Revised September 17, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10343 

_____________________

DOE, on behalf of John Doe, on behalf of Jack Doe, on 

behalf of James Doe; ET AL,

Plaintiffs,

JOHN DOE; JOE DOE; ROE, as next friend of Jack Roe; SMITH, 

as next friend of James Smith,

Plaintiffs-Appellants,

v.

DALLAS INDEPENDENT SCHOOL DISTRICT; ET AL,

Defendants,

DALLAS INDEPENDENT SCHOOL DISTRICT; BARBARA PATRICK,

Defendants-Appellees.

----------------------------------------------------------------

BOB BLACK; ET AL,

Plaintiffs,

v.

DALLAS INDEPENDENT SCHOOL DISTRICT; ET AL,

Defendants,

DALLAS INDEPENDENT SCHOOL DISTRICT; BARBARA PATRICK,

Defendants-Appellees.

_________________________________________________________________
2

Appeal from the United States District Court

for the Northern District of Texas 

_________________________________________________________________

August 27, 1998

Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.

KING, Circuit Judge:

 Plaintiffs-appellants appeal the district court’s grant

of summary judgment in favor of defendants-appellees on their

claims brought under 42 U.S.C. § 1983. Additionally, plaintiffsappellants appeal the district court’s dismissal of their claim

brought under Title IX of the Education Amendments of 1972, 20

U.S.C. § 1681, for failure to state a claim upon which relief

could be granted. For the reasons set forth below, we affirm the

district court’s grant of summary judgment for defendantsappellees on the § 1983 claims, reverse its dismissal of the

Title IX claim, and remand the case to the district court for

further proceedings consistent with this opinion.

I. FACTUAL & PROCEDURAL BACKGROUND

From 1983 to 1987, John McGrew, a third-grade teacher and

Boy Scout Troop leader at Joseph J. Rhoads Elementary School,

sexually molested numerous male students. McGrew was

subsequently convicted in state court of one count of aggravated

sexual assault and two counts of indecency with a child. 

Following his conviction, McGrew was sentenced to one life

sentence and two twenty-year sentences.
1 For purposes of filing the lawsuit, the names of the

victims were changed to protect their identities. However, the

boys’ actual initials were used to identify them in depositions

and affidavits. 

2 Several of the defendants have since been dismissed

from the case. As their dismissals have not been appealed, they

are not relevant to our discussion.

3 Hereinafter, we refer to the plaintiffs from both suits

collectively as “Plaintiffs.”

3

This case was initially filed in state court on August 20,

1993 by or on behalf of John Doe, Joe Doe, Jack Doe, and James

Doe.1 On September 22, 1993, the action was removed to federal

district court. The original suit alleged claims against

numerous defendants2 based on McGrew’s abuse of the boys pursuant

to (1) 42 U.S.C. § 1983, (2) Title IX of the Education Amendments

of 1972, 20 U.S.C. § 1681 (Title IX), (3) the Texas Constitution,

and (4) Texas tort law. On March 29, 1995, the district court

dismissed the Title IX claim because it concluded, based on Fifth

Circuit precedent under Title VII which has since been overruled

by the Supreme Court, that same-sex sexual harassment was not

actionable under Title IX. In addition, the district court

dismissed the Texas common-law tort claims, finding that “[t]he

plaintiffs [had] not alleged [that] any of the moving defendants

committed common law torts.” A suit based on the same facts was

subsequently filed by or on behalf of plaintiffs-appellants Bob

Black, Bill Black, William White, and George Green, and on

February 20, 1996, the two actions were consolidated.3 
4

Plaintiffs argued to the district court that defendantsappellees Dallas Independent School District (DISD) and Principal

Barbara Patrick (collectively, Defendants) knew or should have

known of McGrew’s sexual abuse as early as the 1983-1984 school

year and that, despite having such knowledge, they acted with

deliberate indifference toward Plaintiffs’ rights, taking no

action to stop the abuse. Defendants filed a motion for summary

judgment on Plaintiffs’ § 1983 claims on the grounds that (1) no

basis existed for holding DISD liable for the conduct of McGrew

and (2) Patrick was entitled to qualified immunity. The district

court granted Defendants’ motion on October 29, 1996, and it

entered final judgment for Defendants on March 6, 1997. 

Plaintiffs thereafter timely appealed to this court.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the

same criteria used by the district court in the first instance. 

See Kemp v. G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997). 

After consulting applicable law in order to ascertain the

material factual issues, we consider the evidence bearing on

those issues, viewing the facts and the inferences to be drawn

therefrom in the light most favorable to the nonmovant. See King

v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). Summary judgment is

appropriate only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the
5

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(c). However, “[t]he mere

existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient [to preclude summary

judgment]; there must be evidence on which the jury could

reasonably find for the plaintiff.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986).

We also review de novo a dismissal for failure to state a

claim upon which relief could be granted. See Norman v. Apache

Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). A case or a portion

thereof may not be dismissed for failure to state a claim unless

it appears certain that the plaintiffs cannot prove any set of

facts in support of their claim that would entitle them to

relief. See Carney v. RTC, 19 F.3d 950, 954 (5th Cir. 1994).

III. DISCUSSION

Plaintiffs raise several issues on appeal. First, they

contend that the district court erred in granting summary

judgment in favor of DISD on their § 1983 claim against it. 

Second, they argue that Patrick is not entitled to qualified

immunity. Third, Plaintiffs assert that the Supreme Court’s

decision in Oncale v. Sundowner Offshore Services, Inc., 118 S.

Ct. 998 (1998), renders the district court’s dismissal of their
6

Title IX claim erroneous. We address each of these arguments in

turn.

A. 42 U.S.C. § 1983

Section 1983 provides injured plaintiffs with a cause of

action when they have been deprived of federal rights under color

of state law. The statute states,

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress

. . . .

42 U.S.C. § 1983. In order to state a valid claim under § 1983,

Plaintiffs must “(1) allege a violation of rights secured by the

Constitution or laws of the United States and (2) demonstrate

that the alleged deprivation was committed by a person [or

entity] acting under color of state law.” Leffall v. Dallas

Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994) (citing West

v. Atkins, 487 U.S. 42, 48 (1988)). Plaintiffs contend that they

presented sufficient summary judgment evidence to create a

genuine issue of material fact as to whether DISD and Patrick,

acting under color of state law, violated their constitutional

rights by failing to protect them from abuse at the hands of

McGrew. 

1. DISD
7

Under § 1983, a municipality or local governmental entity

such as an independent school district may be held liable only

for acts for which it is actually responsible. See Pembaur v.

City of Cincinnati, 475 U.S. 469, 480 (1986); Spann v. Tyler

Indep. Sch. Dist., 876 F.2d 437, 438 (5th Cir. 1989). Thus, “a

municipality cannot be held liable solely because it employs a

tortfeasor--or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.” Monell v.

Dep’t of Social Servs. of New York, 436 U.S. 658, 691 (1978); see

also 1B MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION:

CLAIMS AND DEFENSES § 7.5 (3d ed. 1997). However, a municipality

may be held liable under § 1983 when “execution of a government’s

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy,

inflicts the injury.” Monell, 436 U.S. at 694; see also 1B

SCHWARTZ & KIRKLIN, supra, § 7.5 (“A municipality is liable for its

own wrongs when enforcement of a municipal policy or practice

results in a deprivation of federally protected rights.”). 

“Thus, § 1983 municipal liability may be imposed when (1) the

enforcement of a municipal policy or custom was (2) ‘the moving

force’ of the violation of federally protected rights.” 1B

SCHWARTZ & KIRKLIN, supra, § 7.6 (quoting City of Canton v. Harris,

489 U.S. 378, 385-91 (1989)). 

Plaintiffs rely on two distinct rationales in support of

their claim that DISD is liable to them under § 1983. First,
8

they argue that DISD is liable for Patrick’s deliberate

indifference to their constitutional rights because it delegated

to her policymaking authority over the school’s response to

allegations of sexual abuse. Second, Plaintiffs contend that

DISD’s failure to adopt a policy regarding what steps should be

taken when a child alleges that he was a victim of sexual abuse

at the hands of a school employee amounts to deliberate

indifference on the part of DISD itself. DISD responds that

Patrick was not a policymaker and that it therefore may not be

held liable for her actions or inactions. In addition, it argues

that it may not be held liable for the non-existence of a policy

on sexual abuse.

The district court determined that, under Texas law, Patrick

was not an official policymaker for DISD and that DISD’s Board of

Directors did not delegate any final policymaking authority to

Patrick. Moreover, the district court held that DISD’s failure

to adopt a specific policy to protect against the sexual abuse of

students did not cause the constitutional violations suffered by

Plaintiffs. It therefore held that Plaintiffs failed to

establish a genuine issue of material fact with respect to DISD’s

liability, and it granted summary judgment in favor of DISD.

Whether an official has policymaking authority is a question

of state law. Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241,

1245 (5th Cir. 1993). In Jett, this court explained that under
9

Texas law, policymaking authority in an independent school

district rests with the board of trustees.

Texas law is clear that final policymaking authority in

an independent school district, such as the DISD, rests

with the district’s board of trustees. Texas Education

Code § 23.01 provides that “The public schools of an

independent school district shall be under the control

and management of a board of seven trustees.” The

Education Code further provides that “[t]he trustees

shall have the exclusive power to manage and govern the

public free schools of the district,” id. § 23.36(b)

(emphasis added), and that “[t]he trustees may adopt

such rules, regulations, and by-laws as they may deem

proper.” Id. § 23.26(d). . . . It is to be noted that

the Education Code gives the board of trustees not only

what might be described as a form of legislative power

over the district they serve--the power to make “rules,

regulations, and by-laws”--but also a form of executive

power, the power to “control” and the “exclusive” power

to “manage” as well as to “govern” the district. 

Id. (footnote omitted and alterations in original except for

ellipsis). Moreover, we have noted that, “although Texas law

provides that the principal is to exercise decision-making

authority in certain areas, even in those areas the principal

must follow the guidelines and policies established by the school

district.” Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304

(5th Cir. 1995). 

The Supreme Court has cautioned that “a federal court would

not be justified in assuming that municipal policymaking

authority lies somewhere other than where the applicable law

purports to put it.” City of St. Louis v. Praprotnik, 485 U.S.

112, 126 (1988). Additionally, Supreme Court precedent indicates

that a body vested with policymaking authority cannot be found to
10

have delegated that authority to a subordinate official merely

because it failed to investigate her discretionary actions. See

id. at 130. 

Plaintiffs allege that because DISD had no formal policy for

addressing allegations of sexual abuse, it delegated to

principals, such as Patrick, the authority to make policy in that

area. Plaintiffs rely solely on the deposition testimony of Nell

Lewis, DISD’s former executive director for elementary education,

to support this argument. Lewis testified that DISD had no

standard procedure for handling allegations of sexual abuse and

that often a school’s principal made the initial decision as to

what actions to take in response to such an allegation. 

Plaintiffs contend that this evidences DISD’s delegation of

policymaking authority to Patrick. We disagree. As the district

court properly concluded, Lewis’s testimony establishes only that

principals were given the discretion to handle allegations of

sexual abuse, not that they were delegated the broader authority

to formulate official policy on the subject. 

Plaintiffs next contend that DISD’s failure to adopt an

official policy should subject them to liability. A school

district’s failure to adopt an official policy on a given subject

may serve as the basis for § 1983 liability only when the

omission “amount[s] to an intentional choice, not merely an

unintentionally negligent oversight,” and the Supreme Court has

held that such an omission is equivalent to an intentional choice
4 In Spann, the plaintiff alleged that the school

district was liable for the sexual abuse that he suffered at the

hands of a school bus driver because the principal failed to take

action on Spann’s earlier complaint regarding the abuse. See 876

F.2d at 437-38. The school district had a policy that delegated

to the school principal “the complete discretion whether to

investigate reports of sexual abuse and determine their

validity.” Id. at 438. This court held that

[t]he repetition of Jason’s injury was not caused by

school board policy: the school board had a perfectly

reasonable policy for dealing with reported instances

of sexual abuse. Instead the injury was caused by the

failure of [the principal] properly to exercise the

discretion granted him by the policy of TISD. To hold

TISD liable for the omissions of the principal would

fly in the face of Monell’s explicit holding that the

school board cannot be held liable for the acts of its

11

only where the entity has acted with deliberate indifference. 

Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992)

(citing City of Canton, 489 U.S. at 390). “A failure to adopt a

policy can be deliberately indifferent when it is obvious that

the likely consequences of not adopting a policy will be a

deprivation of constitutional rights.” Id. (citing City of

Canton, 489 U.S. at 390). 

Plaintiffs point to no evidence suggesting that, at the time

of the sexual abuse, the lack of an official policy on this issue

was the result of an intentional choice on the part of the board

of trustees. Moreover, in Spann v. Tyler Independent School

District, we held that a school board’s decision to vest school

principals with complete discretion to address allegations of

sexual abuse was a “perfectly reasonable policy for dealing with

reported instances of sexual abuse.”4 876 F.2d at 438. If an
employees on the basis of respondeat superior. . . . 

TISD did not officially sanction or order the error in

judgment of the school principal, and thus we reject

the notion that TISD is liable for the unfortunate

injury to Jason Spann.

Id. at 438-39. 

5 The events leading to this lawsuit took place over ten

years ago. At oral argument, Defendants’ counsel advised us that

DISD has since adopted specific policies relating to claims of

sexual abuse and harassment. 

12

explicit policy delegating the matter to principals was

“perfectly reasonable,” and thus did not constitute deliberate

indifference on the part of the school district, then we cannot

say that a custom tantamount to such a policy was not also

reasonable.5 Thus, the district court was correct in granting

summary judgment in favor of DISD.

2. Principal Barbara Patrick

Plaintiffs next argue that Patrick is not entitled to

qualified immunity for her actions or inactions because she had

notice of McGrew’s sexual abuse of Plaintiffs, she was

deliberately indifferent to it, and her failure to take action

caused Plaintiffs to suffer a constitutional injury. Patrick

claims that she is entitled to qualified immunity because she did

not have notice of the possibility of McGrew’s misconduct for the

majority of the period at issue and, when made aware of the
6 Patrick also relies on several other defenses in

support of her claim that she was entitled to summary judgment on

the issue of qualified immunity. Because we conclude that

Patrick did not act with deliberate indifference toward

Plaintiffs’ constitutional rights, we need not address these

arguments.

13

allegations, she did not respond in a manner that constituted

deliberate indifference toward Plaintiffs’ rights.6

The district court determined that a genuine issue of

material fact existed as to whether and when Patrick became aware

of allegations that McGrew was sexually abusing some of his

students. Nevertheless, the district court concluded that no

genuine issue of material fact existed as to whether Patrick

acted with deliberate indifference because she did not ignore the

information that she received. The district court therefore

granted summary judgment in favor of Patrick, finding that she

was entitled to qualified immunity.

We have formulated a three-part test for determining the

personal liability of school officials in sexual abuse cases.

A supervisory school official can be held personally

liable for a subordinate’s violation of an elementary

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

conclusion that the subordinate was sexually

abusing the student; and 

(2) the defendant demonstrated deliberate

indifference toward the constitutional rights

of the student by failing to take action that

was obviously necessary to prevent or stop

the abuse; and
7 However, the evidence regarding two of the boys bears

brief discussion. First, Plaintiff D.D.P. stated in a 1988

affidavit and in a 1996 deposition that McGrew had fondled him. 

In the affidavit, he claimed that he “told Ms. Patrick . . .

about what happened.” In his deposition testimony, however, he

clarified his report of the incident, stating that he actually

told two women who worked in Patrick’s office. While he stated

that he thought Patrick probably could hear what he was saying,

he admitted that she was in another room on the telephone and

that he could only see her through a partially open door. He

denied ever having spoken to Patrick herself. As D.D.P.’s

14

(3) such failure caused a constitutional injury

to the student.

Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994)

(en banc). Thus, in order to survive summary judgment,

Plaintiffs must put forth evidence sufficient to create a genuine

issue of material fact on each of these issues. 

Patrick first contends that Plaintiffs have failed to create

a genuine issue of material fact as to whether she had notice of

“facts or a pattern of inappropriate sexual behavior by a

subordinate pointing plainly toward the conclusion that the

subordinate was sexually abusing . . . student[s].” Id.

Plaintiffs argue that Patrick was aware of McGrew’s actions. In

support of their claim, they offer the deposition testimony of

several children that McGrew molested, but the majority of the

victims testified that they either told no one about the abuse or

that they told only a teacher, a teacher’s aide, or a parent. 

They offered no evidence linking the information to Patrick. 

Therefore, these depositions do not support the claim that

Patrick was aware of the abuse.7 However, in the Spring of 1986,
statement that he was “pretty sure [Patrick] could have heard”

him telling the women in the office about the incident is

entirely speculative, it is not sufficient to raise a question of

fact as to whether Patrick was aware of the incident. See Ruiz

v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994) (“Testimony

based on conjecture or speculation is insufficient to raise an

issue of fact to defeat a summary judgment motion . . . .”). 

Second, plaintiff W.J.H. testified that Patrick may have

asked him whether McGrew had touched him, stating, “I think

[Patrick] asked all of us, I think, but I can’t remember though.” 

However, W.J.H. stated that when Patrick asked him about McGrew,

he denied that any improper touching had taken place. Assuming,

for purposes of summary judgment, that Patrick did ask W.J.H.

about any sexual abuse by McGrew, the fact that W.J.H. denied it

indicates that this incident was not sufficient to put Patrick on

notice of the abuse. 

15

plaintiff J.H. told his mother and Patrick that McGrew had

fondled him when he delivered a note to McGrew’s classroom. 

Patrick does not dispute that J.H. and his mother discussed the

incident with her. Thus, we conclude that Patrick had notice as

of the Spring of 1986 of an allegation that McGrew fondled J.H.

Given that Patrick had notice of an allegation of sexual

abuse by McGrew, we next consider whether Plaintiffs have created

a genuine issue of material fact as to whether Patrick acted with

deliberate indifference when informed of J.H.’s allegations. The

parties agree that upon hearing J.H.’s accusation, Patrick met

with J.H., his mother, and McGrew to discuss the issue. 

Plaintiffs nevertheless contend that Patrick’s failure to

reprimand McGrew formally or to transfer him indicates that she

was deliberately indifferent to the rights of J.H. We disagree. 
16

The deliberate indifference standard is a high one. Actions

and decisions by officials that are merely inept, erroneous,

ineffective, or negligent do not amount to deliberate

indifference and thus do not divest the official of qualified

immunity. In Taylor, we explained, 

We can foresee many good faith but ineffective

responses that might satisfy a school official’s

obligation in these situations, e.g., warning the state

actor, notifying the student’s parents, or removing the

student from the teacher’s class.

Id. at 456 n.12. This is just such a case. Patrick testified

that following her meeting with J.H., his mother, and McGrew, she

determined that J.H.’s allegations were not true. Nevertheless,

she warned McGrew to examine his behavior closely and to ensure

that he was not doing anything that could be misinterpreted by a

child. 

The fact that Patrick misread the situation and made a

tragic error in judgment does not create a genuine issue of

material fact as to whether she acted with deliberate

indifference toward J.H.’s constitutional rights. As Plaintiffs

have failed to create a genuine issue of material fact as to (1)

whether Patrick was aware of other allegations of abuse or (2)

whether she acted with deliberate indifference toward J.H.’s

constitutional rights upon being informed of his allegation, we

conclude that Patrick was entitled to summary judgment in her

favor on the issue of qualified immunity.
17

B. Title IX

Title IX provides in pertinent part that, “[n]o person . . .

shall, on the basis of sex, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Although its express means of

enforcement is administrative, the Supreme Court has held that

Title IX is also enforceable through an implied private right of

action in which the injured party may seek money damages. See

Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989, 1994

(1998) (citing Cannon v. University of Chicago, 441 U.S. 677

(1979) and Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60

(1992)). 

The district court dismissed Plaintiffs’ Title IX claim,

explaining that “[b]ecause the only basis of discrimination

alleged by the plaintiffs is same-sex harassment, the plaintiffs

have failed to state a claim under Title IX.” Plaintiffs argue

that in light of the Supreme Court’s recent decision in Oncale v.

Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998), the

district court erred in dismissing their Title IX claim pursuant

to Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim upon which relief could be granted. 

In Oncale, the Supreme Court explained that “nothing in

Title VII [of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
18

2000e-17,] necessarily bars a claim of discrimination ‘because of

. . . sex’ merely because the plaintiff and the defendant (or the

person charged with acting on behalf of the defendant) are of the

same sex.” Id. at 1001-02. Plaintiffs now argue that because

the district court’s dismissal of their Title IX claim was based

solely on this circuit’s precedent indicating that same-sex

sexual harassment was not actionable under Title VII, it must be

reversed in light of Oncale. 

Defendants concede that, in light of Oncale’s holding, samesex sexual harassment is actionable under Title IX as well as

under Title VII. They argue, however, that we should nonetheless

affirm the dismissal of Plaintiffs’ Title IX claim because the

court reached the right result, albeit for the wrong reason. 

Defendants therefore in essence suggest that because summary

judgment was appropriate on Plaintiffs’ § 1983 claims, which were

based on the same facts as the Title IX claim, we may affirm the

dismissal on that basis. We disagree.

A district court’s dismissal of a case or a portion thereof

for failure to state a claim upon which relief could be granted

is not equivalent to a grant of summary judgment.

The Rule 12(b)(6) motion . . . must be distinguished

from a motion for summary judgment under Rule 56, which

goes to the merits of the claim and is designed to test

whether there is a genuine issue of material fact. The

Rule 12(b)(6) motion, as has been mentioned above, only

tests whether the claim has been adequately stated in

the complaint.
8 Moreover, we note that, although they are similar, the

standards for school district liability under § 1983 and under

Title IX are not identical. In order to prevail against a school

district under Title IX, a plaintiff must demonstrate that “an

official who at a minimum has authority to address the alleged

discrimination and to institute corrective measures on the

[school district’s] behalf ha[d] actual knowledge of

discrimination . . . and fail[ed] adequately to respond.” 

Gebser, 118 S. Ct. at 1999. In order to prevail against the same

district under § 1983, however, the plaintiff must demonstrate

that “(1) the enforcement of a municipal policy or custom was (2)

‘the moving force’ of the violation of federally protected

rights.” 1B SCHWARTZ & KIRKLIN, supra, § 7.6 (quoting City of

Canton v. Harris, 489 U.S. 378, 385-91 (1989)). Plaintiffs have

not had occasion to put forth evidence in support of their Title

IX claim, and they must be given an opportunity to do so. See

Millar v. Houghton, 115 F.3d 348, 350 (5th Cir. 1997) (“Under

Fed. R. Civ. P. 56(c), a party must be served with a motion for

summary judgment at least 10 days before a court grants the

motion against him. Similarly, a party must be given at least 10

days notice before a court grants summary judgment sua sponte. 

This requirement places a party on notice that he is in jeopardy

of having his case dismissed and affords him the opportunity to

put forth evidence to show precisely how he intends to prove his

19

5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE

§ 1356 (2d ed. 1990). Neither Plaintiffs nor Defendants included

evidence outside the pleadings in their briefs discussing the

motion to dismiss, and the district court specifically noted that

it was accepting all well-pleaded facts alleged by Plaintiffs as

true.

While we have determined that the evidence presented by

Plaintiffs in opposition to Defendants’ motion for summary

judgment on the § 1983 claims failed to create a genuine issue of

material fact, we cannot say that as to the Title IX claim the

facts pled in the complaint, when taken as true, fail to state a

claim upon which relief could be granted.8 Therefore, we
case at trial.” (footnotes omitted)). 

In remanding this case for further proceedings, we in no way

intend to suggest that summary judgment would be inappropriate if

Defendants are able to demonstrate, as they did with respect to

Plaintiffs’ § 1983 claims, that no genuine issue of material fact

exists with respect to Plaintiffs’ Title IX claim. Indeed, given

the factual development that took place in this case with respect

to the § 1983 claims against DISD and Patrick, we can say that if

Plaintiffs can produce no additional evidence, Defendants will be

entitled to summary judgment on the Title IX claim. 

20

conclude that the district court’s judgment dismissing

Plaintiffs’ Title IX claim must be reversed and the case must be

remanded to the district court for further proceedings consistent

with this opinion.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of DISD on Plaintiffs’ § 1983

claim and its grant of summary judgment on the issue of Patrick’s

entitlement to qualified immunity; we REVERSE the district

court’s dismissal of Plaintiffs’ Title IX claim; and we REMAND

the case to the district court for further proceedings consistent

with this opinion. Each party shall bear its own costs.