2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-10-2005

Bostic v. Smyrna Sch Dist

Precedential or Non-Precedential: Precedential

Docket No. 04-1463

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Bostic v. Smyrna Sch Dist" (2005). 2005 Decisions. Paper 619.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/619
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 04-1463

____________

JAMES BOSTIC; CHERIE BOSTIC, as next

friends of minor plaintiff Jennifer Bostic;

JENNIFER BOSTIC,

 Appellants 

v.

SMYRNA SCHOOL DISTRICT; SMYRNA

BOARD OF EDUCATION; SMYRNA HIGH

SCHOOL; CLARENCE E. LLOYD, in his 

individual and official capacities; ANTHONY 

E. SOLIGO, in his individual and official 

capacities; JOHN SMITH, in his individual

and official capacities; EVELYN SMITH

 

____________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 01-0261)

District Judge: The Honorable Kent A. Jordan

 
 The Honorable A. Wallace Tashima, Senior United States *

Circuit Judge for the Ninth Circuit, sitting by designation.

2

Argued June 9, 2005

BEFORE: AMBRO, VAN ANTWERPEN and TASHIMA ,

*

Circuit Judges, 

(Filed August 10, 2005)

Richard R. Wier, Jr. (Argued)

Daniel W. Scialpi

Richard R. Wier, Jr., P.A.

1220 Market St. Suite 600

Wilmington, DE 19801

Counsel for Appellants

Jonathan L. Parshall (Argued)

Murphy Spadaro & Landon

1011 Centre Road Suite 210

Wilmington, DE 19805

Counsel for Appellees

 

OPINION OF THE COURT

 

TASHIMA, Circuit Judge

James, Cherie, and Jennifer Bostic (collectively,
 For ease of reference, we will refer only to Jennifer as 1

Bostic.

3

“Appellants”) appeal a jury verdict in favor of Smyrna School 1

District, the Smyrna Board of Education, Smyrna High School

(collectively, “Appellees” or “Smyrna Defendants”), and

various individual defendants. Bostic filed suit against

Defendants under Title IX of the Education Amendments of

1972, as amended, 20 U.S.C. § 1681, et. seq., based upon their

alleged deliberate indifference to a sexual relationship between

Bostic and her track coach John Smith, also named as a

defendant, while she was a high school student. The jury

returned a verdict in favor of all defendants, except Smith, on all

claims against them, finding only Smith liable. The District

Court subsequently denied Bostic’s motion for a new trial. On

appeal, Appellants contend that the district court erred in

instructing the jury on who is an “appropriate official” and what

constitutes “actual notice” for purposes of Title IX liability.

I. JURISDICTION

The District Court had federal question jurisdiction

pursuant to 28 U.S.C. § 1331 and exercised supplemental

jurisdiction pursuant to 28 U.S.C. § 1367. This Court has

jurisdiction pursuant to 28 U.S.C. § 1291.

II. FACTUAL AND PROCEDURAL BACKGROUND
4

A. Factual Background

In the spring of 1999, Bostic was fifteen years old, a

sophomore at Smyrna High School, and a member of the

school’s track team, which was coached by Smith. A sexual

relationship developed between Bostic and Smith. The

relationship included numerous sexual encounters during and

after the school day, both on and off campus, and continued for

approximately one year.

The relationship became a topic of discussion among

students and generated reports that reached Principal Clarence

Lloyd and Associate Principal Anthony Soligo. Bostic’s

parents became concerned about the close relationship that they

observed between Bostic and Smith, including an incident when

Bostic and Smith were found alone together in a car at night.

In September 1999, Mr. Bostic met with Lloyd and

expressed his concerns. Lloyd told Mr. Bostic that he would

speak with Smith and get back to him. Lloyd subsequently

called Smith into his office and, in the presence of Soligo and

James Kiger, the school’s athletic director, discussed with Smith

the allegations made by Mr. Bostic. At the meeting, Smith

stated that he was sitting in the car discussing his marital

problems with Bostic. Lloyd warned Smith that being alone

with a student at night in a parked car was inappropriate and

told Smith to avoid improper conduct. Soligo also told Smith

that he should “minimize contact” with Bostic. Smith

responded that he had “it covered.” Lloyd subsequently called
5

Mr. Bostic and left a message describing what he had done and

asking Mr. Bostic to call him back if he had any further

concerns. Mr. Bostic did not call back.

Michael Feldman, a teacher at the school, subsequently

saw Smith and Bostic standing together in the hallway on two

occasions. Feldman stated that they were so close together that

they appeared to be two students, rather than a teacher and a

student. Feldman discussed the incidents with an assistant

principal, who conveyed the information to Lloyd. 

After learning of the hallway incidents, Lloyd summoned

Smith for another meeting with him and Soligo. At that

meeting, Lloyd reprimanded Smith and told him to cease oneon-one contact with Bostic. Lloyd stated that he “felt that he

gave him a very strong reprimand, that this was not going to be

tolerated.” Lloyd then spoke with Bostic, who told him that

there was “nothing going on.”

Lloyd told Ron Eby, assistant superintendent for the

school district, about the concerns regarding Bostic and Smith

and what he had done. Lloyd also asked whether he should do

anything else. Eby told him to keep an eye on the situation and

relayed the information to Debbie Wicks, the superintendent of

the district.

A few months later, Smith’s wife, also a teacher at

Smyrna High School, told Lloyd that she had caught Smith and

Bostic alone in her room at school. The next day, Mrs. Bostic
6

told Lloyd that she had purchased a clone pager, was

monitoring Bostic’s pages, and had hired a private investigator

to monitor the situation. Lloyd spoke with Smith again and

expressed his concerns. Smith admitted calling Bostic, but he

told Lloyd it was about track practice and again denied any

illicit interaction with Bostic.

In early February 2000, Mrs. Bostic asked Lloyd to allow

a private investigator she had hired onto the school campus and

to install cameras to monitor Bostic and Smith. Eby advised

Lloyd not to allow the investigator on campus, but Eby stated

that he would contact the District Attorney’s office regarding

the cameras.

Wicks set up a meeting with Eby and Smith, at which

Smith again denied any improper relationship with Bostic.

Because Smith seemed credible at the meeting, the

administrators took no further action.

Mrs. Bostic then spoke with Barry Meekins, a member

of the Smyrna Board of Education, about her concerns. On the

same day, Meekins called Wicks, asked why he had not been

informed of the situation, and stated that, based on what Mrs.

Bostic had said, he was going to call the police. Although her

reasons for doing so are unclear, Wicks tried to dissuade

Meekins from calling the police. On February 28, two police

officers spoke with Wicks and told her that they were

investigating a possible relationship between Smith and a

different student. Wicks suspended Smith that day. Smith
7

subsequently was arrested and pled guilty to crimes involving

both students.

B. Procedural Background

Bostic’s complaint alleged that the Smyrna Defendants

were liable under Title IX, and that all defendants were liable

under 42 U.S.C. § 1983, and state common law. The Smyrna

Defendants moved for summary judgment on all claims against

them. The motion was granted as to certain state common law

claims and the Title IX claims against Lloyd and Soligo. The

District Court, however, let stand the § 1983 and Title IX

claims. It concluded that there were material issues of fact with

regard to whether the relevant officials had “actual knowledge”

of the relationship and whether their response was “deliberately

indifferent.”

The case went to trial and the jury found for the Smyrna

Defendants on all remaining claims. The jury did, however,

find Smith liable and assessed damages against him in the

amount of $400,000.

Bostic moved for a new trial on the grounds that (1) the

verdict was against the great weight of the evidence, and (2) the

District Court’s jury instructions with regard to “actual notice,”

“appropriate official,” “supervisory liability,” and “lack of

training” were erroneous. The District Court denied the motion,

and Bostic timely appealed. 
Bostic does not contest the jury’s verdict in favor of 2

Appellees on her 42 U.S.C. § 1983 claim, the jury instructions

pertaining to “supervisory liability” and “lack of training,” or

the denial of her motion for a new trial based on the weight of

the evidence.

8

III. ANALYSIS

Bostic’s sole contention on appeal is that the District

Court’s instructions on “actual notice” and “appropriate

official” under Title IX misstate the law and were contrary to

the teachings of the Third Circuit and the United States

Supreme Court.2

A. Objection raised below

The Smyrna Defendants contend that Bostic failed to

object to the Title IX jury instructions below. In order to

preserve an objection “to an instruction or the failure to give an

instruction,” a party must timely object “on the record, stating

distinctly the matter objected to and the grounds of the

objection.” Fed. R. Civ. P. 51(c)(1). “Generally, a party who

does not clearly and specifically object to a charge he believes

to be erroneous waives the issue on appeal.” Alexander v. Riga,

208 F.3d 419, 426 (3d Cir. 2000); see also Fed. R. Civ. P.

51(d)(1). However, we “may consider a plain error in the

instructions affecting substantial rights that has not been

preserved as required by Rule 51(d)(1)(A) or (B).” Fed. R. Civ.

P. 51(d)(2).
9

During a charge conference held in chambers, the Court

asked the parties to review the jury instructions he had

formulated, advising them to pay “particular attention to Title

IX.” After a short recess, the Judge returned and inquired

whether “there [was] anything . . . in the substance of the

instructions thus far that we ought to raise.” Bostic’s counsel

stated, “I still request our instructions on Title IX. But I don’t

have any objections at this point as to the instruction.”

Although Bostic’s counsel subsequently reiterated his request

for the Court to give his proposed instruction, he did not “stat[e]

distinctly the matter objected to and the grounds of the

objection,” as required by Rule 51(c)(1). To the contrary, he

specifically stated that he did not have any objections to the

Title IX instruction. We therefore review for plain error.

“Under such circumstances, we will overturn a verdict ‘only

where the error is fundamental and highly prejudicial or if the

instructions are such that the jury is without adequate guidance

on a fundamental question and our failure to consider the error

would result in a miscarriage of justice.’” Watson v. S.E. Penn.

Transp. Auth., 207 F.3d 207, 212 (3d Cir. 2000) (quoting Smith

v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir. 1998)).

B. Jury instructions

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

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

denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Title IX encompasses sexual
10

harassment of a student by a teacher and is enforceable through

an implied private right of action for damages against a school

district. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,

75-76 (1992).

In order to enforce Title IX’s nondiscrimination mandate,

an agency that disburses federal education funds must provide

“notice to an ‘appropriate person’ and an opportunity to rectify

any violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 290 (1998) (quoting 20 U.S.C. § 1682). Relying on these

requirements, the Supreme Court held in Gebser that damages

may not be recovered under Title IX “for the sexual harassment

of a student by one of the district’s teachers . . . unless an

official of the school district who at a minimum has authority to

institute corrective measures on the district’s behalf has actual

notice of, and is deliberately indifferent to, the teacher’s

misconduct.” Id. at 277. An “appropriate person” is “an

official who at a minimum has authority to address the alleged

discrimination and to institute corrective measures on the . . .

[district’s] behalf.” Id. at 290. “Actual notice” must amount to

“actual knowledge of discrimination in the recipient’s

programs.” Id. Further, “the response must amount to

deliberate indifference to discrimination. . . . The premise, in

other words, is an official decision by the recipient not to

remedy the violation.” Id.

Here, the district court instructed the jury in pertinent

part as follows:
11

In order for Jennifer Bostic to establish her Title

IX claim against the Institutional Defendants, she

has the burden of proving by a preponderance of

the evidence that a school official with the power

to take action to correct the discrimination had

actual notice of the discrimination, and, further,

that the Institutional Defendants then responded

to that notice with deliberate indifference. . . .

An educational institution has “actual notice,”

sometimes called “actual knowledge” of

discrimination[,] if an appropriate person at the

institution has knowledge of facts sufficiently

indicating substantial danger to a student so that

the institution can reasonably be said to be aware

of the danger.

An “appropriate person” is the type of school

official I’ve referred to previously, namely one

with the power to take action to correct the

discrimination. A school principal who is

entrusted with the responsibility and authority

normally associated with that position will

ordinarily be an “appropriate person.” Other

school officials may be “appropriate persons,”

depending on their power to take corrective

action to address the discrimination and institute

corrective measures.
 Warren was concerned with who is an “appropriate 3

person” and did not address the “actual notice” issue. See

Warren, 278 F.3d at 171-75 (discussing the standard for who is

an “appropriate person” and whether the plaintiff established

that an “appropriate person” had actual knowledge).

12

1. Actual notice

Appellants contend that the “actual notice” requirement

is satisfied by “information sufficient to alert the principal to the

possibility that a teacher was involved in a sexual relationship

with a student.” They argue that the district court’s instruction

used a higher standard of notice than that required by Gebser

and by Warren v. Reading Sch. Dist., 278 F.3d 163 (3d Cir.

2002).3

Contrary to Bostic’s contention, Gebser never set forth

a standard of “actual notice” based upon “information sufficient

to alert the principal to the possibility that a teacher was

involved in a sexual relationship with a student.” Rather,

Gebser clearly stated that an “appropriate person” must have

“actual knowledge of discrimination in the recipient’s programs

and fail[] adequately to respond.” Gebser, 524 U.S. at 290. The

excerpt of Gebser cited by Bostic is taken out of context from

a section of the opinion in which the Court applied the

framework it had established to the facts of the case. What the

Court actually stated was that information that “consisted of a

complaint from parents of other students charging only that [the

teacher] had made inappropriate comments during class . . . was
13

plainly insufficient to alert the principal to the possibility that

[the teacher] was involved in a sexual relationship with a

student.” Id. at 291 (emphasis added).

Moreover, given the Court’s express rejection of

constructive notice or respondeat superior principles to permit

recovery under Title IX, it is unlikely that it intended “actual

notice” to be based on a “possibility.” See id. at 285-90.

Indeed, in a subsequent opinion, the Court noted that “Gebser

thus established that a recipient intentionally violates Title IX .

. . where the recipient is deliberately indifferent to known acts

of teacher-student discrimination.” Davis v. Monroe County Bd.

of Educ., 526 U.S. 629, 643 (1999) (emphasis added). Because

a “possibility” cannot be equated with a “known act,”

Appellants’ proffered jury instruction on “actual notice” did not

correctly set forth the law; therefore, the District Court did not

err in rejecting it.

Bostic also contends that the District Court erred in

including language relating to “substantial danger” in the

“actual notice” instruction. This language is identical to that

used in 3C Fed. Jury. Prac. & Instr. § 177.36 (5th ed. 2001):

An educational institution has “actual

knowledge” if it knows the underlying facts,

indicating sufficiently substantial danger to

students, and was therefore aware of the danger.
14

Id. The instruction subsequently cites to both Davis and

Gebser. Although the “substantial danger” language does not

appear in either case, neither is it inconsistent with the standard

set forth in those cases regarding “actual knowledge.” See

Davis, 526 U.S. at 643 (recipient must be deliberately

indifferent to “known acts of teacher-student discrimination”);

Gebser, 524 U.S. at 290 (recipient must have “actual knowledge

of discrimination”).

Bostic correctly points out that the substantial danger

language originates from a pre-Gebser Fifth Circuit opinion,

Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 653

(5th Cir. 1997). However, Gebser itself affirmed another Fifth

Circuit opinion that relied upon the reasoning in Rosa H. See

Gebser, 524 U.S. at 279-80; Doe v. Lago Vista Indep. Sch.

Dist., 106 F.2d 1223, 1226 (5th Cir. 1997) (citing the standard

in Rosa H. that “school districts are not liable in tort for teacherstudent harassment under Title IX unless an employee who has

been invested by the school board with supervisory power over

the offending employee actually knew of the abuse, had the

power to end the abuse, and failed to do so”). We therefore

reject Appellant’s contention that Rosa H. and the “substantial

danger” language are no longer validly applied to Title IX. The

District Court’s instruction on actual notice did not constitute

error, much less plain error.

2. Appropriate person

Bostic also challenges the District Court’s instruction
15

regarding “appropriate person.” She contends that the jury

should have been instructed that Lloyd and Soligo were both

appropriate officials as a matter of law, given that Lloyd’s

position as principal and Soligo’s position as assistant principal

were undisputed.

We concluded in Warren that “a school principal who is

entrusted with the responsibility and authority normally

associated with that position will ordinarily be ‘an appropriate

person’ under Title IX.” Warren, 278 F.3d at 171.

Nevertheless, contrary to Appellants’ contention, that did not

end the inquiry. Rather, we went on to state that “we must still

determine if the evidence here was sufficient to allow a

reasonable jury to conclude that ‘an appropriate person’ had

actual knowledge of . . . [the] abuse.” Id. Warren therefore

does not support Appellants’ argument that Lloyd and Soligo

should be deemed appropriate persons, as a matter of law, by

virtue of their positions. Warren did conclude that the district

court erred in failing to instruct the jury that the school guidance

counselor could not be an appropriate person, based on the

record in that case. Id. at 174. However, this is not analogous

to saying, as Bostic contends, that the District Court here should

have instructed that Lloyd and Soligo are appropriate officials.

The Court did not err in failing to so instruct the jury.

Moreover, its instruction regarding a school principal followed

the language of Warren precisely.
 Because of our resolution of the jury instructions issues 4

raised by Appellants, it is unnecessary to address Appellees’

contention that the District Court erred in holding that the

relationship between Smith and Bostic was “unwelcome” as a

matter of law, or to resolve whether Appellees preserved the

issue, despite their failure to file a cross-appeal on the issue.

16

IV. CONCLUSION

Based upon the foregoing, we affirm the judgment of the

District Court.4