1 United States Court of Appeals,

Fifth Circuit.

No. 93-2043.

Lee Douglas HAGAN, et al., Plaintiffs-Appellees,

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants,

Eddie Orum, III, Defendant-Appellant.

April 27, 1995.

Appeal from the United States District Court for the Southern

District of Texas.

Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs-Appellees in this case are three former students of

Wheatley High School (WHS) in Houston, Texas, and their mothers.

These students allege that the y were sexually molested by their

former high school coach, Tommy Reaux. The students and their

mothers filed suit agai nst several defendants, including the

principal of WHS, Eddie Orum, III, for failing to prevent Reaux's

abuse. Orum now appeals the district court's denial of his motion

for summary judgment based on qualified immunity. We reverse.

I.

In reviewing a denial of summary judgment we must consider the

facts in the light most favorable to the non-mo vants, the

Plaintiff-Appellees in this case (collectively, the "students").

Doe v. Taylor Independent School Distri ct, 15 F.3d 443, 446 n. 1

(5th Cir.), cert. denied,

--- U.S. ----, 115 S.Ct. 70, 130 L.Ed.2d

25 (1994).2

On September 12, 1989, Appellee Roland Major informed several

WHS teachers that Reaux had pinched and patted him on the buttocks.

One of these teachers sent Major to Appellant Orum, who interviewed

Major and had him make a written statement. Orum then met with

Reaux, who admitted that he had patted Major on the behind. Reaux

told Orum that he had been trying to persuade Major to rejoin the

football team and that the pat had simply been a "coaches'

gesture." That same day, Orum met with Major and Reaux together.

At this meeting, Orum told Major that because there were no

witnesses to the incident, nothing further could be done.

Orum did not personally contact Major's mother to tell her of

the incident. Later that afternoon, Reaux approached Major and

asked if he could give Major a ride home after school so that Reaux

could talk to Major's mother. Accompanied by another teacher,

Reaux and Major went to Major's home. Reaux told Major's mother

that he had patted he r son on the buttocks and that Reaux, Major

and Orum had already met and discussed it. At some later time,

Orum warned Reaux that he sho uld be careful in his gestures with

students. Aside from this warning Orum did nothing further about

Major's complaint.

On October 25, 1989, Ap pellee Cleveland McCord reported to

several teachers that he had been having sexual relations with

Reaux. One of these teachers took him to speak to Orum. Orum met

separately with McCord and with Reaux, then met with them together.

In Reaux's presence, Orum had McCord make a written statement.

Orum also separately questioned Reaux, who denied McCord's1 In their brief, the students "question the authenticity of

these letters [to HISD] and their self serving purpose of

attempting to exonerate [Orum]." However, Orum has properly

authenticated these documents. In the face of Orum's competent

summary judgment evidence, the students' unsworn skepticism is

insufficient to raise a genuine issue of material fact as to

whether the letters are authentic. Johnston v. Houston, 14 F.3d

1056, 1060 (5th Cir.1994).

3 allegations. Later that day, Orum tried to telephone McCord's

mother, but could not reach her because the telephone number was

either disconnected or incorrect. Orum contacted an official with

the Houston Independent School District (HISD) and relayed the

information McCord had given him. The HISD instructed Orum to get

statements from McCord and Reaux and to prepare a written report.

The HISD also told Orum that William Morgan, the HISD District IX

Superintendent, would begin an investigation. Orum sent a written

report to the HISD that day. 1

Shortly afterward, Reaux approached McCord and offered him

$50.00 to say that nothing had happened. McCord took the money and

on October 26 made a new written statement withdraw ing his

allegations. When Orum questioned McCord about the reason for his

change of heart, McCord told Orum that he just wanted to drop it.

Orum again contacted the HISD and informed them of McCord's new

statement. Orum told the HISD that he still considered the

situation serious and stated that he had warned Reaux that, in

spite of McCord's retraction, Orum would recommend that Reaux be

fired if there was reason to believe the original charges. At that

point, Orum intended to discontinue his active investigation but to

monitor the situation by "keep[ing] [his] eyes open."4

Several days later, McCord told Orum that he wanted to revive

his complaint. On November 1, Orum went to McCord's home to speak

to his mother. Orum informed McCord's mother of McCord's

allegations and told her that he had spoken with both McCord and

Reaux. Orum also told McCord's mother that Reaux would no longer

be allowed to be alone with students. This was apparently the

first that McCord 's mother had heard of this matter and she told

Orum to hold off his investigation because she wanted to speak to

her son first. The next morning, McCord's mother visited Orum's

office, informed Orum that the relationship between Reaux and her

son had been consensual and asked Orum to stop investigating. On

that day, Orum wrote to Morgan and informed him that his

investigation had been inconclusive and that he planned to end his

inquiry unless he was instructed otherwise.

Some time in 1990, Orum was approached by Daphne Chappell, the

band teacher at WHS, who suggested that he speak with a student

named Earl Armstrong to see if Armstrong had been having problems

with Reaux. Chappell told Orum that Armstrong's youngest brother

had said that Reaux and Armstrong were having sexual relations.

Orum spoke to Armstrong and to R eaux, both of whom denied the

allegations. Orum also spoke to Armstrong's mother, who told him

only that she was concerned that the WHS football and band

departments were too aggressively vying for Armstrong's exclusive

participation. At this time, Orum believed that some of the past

allegations against Reaux might have been true, but because of the

outcome of his interviews with Armstrong, Armstrong's mother and5

Reaux, Orum concluded that he should take no further action.

Although Orum was aware that a number of alumni and faculty

w ere discussing Reaux and insisting that he be fired, he was not

notified of any new concrete complaint about Reaux until 1991. On

April 23, 1991, appellant Lee Douglas Hagan reported to the campus

police, several teachers and Orum that Reaux had rubbed his inner

thigh, grabbed his penis through his pants and made a number of

suggestive comments while Hagan was in the WHS coaches' office.

After the District Attorney's Office brought formal charges against

him, Reaux was removed from his position at WHS.

In their suit in federal court, the stud ents brought claims

under 42 U.S.C. § 1983 alleging violations of their civil rights,

a clai m under 42 U.S.C. § 1985 alleging a conspiracy to violate

their civil rights, and a claim for violations of the Education for

the Handicapped Act (EHA). The district court granted summary

judgment to Orum on the EHA claim but not on the §§ 1983 and 1985

claims.

II.

We review the district court's denial of summary judgment de

novo. K ing v . Dogan, 31 F.3d 344, 345 (5th Cir 1994). We will

reverse the denial if "there is no genuine issue of material fact

and

... the moving party is entitled to judgment as a matter of

law." Fed.R.Civ.P. 56.

A. 42 U.S.C. § 1983

This cour t recently explained that "a supervisory school

o fficial can be held personally liable for a subordinate's2 For this reason, we express no opinion as to whether the

rights of schoolchildren described in Doe are implicated in the

case of high school students who are no longer minors. In

addition, we take no position as to whether a student who is

above the legal age of consent can allege a constitutional

violation based on wholly consensual sexual relations with a

school teacher. For the purpose of this opinion, we will simply

assume the requisite constitutional violations.

6 violation of an e lementary or secondary school student's

constitutional right to bodily integrity in physical sexual abuse

cases if the plaintiff establishes that:

1) the defendant learned of facts or a pattern of inappropriate

sexual behavior by a subordinate pointing plainly toward the

conclus i on that the subordinate was sexually abusing the

student; and

2) the defendant demonstrated d eliberate indifference toward the

constitutional rights of the student by failing to take action

that was obviously necessary to prevent o r stop the abuse;

and

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

Taylor, 15 F.3d at 454.

Orum cont ends that the students have not shown that they

suffered a deprivation of their constitutional right to bod ily

integrity and that the students failed to meet every prong of the

Taylor test. We do not address whether the students have shown

constitutional violations because even if they ha ve, we conclude

that under the standard established in Taylor, Orum is entitled to

qualified immunity. 2

1. Major

To avoid Orum's qualified immunity defense, Major must show

that: (1) Orum had learned of facts that pointed plainly toward a

conclusion that Reaux had been molesting students; and (2) in the7

face of that knowledge, Orum failed to take clearly necessary steps

to prevent Reaux's abuse of M ajor. This is a difficult task for

Major, who was the first to report to Orum any sexual misconduct by

Reaux. In a manner sufficient to survive summary judgment, Major

has not s hown how Orum could have foreseen any problem before he

made his own complaint. At oral argument, Major's attorney

suggested that Orum should have been tipped off by rumors and

complaints from alumni and faculty. This argument is belied by the

summary judgment evidence. At most the evidence shows that Orum

heard rumors and complaints in 1990, the year after Major's

incident. Major's sole injury occurred before he spoke to Orum, so

Orum's decision not to take more action on Major's complaint could

not have caused Major further harm. Because Orum had no

information that Reaux posed a threat to students, he could not

have been deliberately indifferent.

2. McCord

McCord attempts to satisfy the first prong of the Taylor

standard by arguing that Major's complaint put Orum on notice that

Reaux was sexually molesting students. McCord contends that after

Major's complaint, Orum failed to tak e steps that were obviously

necessary to prevent Reaux's later abuse of McCord , manifesting

deliberate indifference.

We agree that Major's complaint brought new data about Reaux

to Orum's attention, but we do not agree that Major's allegations

put Orum on the alert for the type of abuse of which McCord

complains. In addition, given the nature of Major's complaint,8

Orum's respon se was hardly indifferent. Orum interviewed both

Major and Reaux and warned Re aux to monitor the gestures he made

with students. Orum also knew that Reaux had gone to Major's home

to discuss the incident with Major's mother and had heard nothing

further from either Major or his mother. Orum's decision that no

further action on Major's complaint was warranted was not a failure

to take steps that were obviously necessary to avert harm to

potential future victims. McCord also does not suggest that his

sexual relationship with Reaux continued after he went to Orum, so

Orum's action or inaction in response to McCord's complaint cannot

have been the cause of any injury to McCord. And as we discuss

next, Orum's actions a fter McCord's complaint were also not

deliberately indifferent.

3. Hagan

After the complaint by McCord and the rumors about Armstrong,

Orum had undoubtedly learned of facts or a pattern of behavior that

pointed plainly toward the conclusion that Reaux was enga ging in

se xual activity with WHS students. It is also obvious that the

action Orum took in response to this information was ineffective to

prevent Reaux's subsequent mistreatment of Hagan. However, simple

ineffectiv e ness is not enough to overcome qualified immunity.

Taylor, 15 F.3d at 458.

Orum took more than a minimal amount of action in response to

the complaints he received. He interviewed McCord, Armstrong, both

their mothers, Reaux, and other involved faculty members. Orum was

given inconsistent information by McCord, then was told by McCord's9

mother that her son's relationship with Reaux was consens ual and

that Orum should drop his investigation. Nonetheless, Orum warned

R eaux that Orum would recommend Reaux's termination if there was

reason to suspect that he had taken part in even a consensual

sexual relationship with McCord. When Orum questioned Armstrong,

Armstrong denied any sexual relationship with Reaux; Orum spoke to

Armstrong's mother anyway. Orum was not told by Armstrong's mother

that she was suspicious that Armstr ong had an inappropriate

intimate relationship with Reaux but instead was told that she was

concerned that Armstrong was being pressured to join competing WHS

programs. Orum documented his investigations, reported his

findings to his superiors and requested further direction. While

the students point to extra precautions Orum could have taken that

might have pre-empted Reaux from grabbing Hagan, they have not

established that Orum did so little that he was delib erately

indifferent. See Taylor, 15 F.3d at 457-58.

The students place a great deal of emphasis on the undisputed

fact that Orum did not follow some of the procedures established in

the HISD Handbook for Principals, which recommends step s a

principal should take when a student reports a "sexual offense."

However, the students have not persuaded us that all of the

procedures listed in the Handbook were obviously necessary in light

of both the complaints Orum had received an d the result of his

investigations. Thus, Orum's failure to precisely follow the

Handbook does not itself establish that Orum was deliberately

indifferent. After a careful review of the summary judgment3 The students have not asked for additional discovery, much

less indicated why it is needed or how it would stave off summary

judgment. See Krim v. BancTexas Group, Inc., 989 F.2d 1435 (5th

Cir.1993).

10 evidence, we conclude that there is no genuine dispute of material

fact over whether Orum was deliberately indifferent to Reaux's

abuse of these students. As a matter of law, Orum is entitled to

summary judgment on the basis of qualified immunity.

B. 42 U.S.C. § 1985

In their Third Amended Complain t, the students allege that

Orum and others conspired to "conceal from the public instances of

k nown and/or suspected sexual abuse of students by variou s

teachers," thus "depriving the Plaintiffs of their right to equal

p rotection of the laws, or equal privileges and immunities un der

the laws...." In denying Orum's motion for summary judgment on

this claim, the district court found that "there is some evidence

of a cover-up by teachers and administrators" and decided that

"whether this conduct constitutes a conspir acy is best resolved

after discovery and then by a jury." On appeal, the students argue

that the evidence already presented is sufficient to create a

genuine dispute of material fact on this claim. 3

In order to avoid summary judgment on their § 1985 claim, the

students must put forth evidence of " "some racial or otherwise

class-based, invidiously discriminatory animus in the conspirators'

action.' " Garrie v. James L. Gray, Inc., 912 F.2d 808, 813 (5th

Cir.1990), cert. denied, 499 U.S. 907, 111 S.Ct. 1108, 113 L.Ed.2d

218 (1991) (quoting Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct.11

1790, 29 L.Ed.2d 338 (1971)). In their brief, the students point

to a class consisting of an "endangered group" of "all males on the

football teamand other sport teams" under Reaux's coaching and

state that Orum's behavior discri minated against students in

general, with males being at a higher risk.

The students have failed to show, or even allege, that Orum

was motivated by a class-based animus within the meaning of § 1985.

First of all, a group consisting of male athletes, male students or

all students is not the kind of class that § 1985 requires, unless

the students can esta blish that Orum targeted this group

specifically because of some prot ected common attribute, such as

race or, perhaps, gender. B ray v. Alexandria Clinic,

--- U.S.

----

, ----, 113 S.Ct. 753, 759, 122 L.Ed.2d 3 4, 46 (1993). While it

may be conceivable that the students would be able to make such a

showing in a clai m against Reaux, they have not done so against

Orum.

In addition, the students have failed to assert o r offer

summary judgmen t evidence showing that Orum was inspired by a

discriminatory purpose. To violate § 1985, Orum must have had more

than an awareness of the consequences of his actions; he had to

have "selected or affirmed a particular course of action at least

in part "because of,' not merely "in spite of,' its adverse effects

upon an identifia ble group." I d.

--- U.S. at ----, 113 S.Ct. at

760-761, 122 L.Ed.2d at 47-48 (quoting Mass. v. Feeney, 442 U.S.

256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979)). The

students have not shown such a purpose.12

In sum, the students have failed to identify a genuine dispute

over any fact material to their § 1985 conspiracy claim.

Therefore, Orum is entitled to summary judgment on the basis of

qualified immunity on this issue as well.

For the reasons given above, we REVERSE the district court's

denial of Orum's Motion for Summary Judgment and REMAND for entry

of judgment in Orum's favor and further proceedings consistent with

this opinion.