal. It first contends that the jury's finding that a district "policy" caused the injury to Jessica Gonzalez is not supported by the evidence. YISD also maintains that the trial court did not charge the jury that only those actions by the Board of Trustees could sum to district policy. Finally, the school district asserts that the trial court erred in failing to charge the jury that YISD could be held liable for Jessica Gonzalez' injuries only if the decision by the Board of Trustees manifested deliberate indifference to the constitutional rights of schoolchildren.
The Gonzalezes argue that these issues are not properly before this court because the school district failed to preserve them for appeal. Specifically, they assert that YISD's failure to move for a directed verdict precludes a review of the sufficiency of the evidence. Second, there was no objection to any failure of the charge to identify the Board of Trustees as the sole policymaking entity. Finally, the Gonzalezes maintain that YISD waived the deliberate indifference instruction as well.
The school district moved for directed verdict both at the close of the Gonzalezes'
At the close of all the evidence, the school district renewed its motion for directed verdict. It repeated the two grounds offered in the first motion, but then added "that it has not been shown that there was any policymaker involved with any of the action that could have conceivably caused any injury. No one who made any decisions under the policy was in fact a policymaker."
The Gonzalezes maintain that the school district's failure to include this "separate" issue — which they understand to be that their daughter's injuries were not caused by any actions taken by policymakers — prohibits it from raising it on appeal. According to the Gonzalezes, we may not review the evidence supporting a particular element "unless a motion for directed verdict was made at both the close of a plaintiffs' case and the close of all the evidence by the party seeking review." Since Rule 50 requires movants to "state the specific grounds therefor," the argument continues, a claim that is raised for the first time at the close of the evidence is not preserved for appeal. The Gonzalezes thus conclude that YISD has waived its challenge to the evidence supporting the jury's finding that Jessica's injuries were caused by the decisions made by the district's policymakers.
This argument is meritless. In the first instance, we read the purportedly "new" ground that "there was [no] policymaker involved with any of the actions that could have conceivably caused any injury" advanced at the close of the evidence to be fairly included in the first motion, which requested a directed verdict "on the grounds that the plaintiff has not proved that the investigation policy caused Andres Mares to commit the abuse against Jessica Gonzalez in 1987." As the school district suggests, and our discussion below discloses, the policymaker's actions and YISD "policies" are inseparable, for the district "policy" at issue in this case consists of the decisions made by the policymakers.
Moreover, appellate review would not be barred even if we were to view the motion offered at the close of all the evidence as raising a new issue. The Gonzalezes maintain that only those grounds contained in directed verdict motions filed at the close of the plaintiff's case are preserved for appeal. This interpretation of Rule 50 is flatly inconsistent with our precedents, which require only a motion at the close of all the evidence: "According to Rule 50(b) of the Federal Rules of Procedure, a party may only base a motion for judgment notwithstanding the verdict on a ground that he included in a prior motion for directed verdict at the close of all the evidence." Hinojosa v. City of Terrell, 834 F.2d 1223, 1227-28 (5th Cir.1988) (citing Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397, 1401 (5th Cir.1986); Sulmeyer v. Coca Cola Co., 515 F.2d 835 (5th Cir.1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976)); Bohrer v. Hanes Corp., 715 F.2d 213, 217 (5th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); Merwine v. Board of Trustees, 754 F.2d 631, 634 (5th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 76, 88 L.Ed.2d 62 (1985). See also Redd v. City of Phenix, 934 F.2d 1211, 1214 (11th Cir.1991); Riverview Investments, Inc. v. Ottawa Community Imp. Corp., 899 F.2d 474,
The school district also contends that the district court erred in failing to identify, prior to submitting the case to the jury, the actors responsible for determining policy. Specifically, it maintains that the trial court should have instructed the jury that only the actions of the Board of Trustees, to the exclusion of administrators and teachers, could constitute "official policy" for which YISD was responsible.
The school district properly stresses that it is for the court, not the jury, to determine which officials have final policymaking authority. After some initial disagreement, compare St. Louis v. Praprotnik, 485 U.S. 112, 122-26, 108 S.Ct. 915, 924-25, 99 L.Ed.2d 107 (1988) (plurality opinion) (this question is a matter of interpretation of state law, and therefore one for the court) with id. at 142-43, 108 S.Ct. at 934 (Brennan, J., concurring in judgment) (jury "must determine where such policymaking authority actually resides"), the Supreme Court settled this issue in Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989):
Id. at 737, 109 S.Ct. at 2723 (emphasis in original). See also Crowder v. Sinyard, 884 F.2d 804, 830 (5th Cir.1989), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990); Worsham v. City of Pasadena, 881 F.2d 1336, 1344 (5th Cir.1989). Texas law provides that the Board of Trustees is responsible for determining school policy. Tex. Educ.Code Ann. § 23.26(b). See Kinsey v. Salado Indep. School Dist., 950 F.2d 988, 995 (5th Cir.) (en banc), cert. denied, ___ U.S. ___, 112 S.Ct. 2275, 119 L.Ed.2d 201 (1992); Daniels v. Morris, 746 F.2d 271, 277 (5th Cir.1984).
Our review of the jury instructions discloses that the trial court did not, contrary to the dictates of Jett and Praprotnik, indicate that only the Board of Trustees had the
YISD finally contends that the district court committed reversible error in failing to charge the jury that the school district could be found liable under § 1983 only if its policy reflected a deliberate indifference to the constitutional rights of schoolchildren. We find that the school district adequately preserved this issue under Rules 49 and 51 by making several objections to the trial court's omission of the proposed instruction and interrogatory. The propriety of this omission thus depends, as an initial matter, on whether school district liability under § 1983 must be predicated on a showing of deliberate indifference. It is to this question that we now turn.
The Gonzalezes prevailed at trial on the theory that the YISD Board of Trustees' decision to transfer Mares to their daughter's school was a proximate cause of Jessica's injury. The school district contends that such an allegation, even if accepted as true, cannot support a finding of liability under § 1983. YISD asserts that an ad hoc, isolated decision, even when made by policymakers, does not constitute the sort of "policy" upon which municipal liability may be predicated under Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), especially where, as here, this act is contrary to the district's own formal policies for handling the matter in question. Second, and more importantly, YISD maintains that even if a single, aberrant decision may establish an actionable "policy," liability cannot attach unless the decisionmaker was at a minimum deliberately indifferent to its likely consequences. Because the district court's instructions did not require the jury to find that the Board of Trustees acted with the requisite level of fault, YISD asserts that its verdict in favor of the Gonzalezes cannot stand.
We find the school district's first argument unpersuasive. Under Monell, local governments are responsible for constitutional wrongs visited upon citizens pursuant to official "policy." "Policy" consists of a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers," Monell, 436 U.S. at 690, 98 S.Ct. at 2036, and encompasses the actions of
The Board of Trustees' conscious decision to transfer Mares in response the Peñas' allegations rather than remove him from the classroom or report the incident to the Department of Human Resources — the response its past practice might have portended and its own sexual abuse policy would seem to have required — plainly constitutes a "policy" attributable to the school district. Courts often face difficult questions regarding the location, see, e.g., Praprotnik, or scope, see, e.g., Auriemma v. Rice, 957 F.2d 397, 399-401 (7th Cir.1992), of final policymaking authority, but "[n]o one has ever doubted ... that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body." Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298. The Board's decision to transfer Mares represents a final action by the entity charged with making and executing policy within the school district; it is indistinguishable in this respect from the actions taken by the city councils in Newport and Owen and the county prosecutor in Pembaur.
The "policy" in this case differs from those at issue in Monell and other prior cases in another, significant way, however. In those cases, the policymaker's decision directly ordered the action found to be unconstitutional. Monell, for example, involved a written rule which the Court interpreted to require pregnant employees to take unpaid leaves of absence before they were medically necessary; Newport, a decision by the city council to cancel a concert on the basis of content; Pembaur, a decision by the county prosecutor forcibly to enter an office. The "policy" in each instance not only led to a constitutional violation, but compelled it. In this case, however, the Gonzalezes do not maintain that the Board ordered Mares to assault their daughter or that it intended this result. The Board's "policy" may have produced or caused the constitutional violation but, unlike the policymaker's actions in Monell and Pembaur, it is not itself unconstitutional. Both parties recognize this factual dissimilarity, but differ sharply as to its legal relevance.
The Gonzalezes argue, as Justice Brennan did in City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), that any "distinction between policies that are themselves unconstitutional and those that cause constitutional violations" is "metaphysical": "If a municipality takes actions — whether they be of the type alleged in Monell, Owen, or this case — that cause the
The school district maintains that the concept underlying Monell is not "responsibility," but "fault," for, contrary to the Gonzalezes' reading, Monell "provides a fault-based analysis for imposing municipal liability." Tuttle, 471 U.S. at 817-18, 105 S.Ct. at 2433 (plurality). YISD agrees that Monell's emphasis on "policy" serves to foreclose liability on the impermissible basis of respondeat superior, but urges that this "requirement was intended to prevent the imposition of municipal liability," not in cases in which policymakers were not responsible, but "under circumstances where no wrong could be ascribed to municipal decisionmakers." Id. 471 U.S. at 821-22, 105 S.Ct. at 2435 (emphasis added). Put another way, § 1983 permits recovery only "when it can be fairly said that the city itself is the wrongdoer." Collins v. City of Harker Heights, ___ U.S. ___, ___, 112 S.Ct. 1061, 1067, 117 L.Ed.2d 261 (1992).
According to the school district, "establish[ing] the existence of the policy," at least as the Gonzalezes and Justice Brennan understand that term, is necessary but not sufficient under § 1983; plaintiffs must also introduce "evidence showing that the city was at fault for establishing the policy." City of Springfield v. Kibbe, 480 U.S. 257, 270, 107 S.Ct. 1114, 1121, 94 L.Ed.2d 293 (1987) (O'Connor, J., dissenting). Predicating municipal liability solely on the presence of "a deliberate choice to follow a course of action" on the part of policymakers would render Monell a "dead letter," since the sheer number of such decisions required by governance ensures that "if one retreats far enough from a constitutional violation some municipal `policy' can be identified behind almost any such harm inflicted by a municipal official." Tuttle, 471 U.S. at 823-24, 105 S.Ct. at 2436. Where the challenged policy is unconstitutional on its face, as those in Monell, Owen, Newport, and Pembaur were, no additional "evidence [is] needed other than a statement of the policy by the [policymaker], and its exercise," id., for it is plain that the constitutional violation flows directly from the policymaker's deliberate choice. On the other hand, where, as here, a policy in some sense causes, but does not compel, a constitutional violation, plaintiffs must establish that the particular harm-producing deficiency "resulted from conscious choice," that is, they must supply "proof that the policymakers deliberately chose [measures] which would prove inadequate." Id. Unless the policy itself is unconstitutional, YISD concludes, § 1983 provides a remedy only if it was enacted with deliberate indifference to constitutional rights.
The school district locates this bright-line rule in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In Canton, a unanimous Court held that a facially valid municipal policy may give rise to § 1983 liability if, as a result of inadequate training, it is unconstitutionally applied by city employees. Id. 489 U.S. at 387, 109 S.Ct. at 1204. In keeping with Monell's proscription of respondeat superior as a theory of recovery, the Court limited liability to those cases where the city's failure to train amounts to deliberate indifference to the constitutional
The Gonzalezes do not, at least at the outset, challenge Canton's "deliberate indifference" requirement, but question the rule's application to claims, such as theirs, where a "policy" has been established. Such claims rest on the actions of the policymaker, and therefore differ materially from "failure to train" claims, which, like those alleging an unconstitutional "custom," seek to hold the city liable for the policymaker's omissions. In custom cases, as in "failure to train" cases, plaintiffs contend that improper conduct among employees should be attributed to the city "even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Noting that the Court in Canton appeared to equate these two types of claims by suggesting that Harris' "custom" claim was "little more than a restatement of her `failure-to-train as policy' claim," 489 U.S. at 386 n. 5, 109 S.Ct. at 1203 n. 5, the Gonzalezes point out that the inquiry prescribed by the Court in Canton closely resembles the standard applied in custom cases. Compare 489 U.S. at 390 & n. 10, 109 S.Ct. at 1205 & n. 10 ("need for further training [is] plainly obvious to the city policy makers" but they fail to act) and id. 489 U.S. at 394-96, 109 S.Ct. at 1208 (O'Connor. J., concurring) (policymakers fail to act despite having "actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens") with Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.) (municipalities may be held liable on the basis of custom if policymakers had "actual or constructive knowledge of [city employees' misconduct] yet did nothing to end the practice"), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989). Through the use of a familiar tort law construct, plaintiffs in each case ask courts to infer act from omission, assent from silence, by showing that policymakers were aware of abusive or deficient practices and yet did nothing to curb or cure them. The "deliberate indifferent" requirement permits courts to separate omissions that "amount to an intentional choice" from those that are merely "unintentionally negligent oversight[s]." Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992).
Proof of deliberate indifference is unnecessary here, the Gonzalezes assert, because we need not rely on inferences to establish the existence of an intentional choice for which the school district should be held responsible. The YISD Board of Trustees did make a "deliberate choice ... from among various alternatives." Pembaur, 475 U.S. at 483-84, 106 S.Ct. at 1300. It could have suspended Mares, ordered further investigation, scheduled a hearing, issued a more severe reprimand, or even provided for closer monitoring of his classroom. Instead, the Board chose to transfer him to a different elementary school within the district. To require an additional showing of deliberate indifference would collapse the dichotomy between act and omission underlying "policy" and "custom" as distinct theories of recovery and impermissibly deprive the school board's decision of legal significance.
The Gonzalezes' contention that the relevant distinction under § 1983 lies between
The circuits have uniformly interpreted Canton's "deliberate indifference" requirement, announced in the context of a "failure to train" claim, to apply to all cases involving facially constitutional policies. As the Ninth Circuit, for example, recently held:
Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir.1992) (quoting Canton, 489 U.S. at 389-90, 109 S.Ct. at 1205) (citations omitted). See Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992) ("[the issue is] whether Henderson County acted with deliberate indifference in adopting policies regarding care of inmates known to be suicidal"); Benavides v. County of Wilson, 955 F.2d 968, 974 (5th Cir.) (the evidence "does not indicate that [the sheriff] was deliberately indifferent in hiring or retaining ... jailers and deputies"), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990); Crowder v. Sinyard, 884 F.2d 804, 830-31 (5th Cir.1989) ("There is nothing in the record before us that indicates that any policies of the City of Texarkana reflected deliberate indifference to any constitutional concerns or were anything other than generic policies favoring effective law enforcement"), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990); Wassum v. City of Bellaire, 861 F.2d 453, 456 (5th Cir.1988) ("a plaintiff must demonstrate that those hiring practices that led it to employ the police officer constituted gross negligence amounting to conscious indifference to the welfare of the public"); Graham v. Sauk Prairie Police Commission, 915 F.2d 1085, 1100-01 (7th Cir.1990) ("Clearly these procedures do not directly violate any constitutional guarantees. Like the plaintiff in Canton, Graham bases her § 1983 municipal liability claim solely on the defendants' allegedly inadequate acts as `policy.' Accordingly, the standard of fault and the principles which applied to the claim of inadequate training in Canton must guide our determination of municipal liability in this case"); Ware v. Unified School Dist., 902 F.2d 815, 819 (10th Cir.1990) ("we remain convinced that a causal connection between the unconstitutional act and the authorized decisionmakers may be established when the governing body has
The Gonzalezes' "policy" claim is indistinguishable from those advanced in these previous cases. They do not argue that the Board's decision itself violated the Constitution by ordering or compelling Mares to assault their daughter. Rather, they maintain, as Fernando Peña testified, that its choice to transfer Mares in response to allegations of sexual abuse was "inadequate." As such, their claim is controlled by Canton and our many precedents that have required a showing of deliberate indifference before holding a city liable for a policymaker's mistaken personnel decisions. See, e.g., Benavides, 955 F.2d at 972-75.
The Gonzalezes argue that this broad reading of Canton brings the decision into conflict with several of the Court's prior holdings and therefore cannot be correct. Specifically, they contend that conditioning recovery upon proof that policymakers acted with deliberate indifference to constitutional rights improperly imports a state of mind requirement into § 1983, see Daniels v. Williams, 474 U.S. 327, 329-30, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986); Parratt v. Taylor, 451 U.S. 527, 534, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), and has the effect of extending good-faith immunity to municipalities, a step expressly rejected by the Court in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). This argument gives us pause, but does not provide grounds for this court to adopt the Gonzalezes' approach.
The Supreme Court has consistently held that § 1983 "contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right." Daniels, 474 U.S. at 329-30, 106 S.Ct. at 664; Parratt, 451 U.S. at 534, 101 S.Ct. at 1912 ("Nothing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights.... Section 1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never been found by this Court to contain a state-of-mind requirement"). In Canton, however, the Court held that plaintiffs bringing "failure to train" claims must prove that the city's policymakers' failure to adopt additional precautions reflected deliberate indifference to the rights of citizens, a standard of fault which, the Court made plain, remained separate from, and independent of, the state-of-mind necessary to establish a constitutional violation. Canton, 489 U.S. at 388 n. 8, 109 S.Ct. at 1204 n. 8 ("The `deliberate indifference' standard we adopt for § 1983 `failure to train' claims does not turn upon the degree of fault (if any) that a plaintiff must show to make out an underlying claim of a constitutional violation"); accord Collins v. City of Harker Heights, ___ U.S. ___, ___ n. 7, 112 S.Ct. 1061, 1068 n. 7, 117 L.Ed.2d 261. The Gonzalezes contend that the holdings in Daniels and Parratt may be preserved only if Canton's rationale does not reach inadequate, but constitutional policies and decisions, and is instead confined to cases in which policymakers have truly failed to act. Otherwise, they conclude, the Court's decision represents an adoption, sub silentio, of a view previously urged only in dissent. See Procunier v. Navarette, 434 U.S. 555, 568, 98 S.Ct. 855, 863, 55 L.Ed.2d 24 (1978)
As stated above, see supra at 29-32, we do not believe that Canton is capable of bearing this reading. In order for municipal liability to attach, plaintiffs must offer evidence of not simply a decision, but a "decision by the city itself to violate the Constitution." Id. 489 U.S. at 494-96, 109 S.Ct. at 1208 (O'Connor, J., concurring). Inadequate, but constitutional policies and decisions rise to the same, actionable plane as the unconstitutional policies considered in Monell, Owen, Newport, and Pembaur only upon a showing that they were enacted or made with deliberate indifference to their possible unconstitutional consequences. Since "[f]acially unconstitutional policies that mandate unconstitutional conduct evince an intent that such violations occur," Kritchevsky, Making Sense of State of Mind: Determining Responsibility in Section 1983 Municipality Liability Litigation, 60 Geo.Wash.L.Rev. 417, 473 n. 292 (1992), Monell's policy requirement may be restated wholly in terms of fault: "A municipality only can be held liable for a constitutional violation caused by a municipal policy that manifests at least deliberate indifference to constitutional rights." Id. at 473. See, e.g., Medina v. Denver, 960 F.2d 1493, 1500 (10th Cir.1992); ("negligence and gross negligence do not give rise to section 1983 liability"); Stokes v. Bullins, 844 F.2d 269, 273 (5th Cir.1988) ("One may read the tea leaves and conclude that mere negligence will not ultimately be a sufficient basis for § 1983 municipal liability"); cf. Buffington v. Baltimore County, 913 F.2d 113, 122 n. 2 (4th Cir.1990) (The standard of fault announced in Canton "does not of course displace the firmly established rule that § 1983 contains no independent state-of-mind requirement governing the liability of the immediate wrongdoer"), cert. denied, ___ U.S. ___, 111 S.Ct. 1106, 113 L.Ed.2d 216 (1991). See also Bator, et al., Hart & Wechsler's The Federal Courts and the Federal System 1256-57 (3d ed. 1988); Brown, Correlating Municipal Liability and Official Liability under Section 1983, 1989 U.Ill.L.Rev. 625, 654; Mead, 42 U.S.C. § 1983 Liability: The Monell Sketch Becomes a Distorted Picture, 65 N.C.L.Rev. 517, 545 (1987); Nahmod, Section 1983 Discourse: The Move from Constitution to Tort, 77 Geo.L.J. 1719, 1729 n. 71 (1989). Daniels and Parratt notwithstanding, what the Gonzalezes would describe as Canton's deliberate indifference "exception" has apparently become the rule, at least for these commentators and courts.
The Gonzalezes maintain that this "rule," under which municipalities may be held liable only if their policies reflect a deliberate indifference to constitutional rights, also contravenes the Court's decision in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). In Owen, the Court found that the history and policy considerations underlying § 1983 did not support an extension of the good-faith immunity enjoyed by public officials in their individual capacities to municipalities. See id. at 657, 100 S.Ct. at 1418-19. While qualified immunity shields a city's officers from damages caused by their transgression of rights not "clearly established" at the time of their conduct, see, e.g., Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the city itself is "strictly liable" for all constitutional violations committed pursuant to its policies. See, e.g., Pembaur v. City of Cincinatti, 475 U.S. 469, 477 n. 5, 484-88, 106 S.Ct. 1292, 1297 n. 5, 1301-02, 89 L.Ed.2d 452 (1986) (applying retroactively Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)). Because policymakers cannot be said to be deliberately indifferent to constitutional rights that were not clearly established at the time they acted, the Gonzalezes assert that applying Canton's heightened standard of fault in "policy" cases affords municipalities the same immunity withheld in Owen.
It is not clear that an embrace of Canton necessarily implies a rejection of Owen. There are some indications that Canton requires a showing of deliberate indifference to
Because the facts of this case do not directly implicate these questions, however, we need not resolve them. The arguments advanced by the Gonzalezes' most able counsel have taken us far afield and led us to treat the ultimate contours of a jurisprudence that remains unsettled. Needless to say, it is for the Court itself to address any perceived tension between Canton and its earlier decisions, see, e.g., Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), and nothing we have said should be taken as an indication that the principles established in these prior cases retain anything less than their full force. We do hold, however, that YISD may be held liable in this case only if the Board of Trustees' decision to transfer Mares to Jessica's elementary school manifested a deliberate indifference to the welfare of school children.
The trial court did not instruct the jury in accordance with this standard. Rather than requiring the Gonzalezes to prove that the Board of Trustees' decision to keep Mares in the classroom manifested a deliberate indifference to students' constitutional right to bodily integrity, the district court advised the jury that YISD could be held liable if its policies "authorized, tolerated, or condoned sexual abuse of students by teachers." Because these terms if anything provide for a higher standard of fault, we do not regard the trial court's omission of the deliberate indifference instruction as reversible error. We hold, however, that the trial evidence is not sufficient to sustain the jury's verdict under either standard and therefore reverse and render judgment in favor of the school district.
The district court submitted the following interrogatories to the jury:
The jury answered both the second and third issue in the affirmative and thus returned a verdict in favor of the Gonzalezes.
YISD contends that the district court committed reversible error in refusing to advise the jury that liability could attach only if the Board's decision to keep Mares in the classroom reflected deliberate indifference to the rights of school children. We do not agree. In light of our discussion in Part III, the district court clearly should have included a deliberate indifference instruction.
Moreover, the school district itself appeared to equate the contended-for deliberate indifference instruction with the district court's formulation in requesting that the jury be asked to determine "whether there was conscious indifference to the rights of students to be free from sexual abuse that amounted to condonation, toleration, or encouragement of sexual abuse by teachers." (emphasis added). Because both of these instructions require the jury to find that the policymaker acted with knowledge of the likely consequences, we do not believe that the district court's omission would warrant a new trial. Proper instruction should of course refer to "deliberate indifference," but we are not prepared to hold on the facts of this case that Judge Bunton's charge constituted reversible error.
The issue of jury instructions, however, is largely irrelevant in light of our review of the evidence, for we do not believe that the record supports a finding that the Board acted with deliberate indifference in failing to relieve Mares of his teaching duties. It is of course true that Mares would not have had the opportunity to assault Jessica had the Board removed him from the classroom after it learned of Leticia Peña's allegation in 1985. We also agree, and YISD appears to concede, that the Board's choice to transfer Mares rather than impose a more severe sanction was not only negligent but also inconsistent with the district's handling of other cases of suspected sexual abuse. But these facts, by themselves, are not sufficient to establish that the Board was deliberately indifferent to the welfare of students in making its decision.
The Board did not ignore or turn a blind eye to the Peñas' complaint when it came to its attention. Instead, it immediately asked the district's superintendent and his deputy personally to investigate the incident and prepare a recommendation. The report Board members received found that the evidence was not strong enough to justify termination proceedings, but recommended that Mares be issued an official reprimand and a transfer out of Ascarate Elementary School. The Board's adoption of these precautions reflect not indifference or apathy, but concern. Rhyne, 973 F.2d at 393.
Nor can we understand how the inadequacy of these disciplinary measures could have been "obvious," see Canton, 489 U.S. at 388-90, 109 S.Ct. at 1205, to the Board at the time of its decision. Board members were aware that two accusations, separated by four years, had been lodged against Mares. These allegations, while certainly a cause for concern, did not compare in gravity to Mares' conduct in 1987, and thus provided no grounds for suspecting that he might be capable of such a vile act. Moreover, the deputy superintendent, on whose factual findings the Board was surely entitled to rely, stated that he had virtually no proof that Mares touched Leticia Peña in the manner she initially reported. To hold that these facts support a finding that the Board was "deliberately indifferent" would drain the term of its meaning. While sympathy for Jessica and her parents and anger toward those whose acts contributed to this tragic occurrence are understandable, our precedents do not permit us to hold the school district responsible for this harm.
For the foregoing reasons, we REVERSE and RENDER judgment in favor of the Ysleta Independent School District.
The Gonzalezes have cited only one decision that arguably provides support for its position that Rule 50 requires a motion for directed verdict at the close of the plaintiff's case as well as at the close of all of the evidence. In In re Owners of "Harvey Oil Center", 788 F.2d 275 (5th Cir.1986), this court held, without explanation or citation, that "[b]ecause [defendant] failed to move for a directed verdict at the close of the plaintiffs' case, its motion for judgment notwithstanding the verdict on this point had no proper predicate." Id. at 278. This statement, if given the broad application proposed by the Gonzalezes, is inconsistent with what came before, see, e.g., Merwine, 754 F.2d at 634, and what followed. See, e.g., Hinojosa, 834 F.2d at 1227-28. For this reason, we believe that this apparent holding of Harvey Oil Center is best confined to the special circumstances — collateral estoppel in bankruptcy — present in that case.
Chief Judge Bunton as well as YISD's counsel apparently shared this understanding of the Gonzalezes' policy claim at trial. The following exchange took place during the hearing on the parties' proposed jury instructions: