PRESENT: Carrico, C.J., Compton, Hassell, Keenan, Koontz, 

and Kinser, JJ., and Whiting, Senior Justice 

THE SCHOOL BOARD OF THE CITY OF PORTSMOUTH 

 OPINION BY 

v. Record No. 982466 SENIOR JUSTICE HENRY H. WHITING 

 September 17, 1999 

LATASHA COLANDER 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 In this appeal, we consider whether a high school

student established a cause of action against a school

board pursuant to 42 U.S.C. § 1983, which states, in

relevant part:

Every person who, under color of any statute, 

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

. . . 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. 

42 U.S.C. § 1983 (emphasis added). 

 In 1995, the school administration at Wilson High 

School in Portsmouth discovered that, beginning in late 

1991 or early 1992, John Crute, a teacher and women's track 

coach, had been secretly videotaping the plaintiff, Latasha 

Colander, and other members of the women's track team in 

various stages of undress in the women's locker room at the 

high school. 
 In 1996, after the plaintiff learned of Crute's 

activities, she filed this action asserting a number of 

claims under 42 U.S.C. § 1983 against Crute, the school 

board, the superintendent of schools, the principal, and 

the athletic director. She also filed common law claims 

against Crute, but those claims are not pertinent to our 

resolution of this appeal. 

 Prior to trial, the three school officials were 

dismissed on summary judgment.1 At trial, Crute admitted 

liability. In returning verdicts against Crute and the 

school board, the jury awarded damages in the following 

sums: $43,000 in compensatory damages and $500,000 in 

punitive damages against Crute, and $250,000 in 

compensatory damages against the school board. 

Judgment was entered on the verdicts, and the school board 

appeals. Applying well-settled principles of appellate 

review, we will review the facts in the light most 

favorable to the plaintiff who is fortified with a jury 

verdict approved by the trial court. 

 In 1988 and 1989, more than two years before the 

secret videotaping that precipitated the present litigation 

 

1

 Apparently, those three officials were not in office at 

the time of the acts giving rise to the alleged § 1983 

liability. 

2
began, Crute videotaped a number of team members in various 

track uniforms with their knowledge and consent. During 

this period, 14-year-old Lakesha Coletrain, a team member, 

agreed to Crute's request that she remain after track 

practice to be videotaped in her track uniform for a 

portfolio Crute said he was preparing for each girl. After 

the other members of the team had left the school, 

Coletrain went with Crute to a remote area of the school 

building where Crute videotaped her in eight different 

track uniforms. 

 Each time Coletrain changed uniforms, she went into a 

classroom and closed the door. Crute asked Coletrain to 

remove her underpants to change into one uniform that was 

cut high in the pubic area because he said that the uniform 

did not look good with the underpants. During the 

videotaping session, Crute instructed Coletrain to stretch 

her legs on the floor and over a hurdle. He told her that 

if the stretching hurt, she could grunt because it would 

not be heard on the videotape since he would talk over it. 

Upon Coletrain's return home, her parents questioned 

her about the videotaping session and learned that 

Coletrain had been alone with Crute during the three to 

four hour period in which he videotaped her. The next day, 

3
her father went to the school and demanded that Crute give 

him a copy of the tape, which Crute did the following day. 

Both parents viewed the tape and the father testified 

that the tape "looked like it had just been spliced," and 

was "about a three-minute version" of the taping session. 

He also testified that the tape showed his daughter in 

eight different track uniforms that looked like bathing 

suits, that she had her leg propped up as if she were 

jumping a hurdle, that the camera was "zooming in on her 

crotch, zoomed in on her rear," that he heard Crute's voice 

in the background encouraging her to stretch her legs while 

in a stretching pose, and that Crute was also doing "a lot 

[of] moaning and groaning." 

Upon hearing the Coletrains' complaint about the tape 

and Crute's conduct the next day, the superintendent of 

schools ordered Judith Kirman, the high school principal, 

to conduct an investigation to ascertain whether Crute had 

done anything objectionable or inappropriate. Crute 

furnished copies of the videotapes to Kirman and the school 

officials who assisted in the investigation. The 

investigators viewed a copy of each track member's tape 

during their separate interviews with most of the team 

members and their parents or guardians. 

4
Although the Coletrains and another parent thought 

that Crute's actions were inappropriate, other parents did 

not. Kirman and the other school officials concluded that 

Crute had done nothing objectionable or inappropriate. In 

accordance with the school policy of "progressive 

discipline," no record of the incident was kept in Crute's 

personnel file because it was the first complaint against 

Crute and, upon investigation, it had been found to be 

groundless. 

Nevertheless, upon terminating the investigation, 

Kirman ordered Crute to modify his past practices by (1) 

confining the videotaping of team members to "track meets 

when the girls were running," (2) taking a female chaperone 

to out-of-school-district track meets, and (3) refraining 

from driving team members home in his car after track 

practices. Although Crute violated the second and third 

orders on one or more occasions, there was no evidence that 

anyone was aware of his violation of the first order until 

the 1995 discovery of the secret videotaping. 

It was then discovered that, beginning in late 1991 or 

early 1992, Crute had concealed one of the school's video 

cameras in a storage room adjoining the women's locker 

room. He used the camera to secretly videotape track 

members, including the plaintiff, changing their clothes. 

5
The plaintiff's motion for judgment claims that Crute's 

actions were in violation of her "constitutional right to 

bodily security and integrity to be free from unjustified 

intrusions on her personal security, and to personal 

privacy." The plaintiff also alleged that the school board 

had knowledge of Crute's activity and of his "propensity to 

behave inappropriately towards the students under his 

direction and control based on prior complaints," yet "made 

and enforced a policy of allowing defendant Crute to 

continue his inappropriate behaviors by failing to take 

immediate and decisive action to end such conduct." 

The school board has raised a number of questions on 

appeal, but we find dispositive issues concerning the 

school board's alleged violation of its duty to the 

plaintiff under § 1983 and the causal connection of that 

violation to the deprivation of the plaintiff's 

constitutional rights. The plaintiff claims, however, that 

we cannot reach these issues because the school board 

failed to raise them in the trial court. We disagree with 

that claim. 

The record shows that in its motion to strike the 

plaintiff's evidence at trial, the school board cited 

Commissioners of Bryan County v. Brown, 520 U.S. 397 

(1997), and argued as follows: "Congress did not intend to 

6
impose liability on a municipality unless deliberate action 

attributable to [the] municipality itself is a moving force 

behind the plaintiff's deprivation of federal 

rights. . . .[I]t must be deliberate indifference on behalf 

of the school officials. . . .[T]he facts. . .cannot rise 

to the level of constituting an official policy of the 

School Board and a causal connection to a federal violation 

of the plaintiff's Constitutional rights. . . .There's been 

no deliberate indifference shown by anyone." We think 

these statements were sufficient to preserve for appeal the 

issues we find dispositive, and we will proceed to the 

merits of the case. 

The right of action advanced by the plaintiff arises 

under a federal statute. Therefore, we apply federal 

jurisprudence in determining her rights. Federal Deposit 

Insurance Corporation v. Mapp's Ex'r, 184 Va. 970, 974, 37 

S.E.2d 23, 24 (1946); Southern Ry. v. Wilmouth, 154 Va. 

582, 589, 153 S.E. 874, 876 (1930). Although 

"municipalities and other local governmental bodies are 

'persons' within the meaning of § 1983," a § 1983 plaintiff 

must show that the governmental body itself "caused" the 

deprivation of the plaintiff's constitutional rights. 

Bryan County, 520 U.S. at 403. 

7
The plaintiff's claim is that the school board's 

facially lawful decision to retain Crute as a teacher after 

the Kirman investigation and not to take special 

precautions to prevent future improper conduct by him 

caused a violation of her constitutional rights. She 

relies primarily upon the 1988-89 videotaping of team 

members, the school's "progressive discipline" policy, its 

allegedly inadequate investigation of those incidents, and 

its conduct following the investigation. 

The school board responds that, as a matter of law, 

these matters of Crute's conduct prior to the secret 

videotaping were insufficient to establish the necessary 

violation of a duty to the plaintiff and a causal 

connection between the board's conduct and the subsequent 

deprivation of the plaintiff's federal rights. We agree 

with the school board. 

In Bryan County, a sheriff's facially lawful decision 

to hire a deputy sheriff without proper investigation of 

his background was claimed to have caused a violation of 

the plaintiff's § 1983 rights when the deputy sheriff 

assaulted her upon her arrest.2 520 U.S. at 399-400. In 

 

2

 Bryan County stipulated that the sheriff was the final 

"decisionmaker" for the county in the hiring matter. As 

such, the Court held that his actions fairly could have 

8
reversing the lower courts' affirmation of a jury's verdict 

against the county for such alleged violations, the Court 

noted that § 1983 does not impose liability on a county 

under traditional employer-employee relationships with an 

employee tortfeasor. Instead, 

[a] plaintiff must also demonstrate that, through 

its deliberate conduct, the municipality was the 

"moving force" behind the injury alleged. That is, a 

plaintiff must show that the municipal action was 

taken with the requisite degree of culpability and 

must demonstrate a direct causal link between the 

municipal action and the deprivation of federal 

rights. 

520 U.S. at 404 (second emphasis added). 

Thus, although a governmental body may have been 

negligent in regard to the plaintiff's federal rights, in 

order to show that it "caused" the violation of those 

rights, "[a] plaintiff must demonstrate that [the 

governmental] decision reflects deliberate indifference to 

the risk that a violation of a particular constitutional or 

statutory right will follow the decision." 520 U.S. at 

411. And, the required "'deliberate indifference' is a 

stringent standard of fault, requiring proof that a 

municipal actor disregarded a known or obvious consequence 

of his action." 520 U.S. at 410. 

 

been treated as actions of the county. Bryan County, 520 

U.S. at 403-04. 

9
Reasonable persons might conclude that Crute should 

have been discharged or more carefully monitored after the 

Kirman investigation. However, in our opinion, the 

evidence is insufficient to support a conclusion by 

reasonable persons that the above-described school board 

actions reflected the required deliberate indifference to 

the risk that he would violate the plaintiff's § 1983 

rights in the manner alleged. Therefore, we hold, as a 

matter of law, that the school board did not cause the 

violation of the plaintiff's § 1983 rights. 

Accordingly, we will reverse the judgment of the trial 

court against the school board and enter final judgment 

here for the school board. 

Reversed and final judgment. 

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