*Senior District Judge of the Western District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 90-8725

 

GLORIA GONZALEZ, Individually and as

Next Friends of JESSICA GONZALEZ, and

VICTOR GONZALEZ, Individually and as

Next Friends of JESSICA GONZALEZ,

Plaintiffs-Appellees,

versus

YSLETA INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Western District of Texas

 

( July 20, 1993 )

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HUNTER*, District

Judge.

HIGGINBOTHAM, Circuit Judge:

This appeal raises difficult questions of law in a difficult,

tragic setting. Jessica Gonzalez was sexually molested by Andres

Mares, her first grade teacher, while attending one of the

elementary schools within the Ysleta Independent School District.

After Jessica's parents, Gloria and Victor Gonzalez, discovered

that the YISD Board of Trustees had elected to keep Mares in the

classroom in the face of similar allegations of sexual abuse two

years earlier, they brought this § 1983 action against the school

district in the U.S. District Court for the Western District of
2

Texas. The case went to the jury on the claim that the district

policy regarding sexual abuse was a legal cause of the denial of

Jessica's constitutional right to bodily security. The verdict was

$500,000.

On appeal, YISD contends that the district court should have

instructed the jury that the school district could be held liable

under § 1983 only if the Board's failure to relieve Mares of his

teaching duties manifested a deliberate indifference to the

constitutional rights of students. The school district also

submits that the trial evidence is insufficient to support a

finding of liability under this heightened standard of fault. We

agree and, finding that the second claim requires reversal, we

reverse and render judgment in favor of the school district.

I.

Ysleta Independent School District is the seventh-largest in

Texas, educating over 50,000 students. Prior to 1984, YISD had no

formal policy regarding sexual abuse of students by teachers; the

issue was instead left to the discretion of the individual school

principals. In 1984, YISD adopted a written policy incorporating

provisions of the Texas Family Law Code. In accordance with Texas

law, the policy provided that "any person(s) who suspects that a

child's physical or mental health or welfare has been, or may be,

adversely affected by abuse or neglect . . . must report his or her

suspicions to the Texas Department of Human Resources and/or to a

law enforcement agency." The primary responsibility for contacting

the Department for Human Resources remained with the school
 

1 Despite the apparently mandatory nature of the language,

YISD officials testified at trial that the policy continued to

afford principals discretion to conduct a preliminary investigation

of specific complaints before deciding whether to report the

incident. 

 

2 The school district introduced evidence at trial showing

that five YISD teachers had been accused of sexual misconduct

during this time period. In four cases, a hearing before the Board

of Trustees was proposed. Two of the teachers elected to resign

rather than go before the Board; the two others were dismissed

after the Board determined that the allegations of sexual abuse

were true. In the fifth case, a hearing was not scheduled because

school officials believed they "had no case" against the teacher in

question. Nevertheless, the teacher was relieved of his classroom

duties and transferred to a records warehouse within the district.

3

principal, who was charged with making an oral report "without

delay" and a written report within five days.1 The results of the

operation of this policy were fairly uniform: With one exception,

every complaint of abuse from 1983 to 1987 led to the permanent

removal of the teacher in question from any contact with school

children.2

The exception to this otherwise unbroken pattern of teacher

removal was Andres Mares, the man who molested Jessica Gonzalez.

Mares' penchant for inappropriate conduct with his young female

students first surfaced in 1981. He was at that time a Spanish

teacher at the Ascarate Elementary School. In November 1981,

Nellie Morales, Principal of Ascarate, received a complaint from

the parent of one of his students. The parent informed Principal

Morales that Mares frequently allowed girls to sit on his lap

during class, a practice the parent and Morales considered highly

improper. After consulting Rudy Resendez, Assistant Superintendent

for Elementary Schools, Morales responded to this report with an
4

informal memorandum and an oral reprimand of Mares. She

nonetheless received a second, more serious complaint from the same

parent one month later, alleging that Mares had this time placed

his hand around the waist of her daughter. Even though the child

and Mares both verified the incident, Morales' disciplinary

response was limited to issuing a second oral reprimand and

directing Mares to enter a general "improvement" program. This

sanction in any event apparently had a salutory effect, as

allegations regarding Mares' conduct came to a temporary halt.

In January 1985, however, Principal Morales received an urgent

phone call from Graciela Peña, the mother of one of the female

students in Mares' fifth grade Spanish class. Mrs. Peña insisted

that Morales remove her daughter, Leticia, from Mares' class at

once. When asked the reason for this request, Mrs. Peña, after

some hesitation, informed Morales that Leticia had told her that

Mares had placed his hand on her waist and stuck his tongue in her

ear. Morales again sought direction from Resendez regarding the

course of investigation. Resendez this time enlisted the aid of

Kenneth DeMore who, as the school district's Director of Employee

Relations, usually handled teacher grievances and complaints.

Morales first met with Mares to discuss the incident. Mares

admitted that he had been alone in the classroom with Leticia and

had placed his hand around her waist, but denied any further

improper conduct. Morales and DeMore interviewed Leticia a few

days later on February 4, 1985. Leticia told them that Mares had
 

3 Morales testified that Mares was also to receive an

official reprimand to be prepared by DeMore, the official in charge

of these actions. DeMore, however, stated that both he and Morales

intended to "drop the matter" and that, in any event, the primary

responsibility for issuing reprimands lay with Morales.

5

approached her from behind as she was drawing at the blackboard,

wrapped his arm around her waist, and stuck his tongue in her ear.

This interview marked the end of the investigatory process.

Testimony at trial disclosed the school officials' knowledge of the

1981 allegations against Mares, that Morales, the only person who

questioned both Leticia and Mares, believed that Leticia was

telling the truth, and that the administrators considered the

alleged conduct to be actionable sexual abuse. Nonetheless,

Morales, DeMore, and Resendez neither called the Department of

Human Resources nor took any immediate remedial steps on their own.

Rather, the school officials decided to "drop the matter" and

merely include the incident in the customary evaluation of Mares'

overall classroom performance.3 All three officials stated that

this abrupt conclusion of the investigation came at the request of

Mrs. Peña, who, according to their testimony, made it clear that

she wished to proceed no further.

Leticia Peña's allegations of sexual abuse had no discernible

effect on Mares' standing at Ascarate Elementary School. On

February 15, just two weeks after his alleged assault, Morales gave

Mares what she described as a "good evaluation," rating his

classroom performance just one point short of "exceeds

expectations." After Mares filed a grievance challenging this

evaluation as "unfair," Morales adjusted his score even higher in
6

April. Mares capped an eventful spring later that month by being

elected President of the Ascarate Elementary School PTA.

Mares' election came as a shock to Graciela Peña and her

husband Fernando. Contrary to the account given by Morales, the

Peñas testified that they had neither failed to cooperate nor asked

her to terminate the school district's investigation of Mares'

assault on their daughter. While they may have expressed some

misgivings about the repeated questioning of Leticia, the Peñas

were under the impression that the investigation would continue

until the appropriate resolution was reached. Nor was the

resolution of their complaint subject to doubt. Resendez and

DeMore testified that Morales was the only school official to talk

to Mrs. Peña regarding the incident. Mrs. Peña stated at trial,

however, that Resendez had personally informed her that Mares would

be brought to YISD's central office for a recorded hearing on the

matter and would receive an official reprimand directing him to

seek counseling and avoid any further one-on-one contact with

students. Mares was also to be transferred to another school where

he would be closely monitored to ensure that he complied with these

terms. Mares' election as PTA President signalled to the Peñas

that these remedial steps had not been taken, that, far from being

punished for his transgression, Mares had in fact been "rewarded."

The Peñas were not without means to correct this perceived

breach of trust, for Mares' election to the Ascarate PTA presidency

coincided with Fernando Peña's own election to the YISD Board of

Trustees. Upon taking office in May, Mr. Peña went to Principal
7

Morales' office to determine whether the official reprimand

promised his wife in February had been placed in Mares' file.

After Peña was unable to locate the reprimand in the files at

Ascarate, Morales told him that it had been forwarded to the

central office. Peña then discovered that those files contained

neither the reprimand nor any evidence of the investigation into

Mares' sexual abuse of his daughter. It was at this point that Mr.

Peña learned that, contrary to the assurances given to Mrs. Peña by

Resendez, school officials had, as DeMore admitted at trial, simply

"dropp[ed] the matter."

Mr. Peña then decided to take up the Mares incident directly

with the Board. After documenting the sharp divergences between

the actions promised by school officials and those that were taken,

Peña called an emergency meeting of the Board of Trustees in late

May. With the entire Board as well as Resendez, YISD

Superintendent Jim Hensley, and Deputy Superintendent Jerry Barber

present, Peña submitted documents detailing Mares' assault on

Leticia and the administration's subsequent attempt to "cover up"

the incident. Resendez responded to Peña's strong charges by

offering his own account of the events surrounding the

investigation. Resendez informed the Board that the district had

determined that the allegations lacked substance and that the

investigation had been closed at Mrs. Peña's request. Mr. Peña in

turn asserted that there was no truth to Resendez's statements and,

in particular, vehemently denied that his wife had ever asked

school officials to halt their investigation. Hensley and Barber,
8

who had assumed their roles just a few weeks before in early May,

then intervened, stating that they had not been advised of this

incident involving Mares. It was determined that Barber would

investigate the incident personally and deliver a full report to

the Board.

School district policy provided that employees such as Mares

could be dismissed only after a hearing before the Board of

Trustees. Barber was charged with examining Mr. Peña's allegation

that Morales, DeMore, and Resendez had conspired to "cover up" the

sexual abuse of his daughter and with determining whether there was

enough evidence to commence termination proceedings against Mares.

Barber concluded that the school officials should be reprimanded

for failing to "follow through" in their own investigation of the

incident, but recommended against holding a hearing.

The investigation supporting these findings was cursory at

best. Despite Mr. Peña's charges that Morales, DeMore, and

Resendez had repeatedly "lied" about their handling of Leticia's

case, Barber's inquiry into the incident consisted solely of

discussions with these same school officials. At the Board

meeting, Peña had vigorously disputed Resendez's assertion that he

and his wife had refused to cooperate with school officials.

Barber nevertheless accepted his subordinates' statements that the

Peñas did not wish to involve themselves or their daughter in the

investigation and thus made no attempt to contact them. His belief

that a hearing was not warranted, however, apparently did not rest

on the credibility of Leticia's complaint or her parents' perceived
 

4 For this reason, we are unable to ascertain whether the

Board's formal decision preceded the reprimand issued Mares, dated

May 31, and the grievance filed by Mares in response on June 6. We

do not hold this lacuna in the record to be of any significance,

however, since the grievance was ultimately resolved by the

administration in August 1985, some two months after the Board

chose to transfer Mares rather than remove him from the classroom.

9

unwillingness to allow her to testify against Mares. Barber could

not specifically recall at trial whether he asked Morales whether

she believed the child's allegations and, more importantly, he

indicated that even Leticia's testimony alleging conduct that

"certainly" constituted sexual abuse would not suffice. According

to Barber, there was in his view no "evidence" or "proof" of abuse,

not because Leticia refused to come forward, but because "Mr. Mares

continued to deny it." In sum, without additional evidence, such

as confirmation of additional witnesses, "the testimony of a little

girl" was not enough to hold a hearing in the face of a teacher's

denials. Barber accordingly recommended that disciplinary action

against Mares be limited to a written reprimand directing him to

seek counseling and an order transferring him from Ascarate to Glen

Cove, another elementary school within YISD.

After Superintendent Hensley concurred in Barber's report and

recommendation, it was explained and submitted to the Board of

Trustees for its approval. While the record discloses that the

Board, after discussion of the matter, ultimately voted in favor of

transferring Mares, it is not clear whether its consideration of

this issue was confined to a single evening or extended over

several meetings during late May and early June.4 It is clear,

however, that Fernando Peña, whose testimony provided the only
10

direct evidence of the Board's deliberations, vigorously opposed

the administration's recommendation and demanded that more serious

measures be taken. Peña had castigated the administration during

the first meeting, but he now focused his fire on the Board itself:

"[I]n one of my temper tantrums, I said, 'I wouldn't wish this [the

abuse of a child] on anybody but this school board, because they

need to be in my shoes to see how it feels.'" Despite his

persistence and his sharp criticism of the Board, Peña testified

that he "didn't have the votes" and thus "could never get anybody

to do anything except transfer him." Peña continued to view the

transfer of Mares as plainly "inadequate," but also recognized that

it was the most he could hope to "extract" from his fellow Board

members.

Mares' first year at Glen Cove Elementary School passed

without incident. On March 9, 1987, however, Mares molested

Jessica Gonzalez, one of the students in his first grade Spanish

class. The record showed that the assault occurred after Jessica

asked Mares for permission to get a drink of water. After Jessica

left her seat, Mares followed her over to the water fountain and,

as she leaned over, placed his hand inside her underwear and

touched her vagina. When Jessica reported Mares' actions to her

mother that afternoon, Gloria Gonzalez immediately returned to

school with her daughter and a family friend to speak to Richard

Gore, Glen Cove's Principal.

Gore "did not go into the full details" of the incident at

this brief meeting and thus did not obtain a statement from
 

5 The Gonzalezes elected to proceed against the school

district only; none of the various school employees and

administrators involved were named as defendants.

11

Jessica, but he was able to gain the substance of the allegation

from Mrs. Gonzalez. Gore also learned that the Gonzalezes had

already contacted the police. In accordance with YISD policy, Gore

reported the alleged assault to the Texas Department of Human

Resources and then consulted Resendez. Resendez decided

immediately to suspend Mares with pay pending a hearing before the

Board of Trustees. Notwithstanding the Gonzalezes' refusal to

cooperate in the investigation, the Board held a hearing and voted

to suspend Mares without pay pending the outcome of the criminal

investigation into the incident. After a trial in Texas state

court, at which Leticia Peña and Jessica Gonzalez both testified,

Mares was convicted on charges of indecency with a child. The

Board fired Mares on grounds that he had been convicted of a felony

in August 1987.

The Gonzalezes filed this § 1983 suit in U.S. District Court

for the Western District of Texas in March 1989, contending that

their daughter's injuries were attributable to the school

district's policies and customs regarding sexual abuse.5 At trial,

YISD conceded that Jessica Gonzalez' constitutional right to

personal security had been violated and the only issue for the jury

was the responsibility of the school district.

The district court submitted both "policy" and "custom" as two

distinct theories of liability, with separate interrogatories under

Rule 49 of the Federal Rules of Civil Procedure. The jury declined
 

6 As we indicated above, the school district conceded for

purposes of trial that the Due Process Clause afforded students

protection from sexual abuse by school employees. It also conceded

that Mares' March 9, 1987 assault on Jessica Gonzalez constituted

a violation of this constitutional right. For this reason, we have

no occasion to consider the existence and contours of this asserted

constitutional right, an issue pending before the en banc court.

12

to find that YISD had "maintained a persistent, widespread custom

or practice that authorized, tolerated, or condoned sexual abuse of

students by teachers." The jury did find, however, that the school

district had a "formal policy, statement, ordinance, regulation or

decision that authorized, tolerated, or condoned sexual abuse of

students by teachers." The jury also expressly found that this

policy proximately caused Jessica Gonzalez' injuries and awarded

damages of $500,000. The district court denied YISD's motion for

judgment notwithstanding the verdict and entered judgment in favor

of the Gonzalezes. The school district then filed a timely notice

of appeal.

II.

The school district makes three main points on appeal. It

first contends that the jury's finding that a district "policy"

caused the injury to Jessica Gonzalez is not supported by the

evidence. YISD also maintains that the trial court did not charge

the jury that only those actions by the Board of Trustees could sum

to district policy. Finally, the school district asserts that the

trial court erred in failing to charge the jury that YISD could be

held liable for Jessica Gonzalez' injuries only if the decision by

the Board of Trustees manifested deliberate indifference to the

constitutional rights of schoolchildren.6
See Doe v. Taylor Independent School Dist., 975 F.2d 137 (5th Cir.

1992), reh'g, en banc, granted, 987 F.2d 231 (5th Cir. 1993).

13

The Gonzalezes argue that these issues are not properly before

this court because the school district failed to preserve them for

appeal. Specifically, they assert that YISD's failure to move for

a directed verdict precludes a review of the sufficiency of the

evidence. Second, there was no objection to any failure of the

charge to identify the Board of Trustees as the sole policymaking

entity. Finally, the Gonzalezes maintain that YISD waived the

deliberate indifference instruction as well.

A.

The school district moved for directed verdict both at the

close of the Gonzalezes' case and at the conclusion of all the

evidence. The grounds asserted by YISD in each motion, however,

were not, at least on their face, identical. At the close of the

Gonzalezes' case-in-chief, the school district cited two reasons in

support of its motion:

[T]he plaintiffs' evidence does not support the

proposition that any policymaker displayed any deliberate

indifference to the rights of Jessica Gonzalez in the

exercise of the investigation policy and the policy FFG

dealing with investigations and reporting of complaints

about sexual abuse of children. Also on the grounds that

the plaintiff has not proved that the investigation

policy caused Andres Mares to commit the abuse against

Jessica Gonzalez in 1987.

At the close of all the evidence, the school district renewed its

motion for directed verdict. It repeated the two grounds offered

in the first motion, but then added "that it has not been shown

that there was any policymaker involved with any of the action that
14

could have conceivably caused any injury. No one who made any

decisions under the policy was in fact a policymaker."

The Gonzalezes maintain that the school district's failure to

include this "separate" issue--which they understand to be that

their daughter's injuries were not caused by any actions taken by

policymakers--prohibits it from raising it on appeal. According to

the Gonzalezes, we may not review the evidence supporting a

particular element "unless a motion for directed verdict was made

at both the close of a plaintiffs' case and the close of all the

evidence by the party seeking review." Since Rule 50 requires

movants to "state the specific grounds therefor," the argument

continues, a claim that is raised for the first time at the close

of the evidence is not preserved for appeal. The Gonzalezes thus

conclude that YISD has waived its challenge to the evidence

supporting the jury's finding that Jessica's injuries were caused

by the decisions made by the district's policymakers.

This argument is meritless. In the first instance, we read

the purportedly "new" ground that "there was [no] policymaker

involved with any of the actions that could have conceivably caused

any injury" advanced at the close of the evidence to be fairly

included in the first motion, which requested a directed verdict

"on the grounds that the plaintiff has not proved that the

investigation policy caused Andres Mares to commit the abuse

against Jessica Gonzalez in 1987." As the school district

suggests, and our discussion below discloses, the policymaker's

actions and YISD "policies" are inseparable, for the district
 

7 Thus, the school district's motion for judgment

notwithstanding the verdict listed only two grounds for relief: 

(a) The evidence does not support the proposition that any

policymaker displayed any "deliberate indifference" to the rights

of Jessica Gonzalez by any decision or in the exercise of the

School District's investigation policy; and 

(b) The investigation policy of the School District and decision

made pursuant thereto did not "cause" Andres Mares to sexually

abuse Jessica Gonzalez.

15

"policy" at issue in this case consists of the decisions made by

the policymakers.7

Moreover, appellate review would not be barred even if we were

to view the motion offered at the close of all the evidence as 

raising a new issue. The Gonzalezes maintain that only those

grounds contained in directed verdict motions filed at the close of

the plaintiff's case are preserved for appeal. This interpretation

of Rule 50 is flatly inconsistent with our precedents, which

require only a motion at the close of all the evidence: "According

to Rule 50 (b) of the Federal Rules of Procedure, a party may only

base a motion for judgment notwithstanding the verdict on a ground

that he included in a prior motion for directed verdict at the

close of all the evidence." Hinojosa v. City of Terrell, 834 F.2d

1223, 1227-28 (5th Cir. 1988) (citing Jones v. Benefit Trust Life

Ins. Co., 800 F.2d 1397, 1401 (5th Cir. 1986); Sulmeyer v. Coca

Cola Co., 515 F.2d 835 (5th Cir. 1975), cert. denied, 424 U.S. 934

(1976)); Bohrer v. Hanes Corp., 715 F.2d 213, 217 (5th Cir. 1983),

cert. denied, 104 S.Ct. 1284 (1984); Merwine v. Board of Trustees,

754 F.2d 631, 634 (5th Cir.), cert. denied, 106 S.Ct. 76 (1985).

See also Redd v. City of Phenix, 934 F.2d 1211, 1214 (11th Cir.
 

8 Failure to comply with Rule 50 will not, in certain

circumstances, preclude appellate review. See 9 C. Wright & A.

Miller, Federal Practice and Procedure § 2537, at 596-98 (1971 &

1992 Supp.). The most common exception is not, as the Gonzalezes'

theory might have it, cases in which a motion was made at the close

of the evidence but not at the close of plaintiff's case-in-chief,

but those where a motion made after the plaintiff's case is not

renewed at the close of the evidence. See, e.g., McCann v. Texas

City Refining, Inc., 984 F.2d 667, 671 (5th Cir. 1993); Miller v.

Rowan Companies, Inc., 815 F.2d 1021, 1024 (5th Cir. 1987);

Villanueva v. McInnis, 723 F.2d 414, 416-17 (5th Cir. 1984).

The Gonzalezes have cited only one decision that arguably

provides support for its position that Rule 50 requires a motion

for directed verdict at the close of the plaintiff's case as well

as at the close of all of the evidence. In In re Owners of "Harvey

Oil Center", 788 F.2d 275 (5th Cir. 1986), this court held, without

explanation or citation, that "[b]ecause [defendant] failed to move

for a directed verdict at the close of the plaintiffs' case, its

motion for judgment notwithstanding the verdict on this point had

no proper predicate." Id. at 278. This statement, if given the

broad application proposed by the Gonzalezes, is inconsistent with

what came before, see, e.g., Merwine, 754 F.2d at 634, and what

followed. See, e.g., Hinojosa, 834 F.2d at 1227-28. For this

reason, we believe that this apparent holding of Harvey Oil Center

is best confined to the special circumstances--collateral estoppel

in bankruptcy--present in that case.

16

1991); Riverview Investments, Inc. v. Ottawa Community Imp. Corp.,

899 F.2d 474, 476 (6th Cir.), cert. denied, 111 S.Ct. 151 (1990);

Reeves v. Teuscher, 881 F.2d 1495, 1498 (9th Cir. 1989). We will

review YISD's challenge of the sufficiency of the evidence on the

merits.8

B.

The school district also contends that the district court

erred in failing to identify, prior to submitting the case to the

jury, the actors responsible for determining policy. Specifically,

it maintains that the trial court should have instructed the jury

that only the actions of the Board of Trustees, to the exclusion of
17

administrators and teachers, could constitute "official policy" for

which YISD was responsible.

The school district properly stresses that it is for the

court, not the jury, to determine which officials have final

policymaking authority. After some initial disagreement, compare

St. Louis v. Praprotnik, 108 S.Ct. 915, 924-25 (1988) (plurality

opinion) (this question is a matter of interpretation of state law,

and therefore one for the court) with id. at 934 (Brennan, J.,

concurring in judgment) (jury "must determine where such

policymaking authority actually resides"), the Supreme Court

settled this issue in Jett v. Dallas Independent School District,

109 S.Ct. 2702 (1989):

As with other questions of state law relevant to the

application of federal law, the identification of those

officials whose decisions represent the official policy

of the local governmental unit is itself a legal question

to be resolved by the trial judge before the case is

submitted to the jury . . . . Once those officials who

have the power to make official policy on a particular

issue have been identified, it is for the jury to

determine whether their decisions have caused the

deprivation of rights . . . .

109 S.Ct. at 2723 (emphasis in original). See also Crowder v.

Sinyard, 884 F.2d 804, 830 (5th Cir. 1989), cert. denied, 110 S.Ct.

2617 (1990); Worsham v. City of Pasadena, 881 F.2d 1336, 1344 (5th

Cir. 1989). Texas law provides that the Board of Trustees is

responsible for determining school policy. Tex. Educ. Code Ann.

§ 23.26 (b). See Kinsey v. Salado Indep. School Dist., 950 F.2d
 

9 As the Court in Jett indicated, "the relevant legal

materials" to be consulted in identifying policymakers include not

only "state and local positive law," but also "'"custom or usage"'

having the force of law.'" Jett, 109 S.Ct. at 2733 (quoting

Praprotnik, 108 S.Ct. at 924 n.1). Neither the Gonzalezes nor

YISD, however, has suggested that final policymaking authority

within the school district lies other than where Texas statutory

law provides. 

 

10 YISD contends that the district court's omission of this

instruction allowed the jury to ground its verdict on the

impermissible theory of respondeat superior. We note, however,

that the Gonzalezes were careful to confine their policy argument

to actions of the Board of Trustees. For example, in his closing

argument, plaintiffs' counsel explained the jury's inquiry in these

18

988, 995 (5th Cir.) (en banc), cert. denied, 112 S.Ct. 2275 (1992);

Daniels v. Morris, 746 F.2d 271, 277 (5th Cir. 1984).9

Our review of the jury instructions discloses that the trial

court did not, contrary to the dictates of Jett and Praprotnik,

indicate that only the Board of Trustees had the capacity to make

policy. Rather, the instructions contain several references to

"the Board of Trustees or some person who had final policymaking

authority." We find, however, that the school district has not

preserved this issue for appeal. "No party may assign as error the

giving or the failure to give an instruction unless that party

objects thereto before the jury retires to consider its verdict,

stating distinctly the matter objected to and the grounds of the

objection." Fed.R.Civ.P. 51. The school district not only failed

to lodge an objection to the court's various references to "the

Board of Trustees or some person who had final policymaking

authority," but couched its proposed jury instructions, some of

which were adopted by the court, in identical terms. The school

district has plainly waived this issue.10
terms: "[T]he second question asks you about a decision of the

Ysleta Independent School District. That decision was not made by

[Principal] Nellie Morales, it was not made by the administrators,

it was made by the Board of Trustees of the Ysleta Independent

School District."

Chief Judge Bunton as well as YISD's counsel apparently shared

this understanding of the Gonzalezes' policy claim at trial. The

following exchange took place during the hearing on the parties'

proposed jury instructions:

[Judge Bunton]: As I understand it, they are saying this

policy which the board had actually caused Jessica

Gonzalez to be molested because instead of getting rid of

[Mares] the first time, or instead of putting him in a

warehouse or something, [whatever] they did with somebody

else, instead of doing that, they allowed him to go right

back into the classroom, the same deal with little girls.

That is my understanding of the theory. Is that wrong?

[Counsel]: That may be the theory, but it is the

defendants' contention that under the law, that is not

enough to show a 1983 liability against a school

district.

19

C.

YISD finally contends that the district court committed

reversible error in failing to charge the jury that the school

district could be found liable under § 1983 only if its policy

reflected a deliberate indifference to the constitutional rights of

schoolchildren. We find that the school district adequately

preserved this issue under Rules 49 and 51 by making several

objections to the trial court's omission of the proposed

instruction and interrogatory. The propriety of this omission thus

depends, as an initial matter, on whether school district liability

under § 1983 must be predicated on a showing of deliberate

indifference. It is to this question that we now turn.
20

III.

The Gonzalezes prevailed at trial on the theory that the YISD

Board of Trustees' decision to transfer Mares to their daughter's

school was a proximate cause of Jessica's injury. The school

district contends that such an allegation, even if accepted as

true, cannot support a finding of liability under § 1983. YISD

asserts that an ad hoc, isolated decision, even when made by

policymakers, does not constitute the sort of "policy" upon which

municipal liability may be predicated under Monell v. New York City

Dep't of Social Services, 436 U.S. 658 (1978), especially where, as

here, this act is contrary to the district's own formal policies

for handling the matter in question. Second, and more importantly,

YISD maintains that even if a single, aberrant decision may

establish an actionable "policy," liability cannot attach unless

the decisionmaker was at a minimum deliberately indifferent to its

likely consequences. Because the district court's instructions did

not require the jury to find that the Board of Trustees acted with

the requisite level of fault, YISD asserts that its verdict in

favor of the Gonzalezes cannot stand.

We find the school district's first argument unpersuasive.

Under Monell, local governments are responsible for constitutional

wrongs visited upon citizens pursuant to official "policy."

"Policy" consists of a "policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body's

officers," Monell, 436 U.S. at 690, and encompasses the actions of
21

a municipality's "lawmakers" as well as "those whose edicts or acts

may fairly be said to represent official policy." Id. at 694. 

The term "often refers to formal rules and understandings," but its

meaning is not exhausted by "fixed plans of actions to be followed

under similar circumstances consistently and over time." Pembaur

v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). To the

contrary, it is well established that a municipality may be held

liable for "course[s] of action tailored to a specific situation

and not intended to control decisions in later situations,"

provided that "the decision to adopt that particular course of

action is properly made by that government's authorized

decisionmakers." Id. at 481. See, e.g., id. (county prosecutor

ordered a forcible entry into physician's office); Newport v. Fact

Concerts, Inc., 101 S.Ct. 2748 (1981) (city council cancelled

concert because of disagreement over performance's content); Owen

v. City of Independence, 445 U.S. 622 (1980) (city council passed

a resolution firing police chief without a pretermination hearing);

Hill v. City of Pontotoc, No. 92-7337 (5th Cir. 1993) (board of

alderman fired fire chief without due process); Boddie v. City of

Columbus, 989 F.2d 745 (5th Cir. 1993) (fire chief terminated

employee because of union activities). Finally, the existence of

a well-established, officially-adopted policy will not insulate the

municipality from liability where the policymaker herself departs

from these formal rules. See, e.g., Praprotnik, 108 S.Ct. at 928.

The Board of Trustees' conscious decision to transfer Mares in

response the Peñas' allegations rather than remove him from the
22

classroom or report the incident to the Department of Human

Resources--the response its past practice might have portended and

its own sexual abuse policy would seem to have required--plainly

constitutes a "policy" attributable to the school district. Courts

often face difficult questions regarding the location, see, e.g.,

Praprotnik, or scope, see, e.g., Auriemma v. Rice, 957 F.2d 397,

399-401 (7th Cir. 1992), of final policymaking authority, but "[n]o

one has ever doubted . . . that a municipality may be liable under

§ 1983 for a single decision by its properly constituted

legislative body." Pembaur, 475 U.S. at 480. The Board's decision

to transfer Mares represents a final action by the entity charged

with making and executing policy within the school district; it is

indistinguishable in this respect from the actions taken by the

city councils in Newport and Owen and the county prosecutor in

Pembaur.

The "policy" in this case differs from those at issue in

Monell and other prior cases in another, significant way, however.

In those cases, the policymaker's decision directly ordered the

action found to be unconstitutional. Monell, for example, involved

a written rule which the Court interpreted to require pregnant

employees to take unpaid leaves of absence before they were

medically necessary; Newport, a decision by the city council to

cancel a concert on the basis of content; Pembaur, a decision by

the county prosecutor forcibly to enter an office. The "policy" in

each instance not only led to a constitutional violation, but

compelled it. In this case, however, the Gonzalezes do not
 

11 The distinction between constitutional and

unconstitutional policies is frequently a matter of semantics in

cases in which a single decision is challenged. This is not true

here, however, because the school district conceded the

constitutional violation. 

23

maintain that the Board ordered Mares to assault their daughter or

that it intended this result. The Board's "policy" may have

produced or caused the constitutional violation but, unlike the

policymaker's actions in Monell and Pembaur, it is not itself

unconstitutional. Both parties recognize this factual

dissimilarity, but differ sharply as to its legal relevance.11

The Gonzalezes argue, as Justice Brennan did in City of

Oklahoma City v. Tuttle, 105 S.Ct. 2427 (1985), that any

"distinction between policies that are themselves unconstitutional

and those that cause constitutional violations" is "metaphysical":

"If a municipality takes actions--whether they be of the type

alleged in Monell, Owen, or this case--that cause the deprivation

of a citizen's constitutional rights, § 1983 is available as a

remedy." Id. at 2441 n.8 (Brennan, J., concurring). "Monell," the

Gonzalezes, again following Justice Brennan, contend, "is a case

about responsibility." Pembaur, 106 S.Ct. at 1297. The

distinction between the acts of the municipality and the acts of

its employees is preserved--and respondeat superior avoided--

through an exacting application of Monell's "'official policy'

requirement," id. at 1298, which provides that "municipality

liability under § 1983 attaches where--and only where--a deliberate

choice to follow a course of action is made from among various

alternatives by the official or officials responsible for
24

establishing final policy with respect to the subject matter in

question." Id. at 1300. Where the direct action of the

policymaker, rather than the conduct of subordinates, is involved,

the municipality has itself acted, and the sole question is one of

causation. This final issue, while not to be gauged by the

standards of ordinary tort law, see Martinez v. California, 444

U.S. 277, 285 (1980), does not warrant an approach that would

attach significance to the facial validity of the challenged

policy.

The school district maintains that the concept underlying

Monell is not "responsibility," but "fault," for, contrary to the

Gonzalezes' reading, Monell "provides a fault-based analysis for

imposing municipal liability." Tuttle, 105 S.Ct. at 2433

(plurality). YISD agrees that Monell's emphasis on "policy" serves

to foreclose liability on the impermissible basis of respondeat

superior, but urges that this "requirement was intended to prevent

the imposition of municipal liability," not in cases in which

policymakers were not responsible, but "under circumstances where

no wrong could be ascribed to municipal decisionmakers." Id. at

2435 (emphasis added). Put another way, § 1983 permits recovery

only "when it can be fairly said that the city itself is the

wrongdoer." Collins v. City of Harker Heights, 112 S.Ct. 1061,

1067 (1992).

According to the school district, "establish[ing] the

existence of the policy," at least as the Gonzalezes and Justice

Brennan understand that term, is necessary but not sufficient under
25

§ 1983; plaintiffs must also introduce "evidence showing that the

city was at fault for establishing the policy." City of

Springfield v. Kibbe, 107 S.Ct. 1114, 1121 (1987) (O'Connor, J.,

dissenting). Predicating municipal liability solely on the

presence of "a deliberate choice to follow a course of action" on

the part of policymakers would render Monell a "dead letter," since

the sheer number of such decisions required by governance ensures

that "if one retreats far enough from a constitutional violation

some municipal 'policy' can be identified behind almost any such

harm inflicted by a municipal official." Tuttle, 105 S.Ct. at

2436. Where the challenged policy is unconstitutional on its face,

as those in Monell, Owen, Newport, and Pembaur were, no additional

"evidence [is] needed other than a statement of the policy by the

[policymaker], and its exercise," id., for it is plain that the

constitutional violation flows directly from the policymaker's

deliberate choice. On the other hand, where, as here, a policy in

some sense causes, but does not compel, a constitutional violation,

plaintiffs must establish that the particular harm-producing

deficiency "resulted from conscious choice," that is, they must

supply "proof that the policymakers deliberately chose [measures]

which would prove inadequate." Id. Unless the policy itself is

unconstitutional, YISD concludes, § 1983 provides a remedy only if

it was enacted with deliberate indifference to constitutional

rights.

The school district locates this bright-line rule in City of

Canton v. Harris, 109 S.Ct. 1197 (1989). In Canton, a unanimous
26

Court held that a facially valid municipal policy may give rise to

§ 1983 liability if, as a result of inadequate training, it is

unconstitutionally applied by city employees. Id. at 1204. In

keeping with Monell's proscription of respondeat superior as a

theory of recovery, the Court limited liability to those cases

where the city's failure to train amounts to deliberate

indifference to the constitutional rights of its citizens. Id. at

1204-05. It is only when such an omission "evidences a 'deliberate

indifference' to the rights of its inhabitants can such a

shortcoming be properly thought of as a city 'policy or custom'

that is actionable under § 1983," which, the Court reminded,

consists of "'a deliberate choice to follow a course of action . .

. made from among various alternatives' by city policy makers."

Id. at 1205 (quoting Pembaur, 106 S.Ct. at 1300) (ellipses added));

see also id. at 1208 (O'Connor, J., concurring) ("Where a § 1983

plaintiff can establish that the facts available to city

policymakers put them on actual or constructive notice that the

particular omission is substantially certain to result in the

violation of the constitutional rights of their citizens, the

dictates of Monell are satisfied"). Because the Board of Trustees'

decision regarding Mares was not itself unconstitutional, YISD

concludes, the Gonzalezes may prevail under Canton only if the

Board was deliberately indifferent to the welfare of students in

failing to remove him from the classroom.

The Gonzalezes do not, at least at the outset, challenge

Canton's "deliberate indifference" requirement, but question the
27

rule's application to claims, such as theirs, where a "policy" has

been established. Such claims rest on the actions of the

policymaker, and therefore differ materially from "failure to

train" claims, which, like those alleging an unconstitutional

"custom," seek to hold the city liable for the policymaker's

omissions. In custom cases, as in "failure to train" cases,

plaintiffs contend that improper conduct among employees should be

attributed to the city "even though such a custom has not received

formal approval through the body's official decisionmaking

channels." Monell, 436 U.S. at 691. Noting that the Court in

Canton appeared to equate these two types of claims by suggesting

that Harris' "custom" claim was "little more than a restatement of

her 'failure-to-train as policy' claim," 109 S.Ct. at 1203 n.5, the

Gonzalezes point out that the inquiry prescribed by the Court in

Canton closely resembles the standard applied in custom cases.

Compare 109 S.Ct. at 1205 & n.10 ("need for further training [is]

plainly obvious to the city policy makers" but they fail to act)

and id. at 1208 (O'Connor. J., concurring) (policymakers fail to

act despite having "actual or constructive notice that the

particular omission is substantially certain to result in the

violation of the constitutional rights of their citizens") with

Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.) (municipalities

may be held liable on the basis of custom if policymakers had

"actual or constructive knowledge of [city employees' misconduct]

yet did nothing to end the practice"), cert. denied, 110 S.Ct. 75

(1989). Through the use of a familiar tort law construct,
28

plaintiffs in each case ask courts to infer act from omission,

assent from silence, by showing that policymakers were aware of

abusive or deficient practices and yet did nothing to curb them.

The "deliberate indifferent" requirement permits courts to separate

omissions that "amount to an intentional choice" from those that

are merely "unintentionally negligent oversight[s]." Rhyne v.

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

Proof of deliberate indifference is unnecessary here, the

Gonzalezes assert, because we need not rely on inferences to

establish the existence of an intentional choice for which the

school district should be held responsible. The YISD Board of

Trustees did make a "deliberate choice . . . from among various

alternatives." Pembaur, 106 S.Ct. at 1300. It could have

suspended Mares, ordered further investigation, scheduled a

hearing, issued a more severe reprimand, or even provided for

closer monitoring of his classroom. Instead, the Board chose to

transfer him to a different elementary school within the district.

To require an additional showing of deliberate indifference would

collapse the dichotomy between act and omission underlying "policy"

and "custom" as distinct theories of recovery and impermissibly

deprive the school board's decision of legal significance.

The Gonzalezes' contention that the relevant distinction under

§ 1983 lies between the policymaker's acts and omissions, not

unconstitutional and constitutional policies, is not wholly

unpersuasive. Their argument is, however, foreclosed by Canton,

where the Court made plain that municipal liability must be
29

predicated upon a showing of "fault," not merely "responsibility."

While a claim cast in terms of a "failure to train" suggests an

attempt to hold the city liable for its omissions, the Court

recognized that Harris' suit could also be characterized as a

challenge to the city's existing training program; her claim that

"the city 'could have done' [something] to prevent the unfortunate

incident," Canton, 109 S.Ct. at 1206, was at bottom an assertion

that the city should have provided "more or different training."

Id. at 1205. Since the inadequate training program had been

officially adopted by the city's policymakers, the Court indicated

that it could be regarded as a "policy for which the city is

responsible." Id. "That much may be true," the Court stated, but

proof of an inadequate policy, without more, is insufficient to

meet the threshold requirements of § 1983. Id. In order to

establish an actionable "policy" under Monell, plaintiffs must

demonstrate that the particular inadequacies which led to the

constitutional violation, not simply the program itself, were the

products of deliberate choice. In the absence of a facially

unconstitutional policy, that is, "a policy of not taking

reasonable steps to train its employees," id., plaintiffs may

establish the requisite fault by proving that "the need for more or

different training is so obvious, and the inadequacy so likely to

result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have been

deliberately indifferent to the need." Id. It is only with this

additional showing that a "'policy of inaction'" becomes an
30

actionable "decision by the city itself to violate the

Constitution." Id. at 1208 (O'Connor, J., concurring).

The circuits have uniformly interpreted Canton's "deliberate

indifference" requirement, announced in the context of a "failure

to train" claim, to apply to all cases involving facially

constitutional policies. As the Ninth Circuit, for example,

recently held: 

The existence of a policy, without more, is insufficient

to trigger local government liability under section 1983.

Under City of Canton, before a local government entity

may be held liable for failing to act to preserve a

constitutional right, plaintiff must demonstrate that the

official policy "evidences a 'deliberate indifference'"

to his constitutional rights. 

Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (quoting

Canton, 109 S.Ct. at 1205) (citations omitted). See Rhyne v.

Henderson County, 973 F.2d 386, 392 (5th Cir. 1992) ("[the issue

is] whether Henderson County acted with deliberate indifference in

adopting policies regarding care of inmates known to be suicidal");

Benavides v. County of Wilson, 955 F.2d 968, 974 (5th Cir.) (the

evidence "does not indicate that [the sheriff] was deliberately

indifferent in hiring or retaining . . . jailers and deputies"),

cert. denied, 110 S.Ct. 2617 (1990); Crowder v. Sinyard, 884 F.2d

804, 830-31 (5th Cir. 1989) ("There is nothing in the record before

us that indicates that any policies of the City of Texarkana

reflected deliberate indifference to any constitutional concerns or

were anything other than generic policies favoring effective law

enforcement"), cert. denied, 110 S.Ct. 2617 (1990); Wassum v. City

of Bellaire, 861 F.2d 453, 456 (5th Cir. 1988) ("a plaintiff must
31

demonstrate that those hiring practices that led it to employ the

police officer constituted gross negligence amounting to conscious

indifference to the welfare of the public"); Graham v. Sauk

Prairie Police Commission, 915 F.2d 1085, 1100-01 (7th Cir. 1990)

("Clearly these procedures do not directly violate any

constitutional guarantees. Like the plaintiff in Canton, Graham

bases her § 1983 municipal liability claim solely on the

defendants' allegedly inadequate acts as 'policy.' Accordingly, the

standard of fault and the principles which applied to the claim of

inadequate training in Canton must guide our determination of

municipal liability in this case"); Ware v. Unified School Dist.,

902 F.2d 815, 819 (10th Cir. 1990) ("we remain convinced that a

causal connection between the unconstitutional act and the

authorized decisionmakers may be established when the governing

body has exercised its decisionmaking authority with deliberate

indifference to the constitutional rights of those affected by its

decisions"); D.T. by M.T. v. Independent School Dist., 894 F.2d

1176, 1193 (10th Cir.) ("a consciously adopted 'policy' (here the

established procedure of the School District in the investigation,

hiring and supervision of teachers) must, in a causal sense,

reflect deliberate indifference to the constitutional rights of

[students]"), cert. denied, 111 S.Ct. 213 (1990); Dorman v.

District of Columbia, 888 F.2d 159, 165 (D.C.Cir. 1989) ("there is

no evidence of a conscious choice or a policy of deliberate

indifference") (emphasis in original); Stoneking v. Bradford Area

School Dist., 882 F.2d 720, 725 (3d Cir. 1989) ("As the Supreme
32

Court recently reconfirmed in [Canton], a municipality may be held

under section 1983 where its policymakers made 'a deliberate choice

to follow a course of action . . . from among various

alternatives,' and the policy chosen 'reflects deliberate

indifference to the constitutional rights of [the city's]

inhabitants'" (quoting Canton, 109 S.Ct. at 1205-06), cert. denied,

110 S.Ct. 840 (1990).

The Gonzalezes' "policy" claim is indistinguishable from those

advanced in these previous cases. They do not argue that the

Board's decision itself violated the Constitution by ordering or

compelling Mares to assault their daughter. Rather, they maintain,

as Fernando Peña testified, that its choice to transfer Mares in

response to allegations of sexual abuse was "inadequate." As such,

their claim is controlled by Canton and our many precedents that

have required a showing of deliberate indifference before holding

a city liable for a policymaker's mistaken personnel decisions.

See, e.g., Benavides, 955 F.2d at 972-75.

The Gonzalezes argue that this broad reading of Canton brings

the decision into conflict with several of the Court's prior

holdings and therefore cannot be correct. Specifically, they

contend that conditioning recovery upon proof that policymakers

acted with deliberate indifference to constitutional rights

improperly imports a state of mind requirement into § 1983, see

Daniels v. Williams, 106 S.Ct. 662, 664 (1986); Parratt v. Taylor,

451 U.S. 527, 534 (1981); Monroe v. Pape, 365 U.S. 167, 187 (1961),

and has the effect of extending good-faith immunity to
33

municipalities, a step expressly rejected by the Court in Owen v.

City of Independence, 445 U.S. 622 (1980). This argument gives us

pause, but does not provide grounds for this court to adopt the

Gonzalezes' approach.

The Supreme Court has consistently held that § 1983 "contains

no state-of-mind requirement independent of that necessary to state

a violation of the underlying constitutional right." Daniels, 106

S.Ct. at 664; Parratt, 451 U.S. at 534 ("Nothing in the language of

§ 1983 or its legislative history limits the statute solely to

intentional deprivations of constitutional rights . . . . Section

1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never

been found by this Court to contain a state-of-mind requirement").

In Canton, however, the Court held that plaintiffs bringing

"failure to train" claims must prove that the city's policymakers'

failure to adopt additional precautions reflected deliberate

indifference to the rights of citizens, a standard of fault which,

the Court made plain, remained separate from, and independent of,

the state-of-mind necessary to establish a constitutional

violation. Canton, 109 S.Ct. at 1204 n.8 ("The 'deliberate

indifference' standard we adopt for § 1983 'failure to train'

claims does not turn upon the degree of fault (if any) that a

plaintiff must show to make out an underlying claim of a

constitutional violation"); accord Collins v. City of Harker

Heights, 112 S.Ct. 1061, 1068 n.7. The Gonzalezes contend that the

holdings in Daniels and Parratt may be preserved only if Canton's

rationale does not reach inadequate, but constitutional policies
34

and decisions, and is instead confined to cases in which

policymakers have truly failed to act. Otherwise, they conclude,

the Court's decision represents an adoption, sub silentio, of a

view previously urged only in dissent. See Procunier v. Navarette,

434 U.S. 555, 568 (1978) (Burger, C.J., dissenting) ("Neither the

language nor the legislative history of § 1983 indicates that

Congress intended to provide remedies for negligent acts. I would

hold that one who does not intend to cause and does not exhibit

deliberate indifference to the risk of causing the harm that gives

rise to a constitutional claim is not liable for damages under

§ 1983").

As stated above, see supra at 29-32, we do not believe that

Canton is capable of bearing this reading. In order for municipal

liability to attach, plaintiffs must offer evidence of not simply

a decision, but a "decision by the city itself to violate the

Constitution." Id. at 1208 (O'Connor, J., concurring).

Inadequate, but constitutional policies and decisions rise to the

same, actionable plane as the unconstitutional policies considered

in Monell, Owen, Newport, and Pembaur only upon a showing that they

were enacted or made with deliberate indifference to their possible

unconstitutional consequences. Since "[f]acially unconstitutional

policies that mandate unconstitutional conduct evince an intent

that such violations occur," Kritchevsky, Making Sense of State of

Mind: Determining Responsibility in Section 1983 Municipality

Liability Litigation, 60 Geo. Wash. L. Rev. 417, 473 n.292 (1992),

Monell's policy requirement may be restated wholly in terms of
35

fault: "A municipality only can be held liable for a constitutional

violation caused by a municipal policy that manifests at least

deliberate indifference to constitutional rights." Id. at 473.

See, e.g., Medina v. Denver, 960 F.2d 1493, 1500 (10th Cir. 1992);

("negligence and gross negligence do not give rise to section 1983

liability"); Stokes v. Bullins, 844 F.2d 269, 273 (5th Cir. 1988)

("One may read the tea leaves and conclude that mere negligence

will not ultimately be a sufficient basis for § 1983 municipal

liability"); cf. Buffington v. Baltimore County, 913 F.2d 113, 122

n.2 (4th Cir. 1990) (The standard of fault announced in Canton

"does not of course displace the firmly established rule that

§ 1983 contains no independent state-of-mind requirement governing

the liability of the immediate wrongdoer"), cert. denied, 111 S.Ct.

1106 (1991). See also Bator, et al., Hart & Wechsler's The Federal

Courts and the Federal System 1256-57 (3d ed. 1988); Brown,

Correlating Municipal Liability and Official Liability under

Section 1983, 1989 U. Ill. L. Rev. 625, 654; Mead, 42 U.S.C. § 1983

Liability: The Monell Sketch Becomes a Distorted Picture, 65 N.C.L.

Rev. 517, 545 (1987); Nahmod, Section 1983 Discourse: The Move from

Constitution to Tort, 77 Geo.L.J. 1719, 1729 n.71 (1989). Daniels

and Parratt notwithstanding, what the Gonzalezes would describe as

Canton's deliberate indifference "exception" has apparently become

the rule, at least for these commentators and courts.

The Gonzalezes maintain that this "rule," under which

municipalities may be held liable only if their policies reflect a

deliberate indifference to constitutional rights, also contravenes
36

the Court's decision in Owen v. City of Independence, 445 U.S. 622

(1980). In Owen, the Court found that the history and policy

considerations underlying § 1983 did not support an extension of

the good-faith immunity enjoyed by public officials in their

individual capacities to municipalities. See id. at 657. While

qualified immunity shields a city's officers from damages caused by

their transgression of rights not "clearly established" at the time

of their conduct, see, e.g., Anderson v. Creighton, 107 S.Ct. 3034

(1987); Harlow v. Fitzgerald, 102 S.Ct. 2727 (1982), the city

itself is "strictly liable" for all constitutional violations

committed pursuant to its policies. See, e.g., Pembaur v. City of

Cincinatti, 106 S.Ct. 1292, 1297 n.5, 1301-02 (1986) (applying

retroactively Steagald v. United States, 101 S.Ct. 1642 (1981)).

Because policymakers cannot be said to be deliberately indifferent

to constitutional rights that were not clearly established at the

time they acted, the Gonzalezes assert that applying Canton's

heightened standard of fault in "policy" cases affords

municipalities the same immunity withheld in Owen.

It is not clear that an embrace of Canton necessarily implies

a rejection of Owen. There are some indications that Canton

requires a showing of deliberate indifference to citizens'

constitutional rights, not merely the harm inflicted by city

employees that gives rise to constitutional claims. See Canton,

109 S.Ct. at 1205 (municipal liability may attach when "the need

for more or different training is so obvious, and the inadequacy so

likely to result in the violation of constitutional rights, that
37

the policymakers of the city can reasonably be said to have been

deliberately indifferent to the need"); id. at 1208 (O'Connor, J.,

concurring) ("Without some form of notice to the city, and the

opportunity to conform to constitutional dictates both what it does

and what it chooses not to do, the failure to train theory of

liability could completely engulf Monell, imposing liability

without regard to fault"). It therefore may well be, as several

district courts have held, that "to be 'deliberately indifferent'

to rights requires that those rights be clearly established."

Watson v. Sexton, 755 F.Supp. 583, 588 (S.D.N.Y. 1991). Williamson

v. City of Virginia Beach, 786 F.Supp. 1238, 1264-65 (E.D.Va 1992)

("[Even if] the constitutional rights alleged by plaintiff did

exist, the conclusion that they were not clearly established

negates the proposition that the city acted with deliberate

indifference"), aff'd, 1993 U.S.App. Lexis 8421 (4th Cir. 1993);

Zwalesky v. Manistee County, 749 F.Supp. 815, 820 (W.D.Mich. 1990).

Because the facts of this case do not directly implicate these

questions, however, we need not resolve them. The arguments

advanced by the Gonzalezes' most able counsel have taken us far

afield and led us to treat the ultimate contours of a jurisprudence

that remains unsettled. Needless to say, it is for the Court

itself to address any perceived tension between Canton and its

earlier decisions, see, e.g., Rodriguez de Quijas v. Shearson/

American Exp., Inc., 109 S.Ct. 1917 (1989), and nothing we have

said should be taken as an indication that the principles

established in these prior cases retain anything less than their
38

full force. We do hold, however, that YISD may be held liable in

this case only if the Board of Trustees' decision to transfer Mares

to Jessica's elementary school manifested a deliberate indifference

to the welfare of school children.

IV.

The trial court did not instruct the jury in accordance with

this standard. Rather than requiring the Gonzalezes to prove that

the Board of Trustees' decision to keep Mares in the classroom

manifested a deliberate indifference to students' constitutional

right to bodily integrity, the district court advised the jury that

YISD could be held liable if its policies "authorized, tolerated,

or condoned sexual abuse of students by teachers." Because these

terms if anything provide for a higher standard of fault, we do not

regard the trial court's omission of the deliberate indifference

instruction as reversible error. We hold, however, that the trial

evidence is not sufficient to sustain the jury's verdict under

either standard and therefore reverse and render judgment in favor

of the school district.

A.

The district court submitted the following interrogatories to

the jury:

1. Do you find from a preponderance of the evidence

that the Ysleta Independent School District, between

January of 1985 and March of 1987, maintained a

persistent, widespread custom or practice that

authorized, tolerated, or condoned sexual abuse of

students by teachers?

2. Do you find from a preponderance of the evidence

that the Ysleta Independent School District had, between

January of 1985 and March of 1987, any formal policy,
 

12 Chief Judge Bunton's jury instructions on the issues of

"policy" and "custom" closely tracked the formulations contained in

the respective interrogatories. He did elaborate, however, on the

concept of proximate cause: 

The term "proximate cause" means a cause which, in a

natural and continuous sequence, produces an event, and

without which cause such event would not have occurred.

In order to be a proximate cause the act or omission

complained of must be such that a person using ordinary

care would have foreseen the event, or some similar

event, might reasonably result therefrom.

 

13 The district court also should have instructed the jury

that the school district could be held liable of if its policies

were "the 'moving force [behind] the constitutional violation.'"

Canton, 109 S.Ct. at 1205 (citing Polk County v. Dodson, 102 S.Ct.

445, 454 (1981); Monell, 436 U.S. at 694). YISD did not object to

the trial court's omission, however; it is consequently not before

us on appeal.

39

statement, ordinance, regulation of decision that

authorized, tolerated or condoned sexual abuse of

students by teachers?

3. Do you find from a preponderance of the evidence

that either the persistent, widespread custom or

practice, or the formal policy, statement, ordinance,

regulation or decision of the defendant Ysleta

Independent School District (whichever you found in

Questions 1 and 2 existed between January of 1985 and

March of 1987) proximately caused injury to Jessica

Gonzalez?12

The jury answered both the second and third issue in the

affirmative and thus returned a verdict in favor of the Gonzalezes.

YISD contends that the district court committed reversible

error in refusing to advise the jury that liability could attach

only if the Board's decision to keep Mares in the classroom

reflected deliberate indifference to the rights of school children.

We do not agree. In light of our discussion in Part III, the

district court clearly should have included a deliberate

indifference instruction.13 The court did, however, inform the jury
40

that the Gonzalezes could recover only if the Board's policies or

decisions "authorized, tolerated or condoned sexual abuse of

students by teachers." Decisions that authorize, tolerate, or

condone, like those reflecting deliberate indifference, are made

with knowledge of the objectionable conduct; they all preclude a

finding of liability on the basis of negligence, that is, on what

the Board should have known. While courts must remain sensitive to

the subtle distinctions among different degrees of "scienter," we

cannot ignore the widespread, synonymous use of these terms in

§ 1983 cases. See, e.g., Canton, 109 S.Ct. at 1209 (O'Connor, J.,

concurring) ("I think municipal liability for failure to train may

be proper where it can be shown that policymakers were aware of,

and acquiesced in, a pattern of constitutional violations . . . .

The lower courts that have applied the 'deliberate indifference'

standard we adopt today have required a showing of a pattern of

violations from which a kind of 'tacit authorization' by city

policymakers can be inferred") (citing, inter alia, Languirand v.

Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983)); Doe v. Taylor

Independent School Dist., 975 F.2d 137, 149 (5th Cir. 1992) (jury

could find that supervisors' nonfeasance "was not merely negligent,

but grossly negligent, reckless, or deliberately (consciously)

indifferent; that [their] toleration of Stroud's alleged misconduct

for so long communicated their tacit condonation of his mal

feasance"), reh'g, en banc, granted, 987 F.2d 231 (5th Cir. 1993);

Hicks v. Frey, 1993 U.S. App. Lexis 11011, at *18-19 (6th Cir.

1993) ("The jury could have believed that Locke displayed
41

deliberate indifference to Hick's serious medical needs both by

failing to address them herself and by implicitly authorizing,

approving, or knowingly acquiescing in the unconstitutional conduct

of others"); Angarita v. St. Louis County, 981 F.2d 1537, 1545

(8th Cir. 1992) (policymaker must have "known about and facilitated

the conduct, approved it, condoned it, or turned a blind eye for

fear of what others might see. In other words, he must have acted

either knowingly or with deliberate, reckless indifference")

(citation omitted); Jane Doe "A" v. Special School District, 901

F.2d 642, 646 (8th Cir. 1990) (plaintiff seeking to hold a

municipality liable for inaction must prove "[d]eliberate

indifference to or tacit authorization of such conduct by the

governmental entity's policymaking officials after notice to the

officials of that misconduct"); Lipsett v. University of Puerto

Rico, 864 F.2d 881, 902 (1st Cir. 1988) (supervisors may be held

liable if their failure to act "could be characterized as

supervisory encouragement, condonation, acquiescence or gross

negligence amounting to deliberate indifference") (citation and

quotation marks omitted); Jones v. City of Chicago, 856 F.2d 985,

992-93 (7th Cir. 1988) (defendants "must know about the conduct and

facilitate it, approve it, condone it, or turn a blind eye for fear

of what they might see. They must in other words act either

knowingly or with deliberate, reckless indifference"); Moore v.

Winebrenner, 927 F.2d 1312, 1315 (4th Cir.) ("conduct may be

characterized as 'deliberate indifference' or as 'tacit

authorization'"), cert. denied, 112 S.Ct. 97 (1991); Clipper v.
42

Takoma Park, 876 F.2d 17, 20 (4th Cir. 1989) (city's omissions

"actionable only if they constitute 'tacit authorization' or

deliberate indifference to constitutional injuries").

Moreover, the school district itself appeared to equate the

contended-for deliberate indifference instruction with the district

court's formulation in requesting that the jury be asked to

determine "whether there was conscious indifference to the rights

of students to be free from sexual abuse that amounted to

condonation, toleration, or encouragement of sexual abuse by

teachers." (emphasis added). Because both of these instructions

require the jury to find that the policymaker acted with knowledge

of the likely consequences, we do not believe that the district

court's omission would warrant a new trial. Proper instruction

should of course refer to "deliberate indifference," but we are not

prepared to hold on the facts of this case that Judge Bunton's

charge constituted reversible error.

B.

The issue of jury instructions, however, is largely irrelevant

in light of our review of the evidence, for we do not believe that

the record supports a finding that the Board acted with deliberate

indifference in failing to relieve Mares of his teaching duties.

It is of course true that Mares would not have had the opportunity

to assault Jessica had the Board removed him from the classroom

after it learned of Leticia Peña's allegation in 1985. We also

agree, and YISD appears to concede, that the Board's choice to

transfer Mares rather than impose a more severe sanction was not
43

only negligent but also inconsistent with the district's handling

of other cases of suspected sexual abuse. But these facts, by

themselves, are not sufficient to establish that the Board was

deliberately indifferent to the welfare of students in making its

decision.

The Board did not ignore or turn a blind eye to the Peñas'

complaint when it came to its attention. Instead, it immediately

asked the district's superintendent and his deputy personally to

investigate the incident and prepare a recommendation. The report

Board members received found that the evidence was not strong

enough to justify termination proceedings, but recommended that

Mares be issued an official reprimand and a transfer out of

Ascarate Elementary School. The Board's adoption of these

precautions reflect not indifference or apathy, but concern.

Rhyne, 973 F.2d at 393.

Nor can we understand how the inadequacy of these disciplinary

measures could have been "obvious," see Canton, 109 S.Ct. at 1205,

to the Board at the time of its decision. Board members were aware

that two accusations, separated by four years, had been lodged

against Mares. These allegations, while certainly a cause for

concern, did not compare in gravity to Mares' conduct in 1987, and

thus provided no grounds for suspecting that he might be capable of

such a vile act. Moreover, the deputy superintendent, on whose

factual findings the Board was surely entitled to rely, stated that

he had virtually no proof that Mares touched Leticia Peña in the

manner she initially reported. To hold that these facts support a
44

finding that the Board was "deliberately indifferent" would drain

the term of its meaning. While sympathy for Jessica and her

parents and anger toward those whose acts contributed to this

tragic occurrence are understandable, our precedents do not permit

us to hold the school district responsible for this harm.

V.

For the foregoing reasons, we REVERSE and RENDER judgment in

favor of the Ysleta Independent School District.