1The Honorable Harry F. Barnes, United States District Judge for the Western

District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-2710

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P.H.,

Appellant,

v.

The School District of Kansas City,

Missouri,

Appellee.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: May 16, 2001

 Filed: September 7, 2001

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Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and BARNES,1 District

Judge. 

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HANSEN, Circuit Judge.
2The Honorable John T. Maughmer, Chief United States Magistrate Judge for

the Western District of Missouri, presiding by consent of the parties pursuant to 28

U.S.C. § 636(c). 

2

P.H. appeals the district court’s2 grant of summary judgment in favor of the

Kansas City School District (KCSD) in this case, alleging civil rights violations and

sexual discrimination arising from a two-year sexual relationship between a high school

teacher and P.H., who was a student at the time. We affirm. 

I. 

In the summary judgment context, we view the facts and the inferences to be

drawn from them in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The facts asserted,

however, must be properly supported by the record. Tlamka v. Serrell, 244 F.3d 628,

632 (8th Cir. 2001). The undisputed facts taken in the light most favorable to P.H. are

as follows. 

John Hopkins, a teacher at Paseo High School in Kansas City, Missouri, engaged

in sexual relations with a male student, referred to here as P.H., from late 1995 through

December 1997. P.H. said that Hopkins engaged him in oral sex almost daily

throughout that time period, oftentimes at school during school hours or at hotels and

other places. Hopkins gave P.H. many gifts and offered help as P.H.’s grades began

to drop from his failure to attend classes. P.H. was absent from classes approximately

25% of the time. His many absences and excessive tardiness resulted from spending

too much time with Hopkins during the school day. 

KCSD claimed that it had no notice of Hopkins’ misbehavior until P.H.’s mother

complained on January 5, 1998. Dorothy Shepherd had been the school principal from

1995 through December of 1997, and she was succeeded by Roger Williams in January
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of 1998. Sherry Sample was the vice principal the entire time. The only complaints

school officials received concerned P.H.’s tardiness and absences or general complaints

about P.H. spending too much time with Hopkins. Also, teachers noticed that P.H.’s

grades began to fall. Neither P.H. nor anyone else ever complained to school officials

about sexual abuse or suspected abuse while it was occurring. Principal Dorothy

Shepherd testified that several of P.H.’s teachers had complained to her about Hopkins

making P.H. tardy or absent from their classes and that P.H.’s grades were suffering

because of it. Ms. Shepherd had confronted Hopkins and warned him to discontinue

his actions. She had also spoken to P.H. and his mother about the concerns. 

Vice Principal Sherry Sample had heard complaints that Hopkins was spending

“a lot of time with the same students.” (Appellant’s App. at 378.) Fearing that his

actions appeared to be favoritism, Ms. Sample confronted Hopkins about the

complaints, but Hopkins always had an explanation because the same students were

involved in student organizations and activities that he sponsored, such as his

leadership class, student council, and his peer mediation team. He explained that he

would naturally have more contact with these students, and P.H. was one of them. Ms.

Sample stated as follows: “But what I told him was, I said, you know, you’re spending

a lot of time with the same kids. I’m not accusing you of anything, but it just doesn’t

look right so I wouldn’t recommend it. He always had a logical explanation.” (Id. at

380-81.) Ms. Sample testified that prior to the complaint by P.H.’s mother, she had

never heard rumors or reports that Hopkins was having improper sexual or physical

contact with students. After the investigation came to light, she said she had heard one

teacher remark that “they finally got him . . . or something along those lines.” (Id. at

390.) There is no evidence, however, that any teacher had expressed a suspicion of

sexual abuse prior to that time. 

Immediately following the complaint by P.H.’s mother in January of 1998, the

principal removed Hopkins from the classroom, reported the allegations to the Division

of Family Services, initiated an investigation, and petitioned for the revocation of
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Hopkins’ teaching license. Hopkins never returned to the classroom but was allowed

to remain as an employee of the KCSD in an administrative capacity, pending

completion of the investigation. Ultimately, in July 1999 Hopkins pleaded guilty to

four counts of statutory sodomy involving P.H. and voluntarily resigned. 

P.H. brought this lawsuit against the KCSD, asserting sexual discrimination in

violation of Title IX, see 20 U.S.C. § 1681 (1994); civil rights violations under 42

U.S.C. § 1983; common law failure to supervise; and a violation of the Violence

Against Women Act. The district court granted the KCSD summary judgment on all

grounds. P.H. appeals the grant of summary judgment only as to the § 1983 claim for

civil rights violations and the Title IX sexual discrimination claim. 

II. 

We review the district court’s grant of summary judgment de novo, applying the

same standards as the district court. Stuart v. Gen. Motors Corp., 217 F.3d 621, 630

(8th Cir. 2000). Summary judgment is appropriate if the record “show[s] that there is

no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “To avoid summary judgment,

the non-movant must make a sufficient showing on every essential element of its claim

on which it bears the burden of proof.” Buettner v. Arch Coal Sales Co., 216 F.3d 707,

718 (8th Cir. 2000), cert. denied, 121 S. Ct. 773 (2001). We look to the substantive

law to determine whether an element is essential to a case, and “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). P.H., as the nonmoving party, “is entitled to all reasonable

inferences–those that can be drawn from the evidence without resort to speculation.”

Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir.

2001) (internal quotations omitted). 
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A.

P.H. first argues that the district court erroneously granted summary judgment

on the § 1983 claim. “It is well-settled that the Due Process Clause of the Fourteenth

Amendment protects the liberty interest of a child in public school from sexual abuse.”

Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 778 (8th Cir. 2001). A school district can

be liable for civil rights violations under § 1983 either for failing to receive, investigate,

and act upon complaints of sexual abuse or for failing to train its employees to prevent

or terminate sexual abuse. Thelma D. v. Bd. of Educ. of City of St. Louis, 934 F.2d

929, 932, 934 (8th Cir. 1991). P.H. contends that material issues of fact remain

concerning whether the KCSD had notice of the sexual abuse and whether it failed to

train its employees to avoid sexual abuse with students or to recognize and report

sexual abuse. 

1. Failure to Receive, Investigate, and Act on Complaints.

A school district “may be found liable for ‘a governmental custom of failing to

receive, investigate and act upon complaints of sexual misconduct of its employees’ if

the [plaintiff] proved the existence of an official custom of such conduct and if that

custom caused [the plaintiff] constitutional harm.” Larson v. Miller, 76 F.3d 1446,

1453 (8th Cir. 1996) (en banc) (quoting Thelma D., 934 F.2d at 932). To establish the

custom of failure to receive, investigate, or act on complaints of constitutional

violations, the plaintiff must prove (1) a continuing, widespread, persistent pattern of

misconduct by the government employee; (2) deliberate indifference to or tacit

authorization of the conduct by the policy-making officials after the officials have

notice of the conduct; and (3) a resulting injury on the part of the plaintiff. Jane Doe

A. v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990).

There is no dispute that the sexual abuse violations by Hopkins were persistently

ongoing from 1995 through 1997 and that they caused injury to the plaintiff. However,
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P.H. has failed to demonstrate a material issue of fact showing that the KCSD had

notice of the conduct and was deliberately indifferent to or tacitly authorized the

inappropriate conduct. Instead, the record demonstrates that once P.H.’s mother

complained, the school district took immediate action to remove Hopkins from the

classroom and begin a criminal investigation. Prior to that complaint, there were no

reports of sexual contact or suspected sexual contact between P.H. and Hopkins. The

school officials had inquired about Hopkins’ conduct of spending too much time with

P.H. and causing him to be absent from or tardy to classes. School officials had

warned Hopkins to discontinue this conduct. There is no indication, however, that the

KCSD had any notice of an ongoing pattern of sexual abuse by Hopkins; the KCSD

may not be found to have been deliberately indifferent to or to have tacitly authorized

conduct of which it was unaware. 

P.H. would have us infer notice to the KCSD from the totality of the facts. He

points first to the fact that he spent too much time with Hopkins resulting in excessive

tardiness and absences. We conclude that this is an insufficient basis from which

reasonably to infer that the KCSD had notice of the sexual misconduct. The record

indicates that Hopkins was spending an excessive amount of time with P.H., resulting

in absences, tardiness, and falling grades. Such action on the part of a teacher is

certainly cause for concern, but it does not automatically give rise to a reasonable

inference of sexual abuse. The principal and vice principal confronted Hopkins and

expressed concern to P.H. and his mother, but allegations of sexual misconduct never

surfaced. The school officials’ conduct of not discovering the sexual abuse given all

of P.H.’s absences and his falling grades at most rises to negligence, but mere

“negligence does not implicate [F]ourteenth [A]mendment protections.” Id.

P.H. also asserts that Vice Principal Sherry Sample had heard rumors of an

improper sexual relationship between them, that there was a 1978 allegation of sexual

misconduct between Hopkins and a male student in a different school, and that there

was one incident at school where a teacher walked into an office and discovered
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Hopkins and P.H. in the act of sexual contact. After thoroughly reviewing the record,

we conclude that P.H.’s assertions are not factually accurate. As the nonmoving party,

P.H. is entitled to all inferences that reasonably can be drawn from the record evidence.

The record here simply does not support P.H.’s characterization of these facts. 

First, Ms. Sample stated only that she had heard “rumors.” (Appellant’s App.

at 378.) Specifically, she explained that the rumors she had heard were that Hopkins

“[s]pends a lot of time with the same students.” (Id.) She did not state that these

rumors insinuated any sexual misconduct. In fact, she explicitly answered “no” to the

question of whether she had heard any rumors, gossip, or reports “that Mr. Hopkins

was having improper sexual or physical contact with students.” (Id. at 389.) Ms.

Sample once confronted Hopkins about his conduct of spending too much time with

P.H. saying, “I’m not accusing you of anything, but it just doesn’t look right so I

wouldn’t recommend it.” (Id. at 380-81.) P.H. asserts that Ms. Sample was actually

accusing Hopkins of sexual misconduct. Such an inference, however, does not arise

from the record. Ms. Sample’s own testimony clarified her statement. She said, “[t]o

me it gave the idea of favoritism to other students. Or he might be trying to pull

s[t]rings for them.” (Id. at 382.) 

Second, the record indicates nothing more than a report or allegation of sexual

abuse involving Hopkins nearly 20 years before, in 1978. KCSD asserts that the

allegation was not substantiated. Both Hopkins and the alleged student victim denied

the incident. Hopkins was transferred to Paseo High School on serious charges of

misconduct. Hopkins asserts the transfer resulted from his refusal to take a polygraph

examination about the incident on the advice of counsel. Even taking the 1978 report

as a credible complaint, it remains as one isolated complaint that was nearly 20 years

old at the time of Hopkins’ abusive conduct in this case. While it is undisputed that the

pattern of behavior against P.H. was continuing and persistent, there is no evidence that

the KCSD had knowledge of that pattern of behavior, and this one 20-year-old

complaint is not itself a sufficient basis on which to infer that the KCSD had notice of
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the improper sexual contact between Hopkins and P.H. See Larson, 76 F.3d at 1453

(noting that we have held records with far more complaints than one as insufficient to

constitute a pattern of unconstitutional behavior).

Finally, P.H.’s assertion that a teacher walked in and observed him in an act of

sexual contact with Hopkins is not substantiated even by P.H.’s own testimony. P.H.

could not identify the teacher, and he testified only that on one occasion, a woman

teacher walked into an office where he and Hopkins were engaged in sexual contact.

As she turned on the light, Hopkins put on his glasses and pretended to look in a file

cabinet and P.H. covered himself up “and leaned up so she doesn’t see anything else.”

(Appellant’s App. at 319-20.) Thus, by P.H.’s own testimony, this unidentified

teacher did not see a sexual act. 

P.H. hid the relationship and did not complain about sexual misconduct until the

relationship had ended. The record contains no evidence from which we can properly

infer that the KCSD had notice of any sexual contact between the two, let alone a

pattern of sexual misconduct by Hopkins against P.H. Thus, the district court correctly

determined that there can be no § 1983 liability here for failure to adequately receive,

investigate, or act upon complaints of sexual abuse by an employee. 

2. Failure to Train.

To establish § 1983 liability on the part of a school district for failure to

adequately train its employees to report and prevent sexual abuse of students, there

must be proof that this failure to train evidences a deliberate indifference to the rights

of the students. Larson, 76 F.3d at 1454. The plaintiff must prove that the school

district had notice that its procedures were inadequate and likely to cause a

constitutional violation. Id. Notice may be implied where the failure to train is so

likely to result in a constitutional violation that the need for training is patently obvious

or where a pattern of misconduct indicates that the school district’s responses to a
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regularly recurring situation are insufficient to protect the students’ constitutional rights.

Thelma D., 934 F.2d at 934, 935. 

The record indicates that the KCSD had developed and implemented policies

prohibiting sexual abuse of students and procedures for handling complaints of sexual

abuse. The KCSD required employees to report all suspected cases of child abuse.

The teacher handbooks state policies prohibiting sexual abuse and harassment,

procedures were in place for remedying such abuse, and in-service meetings were held

to educate administrators and staff. P.H. complains that the 1995 sexual harassment

in-service training involved only supervisors and administrators, not teachers. The

summary report of this in-service training, however, provides a list of the next steps for

the KCSD, which specifically includes “[w]ork[ing] with school building administrators

to ensure understanding among teachers and staff.” (Appellant’s App. at 166.) There

is no indication on this record that the KCSD had notice that its policies were

inadequate. Training appears to have been ongoing. There is no evidence of any other

complaints of teacher-student sexual misconduct and no indications that the failure to

offer more training was likely to result in a constitutional violation. 

P.H. complains that the policies in place prohibited only unwelcome sexual

contact, not consensual sexual contact between a student and a teacher. We

respectfully disagree. Even the policy approved as early as December 1994 defines

improper sexual harassment as consisting “of verbal or physical conduct relating to an

individual’s sex which has any one of the following effects . . . interfering with an

individual’s work or academic performance.” (Appellant’s App. at 163.) Regardless

of the welcome or unwelcome nature of the sexual contact between P.H. and Hopkins,

that contact certainly had the effect of interfering with P.H.’s academic performance,

and Hopkins had notice that this was prohibited conduct by reason of the handbook.

He also had been given personal warnings that he should not interfere with P.H.’s

ability to attend regular classes. A handbook need not spell out every specific factual
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scenario of sexual abuse or harassment that is prohibited in order to be effective.

Hopkins simply chose to disregard the handbook and all common sense. 

B. Title IX

Title IX provides that “[n]o person in the United States 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). It is important to note, however, “that the recipient

of federal funds may only be liable for damages arising from its own misconduct.”

Shrum, 249 F.3d at 781. Thus, in cases involving discrimination by an employee of the

recipient of federal funds, and not by any official policy of the recipient entity, there

can be no Title IX liability “unless an official who at a minimum has authority to

address the alleged discrimination and to institute corrective measures on the

recipient’s behalf has actual knowledge of discrimination in the recipient’s programs

and fails adequately to respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 290 (1998); see also Shrum, 249 F.3d at 782 (holding school district must be “(1)

deliberately indifferent (2) to known acts of discrimination (3) which occur under its

control” to be liable under Title IX). In other words, a school district must have had

actual notice of a teacher’s sexual harassment of a student and the school district must

have made an official decision not to remedy the violation in order for liability to attach

to the school district. Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610 (8th Cir.

1999).

P.H. argues that the actual notice standard of Gebser has not yet been clearly

defined. Relying on the 1978 allegation of abuse and his own statement that a teacher

had walked in on a sexual act occurring on school grounds, P.H. asserts that the KCSD

had received sufficient actual notice to suffer Title IX liability. We respectfully

disagree. 
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P.H. argues that the KCSD had notice of a prior report of sexual abuse against

Hopkins in 1978 and failed to investigate, indicating actual knowledge and an official

decision not to remedy the discrimination. The record, however, does not support this

assertion. Hopkins testified by deposition that he was informed of an investigation in

1978, that he knew students who were questioned about the allegation, that he was

asked to take a polygraph test but refused on the advice of counsel, and that the

investigation was closed because the boy denied the incident and so did Hopkins.

Also, a former school board member testified that, while he could not remember this

particular incident, it was the school board’s practice to destroy the records of

investigations that were not substantiated. The record does not support P.H.’s assertion

that the school district was deliberately indifferent to the 1978 report of abuse. In any

event, we conclude that the lone allegation of abuse in 1978 is too remote to amount

to actual notice that P.H. was being sexually abused in the late 1990s. 

P.H. asserts that where the misconduct happened on school grounds, “teachers

may well possess the requisite control necessary to take corrective action to end the

discrimination.” Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1248 (10th

Cir. 1999). Thus, he asserts that the knowledge of the teacher who walked in on a

sexual act is sufficient actual notice to hold the school district liable because that

teacher had a mandatory duty to report the abuse. Again, we take issue with P.H.’s

characterization of the facts. As noted earlier, the record reveals that although P.H.

said a teacher walked in, he also said that both he and Hopkins acted quickly to cover

up the sexual nature of the incident. Thus, it is highly unlikely the other teacher

realized what had occurred. We conclude that there is an insufficient factual basis in

this record (even giving P.H. all of the reasonable inferences) to consider P.H.’s claim

that a teacher who is not the wrongdoer but who has a duty to report might have

sufficient control to take remedial action. In any event, we could not conclude that the

innocent teacher’s knowledge amounts to actual notice of the wrongdoing to the federal

funds recipient. Title IX liability may not be predicated on respondeat superior

liability. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 643 (1999) (“The
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high standard imposed in Gebser sought to eliminate any ‘risk that the recipient would

be liable in damages not for its own official decision but instead for its employees’

independent actions.’” (quoting Gebser, 524 U.S. at 290-91)); Kinman, 171 F.3d 609-

10 (holding that “[i]t would frustrate the purposes of Title IX to permit a damages

remedy against a school district for a teacher’s sexual harassment of a student based

upon principles of respondeat superior or constructive notice, i.e., without actual

notice to a school district official”). 

P.H. argues that the KCSD had sufficient actual knowledge of facts from which

it could draw a reasonable inference that sexual abuse was occurring. Teachers

complained that Hopkins was spending too much time with P.H., who was excessively

absent and tardy, and that it was causing P.H.’s grades to suffer. There were concerns

that Hopkins might be showing favoritism to some students, including P.H. None of

these complaints, however, voiced any suspicions of sexual abuse. When confronted

about the problem of P.H. and certain other students spending too much time with

Hopkins, Hopkins recited legitimate reasons to account for the time owing to the many

school activities he sponsored and supervised involving these students. The Supreme

Court has refused to impose Title IX liability in situations where the school district

failed to react to teacher-student harassment of which it should have known. Davis,

526 U.S. at 642. The Court has clearly rejected this type of a negligence standard,

concluding instead that Title IX liability attaches only where the school district has

actual knowledge and remains deliberately indifferent to acts of teacher-student

harassment. Id. (citing Gebser, 524 U.S. at 290). P.H. has failed to meet this standard

on the record before us. We agree with the district court’s statement that “the record

is devoid of evidence that policymakers with the KCSD had actual knowledge of

Hopkins’ sexual misconduct.” (Appellant’s Add. at 12.) 

III. 

Accordingly, we affirm the judgment of the district court. 
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A true copy.

Attest:

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