___________

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. *
*The Honorable Daniel M. Friedman, Senior United States

Circuit Judge for the Federal Circuit, sitting by

designation.

 Pursuant to the court's own motion, we have replaced with

1

their initials the names of the minors and their parents involved

in the facts of this case.

-2-

___________

 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. , former elementary school students in HSD, and their parents

1

(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
 Plaintiffs also filed federal and state claims against Evans, 2

who suffered a default judgment and does not appeal. 

-3-

IX claim against HSD. Brame and HSD filed motions for summary judgment. 2

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
-4-

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
-5-

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. 
 We are aware that in Larson v. Miller, No. 94-2691, slip op. 3

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-

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
 The Supreme Court has recently made clear that "appellate

4

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-

the litigation[,] . . . [t]he Court of Appeals . . . may thereupon, in its

discretion, permit an appeal to be taken from such order." We have

4

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
-8-

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'
-9-

"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
 Were we to address the merits of the section 1983 claim, we 5

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-

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.