___________ 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

Circu it Judge for the Federal Circuit, sitting b y designation. Pursuant to the court's own motion, we have replaced wit h 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 L OKEN, Circuit Judge, and HENLEY and FRIEDMAN , Senior Circui t * Judges.

___________ HENLEY, Senior Circuit Judge.

Elaine B rame, a school official in the Hume School District (HSD) , appeals the district court's denial of her motion for summary judgmen t 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 parent s 1 (colle ctivelyplaintiffs). Pursuant to 28 U.S.C. § 1292(b), plaintiff s challenge the district court's grant of summary judgment in favor of Brame
on thei r 42 U.S.C. § 1983 claim. Also pursuant to section 1292(b), HS D challenges the distri ct court's denial of its motion for summary judgment
on plaintiffs' sexual harassment claim under Title IX of the Educatio n Amendments of 1972, 20 U.S.C. § 1681 et seq. We affirm the distric t court's denial of Brame's motion for summary judgment on her immunity clai m and dismiss the appeal of the district court's order concerning the sectio n 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 convicte d of sexually assaulting S.B.L. and B.D.C. Therea fter, plaintiffs filed the instant action in fed eral district court, alleging, among other things, a section 1983 violation and a state-law negligenc e claim against Brame, who was the elementary school principal and superint endent of HSD, and a Title

### Plaintiffs also filed federal and state c laims against Evans, 2 

### who suffered a default judgment and does not appeal.
-3- IX claim a gainst HSD. Brame and HSD filed motions for summary judgment. 2 Brame argued she could not be liable under section 1983 for Evans' abuse beca use she did not have notice of a pattern of his unconstitutiona l condu ct and claimed official immunity as to the negligence claim. HS D argued it was not liable under Title IX because it had no actual knowledge of Ev ans' abuse. Plaintiffs opposed the motions and in support relie d primaril yon the depositions of Evans and Bea Salters, a custodia l grandmother of several of Evans' former students . Evans testified that he had "no doubt" that Brame was aware that he tookmale 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 tol d Brame that Evans had sexually abused one of her grandsons when he was on
an uns upervised non-school sponsored overnight trip with Evans and o n another occasion told Brame that Evans had exposed himself to anothe r grand son when he was at Evans' house. Brame disputed the allegations , stating there was a s chool policy against fraternization and that she was
unaware that Evans socialized with students at his house or took them on unautho rized trips. However, Brame admitted that in 1986 Salters ha d complained to her that while one of Salters' gra ndsons was at Evans' house he said "something" to the child that Salters di d 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 sec tion 1983 because she did not have "notice of a pattern o f 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 th at under Missouri law she was not a public official, citin g Jackson v. Roberts , 774 S.W.2d 860, 861 (Mo. Ct. App. 1989).

The court also denied HSD's motion f or summary judgment on the Title IX claim. Title IX, in relevant part, states: "No person . . . shall, on the basis of sex, . . . be subjected to discrimi nation under any education program o r activity receiving Federal financial assistance . . . ." 2 0 U.S.C. § 1681(a). In Franklin v. Gwinett County Pub. Sch. , 503 U.S. 6 0 (1992), the Supreme C ourt held that Title IX afforded a student a damages action against a scho ol 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 Suprem e Court nor this court had set forth the standard of institutional liabilit y under Title IX, and that lower courts were spl it on the applicability of the Title VII standard of holding an employer l iable 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 (8t h Cir. 1994) (quoting D avis v. Tri-State Mack Distrib., Inc. , 981 F.2d 340, 343 (8th Cir. 1992)). Compare Hastings v. Hancock , 842 F. Supp. 1315, 131 8 (D. K an. 1993) (Title VII standard applicable to Title IX hostil e environment claim) wi th Floyd v. Waiters , 831 F. Supp. 867, 876 (M.D. Ga. 1993) (Title VII stan dard inapplicable to Title IX claim which requires a showing of actual knowledge of harassment). The district court wa s persuaded by Floydan d held that HSD could be liable for monetary damages under Title IX only if it had actual knowledge of a hostile

### -5-

environme nt and failed to remedy it. The court denied HSD's motion fo r summary judgment, finding there was a disputed issue of fact concerning th e extent of HSD's "know ledge of Evans's alleged prior sexual misconduct and of his unsupervised 'field trips.'"
Brame filed a notice of appeal of th e district court's denial of her immunity defense on t he pendent negligence claim. Pursuant to plaintiffs and HSD's request under section 1292(b), the dis trict 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 opinio n and that an immediate appeal of the order may materially advance th e ultimate termination of the litigation." An administrative panel of this court granted a joint motion for permission to appeal under sectio n 1292(b).

We first address Brame's argument that the district court erred a s
a matter of law in rejecting her immunity defense on the pendent negligenc e 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 a s defi ning state law unless the state court 'has later given clear an d persuasive indication that its pronouncement wil l be modified, limited, or rest ricted.'" Gilstrap v. Amtrak , 998 F.2d 559, 560 (8th Cir. 1993 ) (quoting Taylor v. Arkansas Louisiana Gas Co. , 7 93 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 an d 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 believe d that Spearmanwas "apposite to principals and su perintendents charged with liabil ityfor their personal fault for nothing appears immunizing thes e officials from actions for their direct tortious acts." 624 S.W.2d at 2 n.2.

### We are awar e 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, Ne b. Rev. Stat. § 13-905 to § 13-926 (Reissue 1991), school officials wer e entitled to immunity on a student's negligence claim. Becaus e Larson concerns Nebraska law, it is not controlling here.
-6- Brame, ho wever, argues that the statements in Lehmen concerning the immunityof principals and superintendents are dicta. Although we ar e 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 su ggest that any subsequent [Missouri] case has questioned thi s definitive statement . . . by the highest court of the State." Donovan v. Farmers Home Admin. , 19 F.3d 1267, 1269 (8th Cir. 1994). While Brame note s that in Webb v. Reisel , 858 S.W.2d 767, 769-70 (Mo. Ct. App. 1993), a n 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 stat e supreme court did not expressly decide the quest ion 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 negl igent acts or omissions." Jackson v. Roberts , 774 S.W.2d at 86 1 (teacher and assistant principal not immune from negligence action). Thus , the di strict court did not err in rejecting Brame's claim of immunity. 3

We now turn to the section 1292(b) a ppeal of the federal claims. As previo uslyindicated, section 1292(b) provides that if a district cour t certifies that an "or der 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 ultimat e termination of

### The Supreme Court has recently made clear that "appellat e 4 

### jurisdiction applies to the order certified to the court o f appeals, and is not tied to the particular question formulated by the d istrict court." Yamaha Motor Corp. v. Calhoun , 116 S. Ct

. 619, 623 (1996).
-7- the litigation[,] . . . [t]he Court of Appeals . . . may thereupon, in its discr etion, permit an appeal to be taken from such order." We hav e 4 observ ed that "[i]nherent in these requirements is the concept o f ripeness." Paschall v. Kansas City Star Co. , 605 F.2d 403, 406 (8th Cir. 1979). In other word s, even if all three requirements are satisfied, the factual basis of a cl aim must be developed so that "we can make a precise decisio n upon a precise record--not an abstract answer to an abstrac t question." Id. at 407. "The record before us should assure us that the legal issue has arisen and exactly how the probl em arose before we fashion a response." Id.

In Paschall , although this court hadgranted permission to appeal an order concerning an antitrust issue and the issue had been briefed an d argued, we dismissed the appeal. The court pointed out that it was no t criticizing the district court for certifying the order or the panel for grantin g permission to appeal, explaining that a "close review of th e merits . . . was necessary before this court arrived at the conclusion tha t section 1292(b) certification was not proper." Id. After review the cour t 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 longe r be necessary." Id.

Likew ise, we reluctantly conclude that permission to appeal unde r section 1292(b) was improvidently granted. As to the Title IX issue, ther e 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 opinio n." Indeed, on appeal the parties have presented no less than four different legal theories upo n which to impose liability. Plaintiffs urge this court to adopt a strict lia bilitystandard, citing Leija v. Canutillo Indep. Sch. Dist. , 887 F

. Supp. 947, 953 (W.D. Tex. 1995), or in the alter native ask us to adopt the Title VII standard of liability, which would subject HSD to liability if it kne w or should have known of Evans' harassment and failed to tak e suff icient remedial action. In response, HSD argues that the stric t liability standard and the constructive knowledge--the "should have known"

- -compo nent 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 o f
unr esolved factual issues bearing on the framing and formulation of th e legal questions . . . to answer the legal questions presented would requir e
an exposition sufficiently broad to cover the various factual ramification s that may occur." International Soc'y for Krishna Consciousness v. Ai r Canada , 727 F.2d 253, 256 (2d Cir. 1984) (per curiam) (internal quotation omitt ed). "[We] decline[] to provide such a sweeping statement." Id

. "The purpose of section 1292(b) is not to offer advisory opinions 'rendere d
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 ex ample, we do not know whether the trier of fact will believ e any or all of Salters' testimony. If the trier of fact credits he r testi monythat she told Brame on two occasions that Evans had sexuall y abused her grandsons and HSD failed to take suff icient remedial action, it may not be necessary to decide whether a strict liability standard i s appropriate or whether HSD had knowledge of a ho stile environment based on Evans'

### -9-

"unsup ervised field trips." On the other hand, if the trier of fac t discre dits Salters' testimony regarding Evans' abuse, then we would no t have to decide the question whether as a matter of law her testimony was incr edible or too remote in time to establish knowledge of a hostil e 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 fac t worthy to serve as the premises essential t o balance and weigh the legal issues involved. Upon full review of the record we are satisfied tha t pre cision is lacking here. Our analysis leads u s to conclude that the issues presented on appeal are too significant and far reaching to be decide d 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 summar y judgment on the Title IX issue as improvidently granted.
In addition, permission to appeal the order was improvidently g ranted 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 p attern of unconstitutional acts committed by subordinates.'" Larson v. Mil ler , No. 94-2691, slip op. at 8 (8th Cir. Feb. 1 0, 1996) (quoting Jane Doe A. , 901 F.2d at 642). In Larson , this court found that there was no notice of a pattern of abus e 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 Truste es , 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 tha t in Jane Doe A. we found no pattern of unconstitu tional conduct even though
over a two-year period officials had received complaints that a "bus drive r had use d foul language, physically restrained and assaulted children , kis sed a child, placed his hand down a boy's pants, and touched boys '
cro tches." Id. In the present case, because the section 1983 "lega l issue[] [is] not novel, nor is there a substanti al basis for difference of opinion, as the law is relatively well-settled[,]" it cannot serve as a basis for the district court's certification und er 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 orde r reject ing Brame's immunity defense on the pendent negligence claim an d remand for further proceedings, and dismiss the section 1292(b) appea l concerning the Title IX and section 1983 issues as improvidently granted.

A true copy.

Attest:

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