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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 6, 2020 No. 19-50737 Lyle W. Cayce Clerk JANE DOE, now known as M.E., Plaintiff–Appellant, v. EDGEWOOD INDEPENDENT SCHOOL DISTRICT, Defendant–Appellee. Appeal from the United States District Court for the Western District of Texas Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit Judges. DON R. WILLETT, Circuit Judge: Under the Supreme Court’s decision in Gebser v. Lago Vista Independent School District, a school district is not liable under Title IX for teacher-on- student harassment unless the district, among other things, had “actual notice” of the misconduct and was “deliberately indifferent” to it.1 As for actual notice, it is not enough the misconduct is reported to any employee. The reported-to employee must “at a minimum ha[ve] authority to institute 1 524 U.S. 274, 277 (1998). Case: 19-50737 Document: 00515477382 Page: 2 Date Filed: 07/06/2020 No. 19-50737 corrective measures on the district’s behalf.”2 As for deliberate indifference, it is a “high bar”—“neither negligence nor mere unreasonableness is enough.”3 This tragic case concerns a high school student who endured two years of repeated, and repulsive, employee-on-student misconduct. Worse, Doe was abused by two school employees, a school peace officer and a teacher, both of whom were later criminally prosecuted. Student-plaintiff Jane Doe asserted Title IX and constitutional claims, but the district court, applying settled precedent, granted summary judgment to the school district. Having carefully reviewed the record in light of the parties’ extensive briefs, oral argument, and governing law, we affirm. I. BACKGROUND A. Factual Background In 2012, Doe enrolled as a freshman at Memorial High School, part of Edgewood Independent School District. Soon after, Manuel Hernandez—one of Memorial’s two peace officers—began sexually harassing Doe.4 Specifically, Hernandez detained Doe in his on-campus office, professed his feelings for her, and touched and groped her. The following year, Marcus Revilla—Doe’s chemistry teacher—also began sexually harassing her. The misconduct escalated, and Doe became pregnant with Revilla’s child in December 2013 or January 2014. The record indicates that Hernandez discovered this abuse but did nothing to report or stop it. Instead, Hernandez leveraged his knowledge of Revilla’s abuse to coerce Doe into sexual acts with him too.

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No. 19-50737 This abuse of Doe continued until March 2014, when both Revilla and Hernandez were arrested. Hernandez was found guilty of sexual assault of a child. And Revilla pleaded guilty to state and federal charges related to his relationship with Doe and possession of obscene material. B. Current Lawsuit Doe sued EISD5 under Title IX of the Education Amendments of 1972 and 42 U.S.C. § 1983, alleging that Hernandez and Revilla sexually abused her while she was a student at Memorial and that EISD responded with deliberate indifference to this known abuse. Doe alleges that, while she was being sexually harassed and abused, school personnel received several reports, but EISD employees failed to respond adequately. After multiple amended complaints and dismissal of some claims and parties, EISD moved for summary judgment on the remaining claims—a Title IX sexual harassment claim and § 1983 substantive due process claims based on (1) failure to train school district employees regarding sexual harassment or abuse, (2) insufficient sexual harassment and child abuse policies, and (3) insufficient employee hiring policies and practices. Regarding EISD’s hiring policies and practices, Doe argues that their inadequacy resulted in the hiring of Hernandez despite the obvious risk he posed to students like Doe. In particular, the record shows that Hernandez, while serving the San Antonio Police Department in 1983, was arrested for “official oppression” of a minor he had arrested.^[6] The SAPD suspended him 5Doe originally sued EISD, EISD’s police department, EISD’s Memorial High School, and former EISD employees Revilla and Hernandez. Doe dismissed Revilla and Hernandez. And the district court dismissed all claims against EISD’s police department and Memorial High School, leaving EISD as the sole defendant. Doe did not challenge these dismissals on appeal.

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No. 19-50737 be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”10 A genuine dispute of material fact exists if a reasonable jury could enter a verdict for the non-moving party.^[11] And in Title IX cases, the Supreme Court has expressly noted the appropriateness of pretrial dismissal in certain cases: “there is no reason why courts, on a motion . . . for summary judgment, . . . could not identify a response as not ‘clearly unreasonable’ as a matter of law.”12 III. DISCUSSION A. Employee-on-student sexual harassment claims under Title IX Title IX states that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.”13 Passed under Congress’s Spending Clause authority,14 Title IX is contractual in nature, not banning discrimination outright but “conditioning an offer of federal funding on a promise by the recipient not to discriminate.”15 Put simply, there are strings attached. And if a school that receives federal funding violates the “no sex discrimination” condition, it may be held liable for money damages.16 The Supreme Court in Gebser defined the contours of Title IX liability. And it did so carefully, given the statute’s contractual framework. Essentially, Case: 19-50737 Document: 00515477382 Page: 6 Date Filed: 07/06/2020

No. 19-50737 schools are liable only for intentional sex discrimination.17 And while Title IX covers “diverse forms” of such of discrimination18—including the despicable conduct that occurred here—it is not easy to prove an intentional violation of Title IX. Boiled down, Title IX requires actual notice to an “appropriate person” and “an opportunity for voluntary compliance.”19 First, “actual knowledge.” Under Gebser, a school district cannot be liable in damages for a teacher’s sexual harassment of a student unless “an official [with] authority to address the alleged discrimination and to institute corrective measures . . . has actual knowledge of discrimination . . . and fails adequately to respond.”20 And for the district to have knowledge, it is not enough that any employee knew of the harassment; it must be someone authorized to rectify it.^[21] Second, “deliberate indifference.” Even if the school district knew about employee-on-student misconduct, the district cannot be liable unless its response amounted to “deliberate indifference.”22 And as we have observed, “[t]he deliberate indifference standard is a high one.”23 For example, liability does not attach where the official with authority to take corrective action 17Gebser, 524 U.S. at 290; Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993) (concluding that a showing of intentional discrimination is required for recovery under Title IX). 18Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005). Importantly, the Supreme Court has explicitly recognized that “sexual harassment can constitute discrimination on the basis of sex under Title IX.” Gebser, 524 U.S. at 283 (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. ^[75], 80–81 (1998)).

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No. 19-50737 responds reasonably to a risk of harm, “even if the harm ultimately was not averted.”24 Doe falters out of the gate. She cannot show that a district official with the power to take corrective action had actual knowledge of the harassment.^[25] 1. Officer Hernandez is not an “appropriate person” for purposes of Title IX. As for Doe’s Title IX claim, the chief issue on appeal relates to the actual- knowledge requirement. EISD doesn’t contest that Hernandez (the peace officer) knew that Revilla (the teacher) was abusing Doe. Nor does EISD contest that Hernandez responded with deliberate indifference. But it is a district’s own misconduct—not the actions of its students, rank-and-file employees, or other third parties—that exposes it to liability under Title IX.^[26] Doe must first prove that an official with authority to take corrective action on behalf of EISD had actual knowledge of the harassment. Gebser refers to such an official as an “appropriate person,”27 and that’s issue one: whether Hernandez constitutes an “appropriate person.” Doe argues that Hernandez was an “appropriate person” because (1) EISD’s peace officers had authority to monitor the criminality of all EISD personnel, so Hernandez supervised Revilla, and (2) Hernandez had authority to arrest Revilla, so he had authority to institute corrective measures on the district’s behalf. This reasoning is unpersuasive. First, the power to enforce the law does not automatically make Hernandez Revilla’s “supervisor.” Under Doe’s logic, Hernandez would be the supervisor of every EISD employee—including the superintendent. Plus, in the Case: 19-50737 Document: 00515477382 Page: 8 Date Filed: 07/06/2020

No. 19-50737 employment-discrimination context, the Supreme Court has defined a “supervisor” as someone the employer has authorized to take “tangible employment actions”—“i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, [or] reassignment.”28 Hernandez had no power to do any such thing. In fact, under Texas law, Hernandez cannot hire or fire employees.29 Bottom line: Hernandez was not Revilla’s “supervisor.” Second, arresting Revilla is not the equivalent of instituting corrective measures on behalf of EISD. Determining whether someone is an official with authority to institute corrective measures is a fact-specific inquiry.^[30] To begin with, the State—not EISD—empowered Hernandez to arrest, and any arrest he made would be on the State’s behalf.^[31] So arresting someone could not be a Case: 19-50737 Document: 00515477382 Page: 9 Date Filed: 07/06/2020

No. 19-50737 corrective action on behalf of the school district, as Gebser requires.^[32] And this requirement underscores the ultimate purpose of the “appropriate person” inquiry: to determine whether Hernandez’s knowledge of Revilla’s sexual abuse “is functionally equivalent to the school district’s actual knowledge.”33 As we have explained, to be an “appropriate person” under Title IX, the official must have authority to both “repudiate th[e] conduct and eliminate the hostile environment.”34 The power to arrest someone is not the same as the ability to eliminate a hostile environment. For example, even if Hernandez had arrested Revilla for abusing Doe, Revilla may have been released or posted bail. In that case, Revilla could have returned to work at Memorial unless a different EISD official—an actual “supervisor”—suspended or terminated him. And myriad courts have recognized that the power to institute corrective measures must include the power to terminate or discipline.^[35] As discussed, Case: 19-50737 Document: 00515477382 Page: 10 Date Filed: 07/06/2020

No. 19-50737 Hernandez had no such power.^[36] Nor did Hernandez have the power to reformulate district sexual harassment policies or publicly “repudiate th[e] conduct.”37 Plus, though Hernandez had the duty and authority to take action to stop crimes occurring on campus, such a duty is imposed—at least in some form (for example, reporting obligations)—on the vast majority of school employees.^[38] So, as the district court noted, “extending ‘appropriate persons’ under Title IX to include any individual who is authorized and/or instructed to take any action to halt abuse from a law enforcement perspective or otherwise would result in nearly every district employee being covered by the analysis.”

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No. 19-50737 And this result is incompatible with Title IX’s existing liability framework. Indeed, we have long held that, generally, the “bulk of employees” are not covered for purposes of a district’s “notice” under Title IX.39 As the district court explained, EISD peace officers are generally “like the vast majority of other school employees, in the sense that (1) they have no discretionary authority with respect to the district’s sexual harassment policies designed to end discrimination on campus, and (2) their day-to-day actions do not generally constitute ‘official decisions’ by the district.” For example, rank-and-file employees such as peace officers generally cannot bind the institution. Specifically, under Texas law, Hernandez could not sign a contract on EISD’s behalf,40 receive or hold real or personal property or funds on EISD’s behalf,41 or be assigned any administrative tasks.^[42] And, as discussed, under Texas law, Hernandez could not hire or fire teachers.^[43] Recognizing these similarities to other rank-and-file employees, numerous courts have held that “notice” of sexual harassment or abuse provided only to a police or security officer is insufficient to impute actual knowledge to the school district or university for purposes of Title IX.44 39Rosa H., 106 F.3d at 660; see also Corp. of Mercer Univ., 506 F. Supp. 2d at 1352 n.43 (explaining that teachers, coaches, and school employees are not generally “appropriate individuals” for purposes of notice under Title IX).

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No. 19-50737 the recipient’s programs”47 to mean that “the Court implicitly decided that harassment of persons other than the plaintiff may provide the school with the requisite notice to impose liability under Title IX.”48 Leaning heavily on Escue,49 a Tenth Circuit case, Doe argues that EISD’s knowledge of (1) Hernandez’s 1983 arrest for official oppression, and (2) the January 2013 report of a student at Revilla’s home both constitute prior acts of sexual harassment that gave EISD actual knowledge of a substantial risk of harm under Title IX. We address each argument in turn. a. Officer Hernandez’s arrest for “official oppression” First, Doe argues that the district court “erred because it failed to consider” EISD’s knowledge of Hernandez’s 1983 arrest for “official oppression,” which she claims constitutes actual knowledge of a risk of substantial harm to students like Doe. But Doe did not urge this theory in her response to EISD’s motion for summary judgment.^[50] Because Doe failed to raise this issue before the district court, it is forfeited on appeal.51 b. January 2014 investigation of Revilla Second, Doe argues that Principal Rodriguez had actual knowledge stemming from an investigation into and suspension of Revilla about two months prior to his ultimate arrest. The record shows that, in January 2014, EISD received a report from Revilla’s ex-girlfriend that a male student had Case: 19-50737 Document: 00515477382 Page: 14 Date Filed: 07/06/2020

No. 19-50737 been dropped off at Revilla’s residence. EISD suspended Revilla while it investigated the report. The investigation revealed that the student’s parent gave him permission to go to—and dropped him off at—Revilla’s home to work on a project for a school pep rally, which Revilla supervised. As such, the investigation was inconclusive, and EISD reinstated Revilla. The district court concluded that “the January 2014 incident is not the type that would place [EISD] on notice that Revilla was engaged in sexual relations with students, and certainly not with respect to [Doe].” So it determined that the January 2014 incident did not provide EISD with notice for purposes of Revilla’s abuse of Doe. We agree. In Gebser, the Supreme Court stated that one report of a teacher making inappropriate comments “was plainly insufficient to alert the principal to the possibility that [the teacher] was involved in a sexual relationship with a student.”52 Likewise, one report that a male student came to Revilla’s home was insufficient to alert EISD that Revilla was in a sexual relationship with a female student.^[53] In fact, the January 2014 report had nothing to do with Doe— or any female student—and there was no evidence of sexual misconduct. Rather, the male student involved had parental permission and was engaged in a school-related project. This investigation did not yield information suggesting Revilla posed a substantial risk of sexual abuse. At bottom, Doe’s argument is constructive notice by another name.54 And the Supreme Court Case: 19-50737 Document: 00515477382 Page: 15 Date Filed: 07/06/2020

No. 19-50737 has clearly rejected that standard in favor of actual notice.^[55] So we agree with the district court on this issue.^[56] B. EISD does not have “municipal liability” under § 1983. 1. EISD’s Hiring Policies Finally, Doe advances multiple theories as to why EISD has “municipal liability” pursuant to 42 U.S.C. § 1983. First, Doe argues that EISD has municipal liability because its hiring policy lacked specific requirements about how to analyze an applicant’s arrest record, which “constrained” hiring officials. Under Monell v. Department of Social Services of City of New York57 and its progeny, a claim of “municipal liability under Section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.”58 “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”59 To that end, § 1983, like Title IX, does not impose Case: 19-50737 Document: 00515477382 Page: 16 Date Filed: 07/06/2020

No. 19-50737 liability on school districts for an employee’s tort under a respondeat superior liability theory—but only for “their own illegal acts.”60 So to prevail against a public school district, a plaintiff must show that the district’s final policymaker acted with deliberate indifference in maintaining an unconstitutional policy that caused the plaintiff’s injury.^[61] First, EISD’s Board of Trustees is the final policymaker in this case. “[W]hether an official had final policymaking authority is a question of state law.”62 And “Texas law is clear that final policymaking authority in an independent school district . . . rests with the district’s board of trustees.”63 Next, we look to whether the Board had an official policy for screening applicants and hiring employees when Hernandez was hired in June 2012.64 Indeed, the Board had such an official policy. It included DAC (Local), which established objective hiring criteria, and DBAA (Legal), which described employment restrictions and requirements, such as obtaining criminal history records and fingerprints of employees.^[65] Finally, Doe must prove that this official policy was the “moving force” behind the violation of her constitutional rights.^[66] Here, there’s no dispute that Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997) (quoting Case: 19-50737 Document: 00515477382 Page: 17 Date Filed: 07/06/2020

No. 19-50737 the sexual abuse Hernandez perpetrated on Doe violated her constitutional rights.^[67] But this third element—causation—proves fatal to Doe’s argument. EISD’s hiring policy was not the “moving force” behind Hernandez’s unconstitutional actions. “Moving force” causation is more than “but for” causation.^[68] Doe must show that the final policymaker had the requisite degree of culpability and that EISD’s policies were the actual cause of the constitutional violation.^[69] She has not. When it comes to the “moving force” behind the sexual abuse of Doe, we agree with the district court that Hernandez’s misconduct was the actual cause of the violation. Arguably, the hiring administrator’s choice to hire Hernandez without further investigation of his employment and criminal history was negligent. But EISD cannot be held liable for an employee’s negligence under a respondeat superior theory.70 2. Hiring of Officer Hernandez Doe also argues that the hiring administrator’s decision to hire Hernandez constitutes a district policy that triggers municipal liability under § 1983. The district court disagreed. And so do we. True, we have recognized that “a single decision by a policymaker may, under certain circumstances, constitute a policy for which [a municipality] may Case: 19-50737 Document: 00515477382 Page: 18 Date Filed: 07/06/2020

No. 19-50737 be liable.”71 But a plaintiff who brings a claim pursuant to this “extremely narrow” “single incident exception”72 must show (1) the hiring decision was made by a final policymaker, and (2) a “plainly obvious consequence of the decision” is a constitutional violation.73 As for the first prong—the hiring decision must be made by a final policymaker—it’s critical to distinguish between “an exercise of policymaking authority and an exercise of delegated discretionary policy-implementing authority.”74 The former can trigger § 1983 municipal liability; the latter cannot. Here, a hiring administrator screened Hernandez’s application and decided to hire him. Unlike the Board, this administrator is not a final policymaker;75 rather, he or she has only been delegated discretionary policy- implementing authority. By limiting the single decisions that trigger municipal liability to those made by final policymakers, we avoid imposing respondeat superior liability, which the Supreme Court has rejected in the § 1983 context.76 That should be the end of the inquiry: The “single decision exception” does not apply. But even assuming that Doe satisfied the first requirement, she fails on the second. Specifically, a plaintiff must show deliberate indifference—that a Case: 19-50737 Document: 00515477382 Page: 19 Date Filed: 07/06/2020

No. 19-50737 constitutional violation is a plainly obvious consequence of the final policymaker’s decision.^[77] To do so, Doe must provide evidence to show “a strong connection between the background of [Hernandez] and the specific violation alleged,” such that he “was highly likely to inflict the particular type of injury suffered.”78 Doe has failed to meet this burden. Consider the information the hiring administrator had in June 2012. Hernandez was arrested for official oppression in 1983, acquitted the following year, rehired by the City of San Antonio Police Department, and then served over twenty-seven years in law enforcement and became a master peace officer prior to applying to EISD. Hernandez’s criminal record didn’t provide any detail about the alleged conduct underlying his 1983 arrest. Hernandez provided two of three requested references, his immediate past supervisor and his brother, both of whom responded positively. Are there red flags in his application? Yes. But that’s not enough to attribute deliberate indifference to EISD. The information about Hernandez reviewed at the time of hiring simply does not show the requisite “strong connection” between an arrest in 1983 for official oppression and sexual abuse thirty years later—especially when viewed in light of existing caselaw. Both the Supreme Court and this court have declined to find liability under § 1983 where a local governmental entity hired an officer with one or more prior arrests (including those of a sexual nature), the hiring official failed to investigate the unspecified conduct underlying the arrest(s), and/or the hiring official failed to follow-up with prior employers from which the applicant Case: 19-50737 Document: 00515477382 Page: 20 Date Filed: 07/06/2020

No. 19-50737 had been terminated.^[79] Like the hiring officials in Brown and Rivera, EISD’s hiring administrator hired someone with an arrest record without seeking information about the underlying conduct. And like the hiring official in Hardeman, EISD’s hiring administrator hired someone without contacting the employer who previously fired him. Arguably, in all these cases, the hiring official inadequately assessed an application and made a poor hiring decision. But “[a] showing of simple or even heightened negligence will not suffice.”80 As the Supreme Court has cautioned, “predicting the consequence of a single hiring decision, even one based on an inadequate assessment of a record, is far more difficult than predicting what might flow from the failure to train a single law enforcement officer as to a specific skill necessary to the discharge of his duties.”81 “Where a claim of municipal liability rests on a single decision Case: 19-50737 Document: 00515477382 Page: 21 Date Filed: 07/06/2020

No. 19-50737 . . . the danger that a municipality will be held liable without fault is high.”82 So the standard for showing that Doe’s injury was the “plainly obvious consequence” of the hiring decision is a high bar.^[83] And under controlling precedent, Doe cannot scale it. We thus agree with the district court that the hiring administrator’s decision to hire Hernandez does not trigger municipal liability. ^[3]. Doe’s Hybrid Theory Unable to prove municipal liability under either of these theories, Doe seems to have created a hybrid theory that cherry-picks elements from both. Basically, she combines the policymaker element from the “official policy” theory with the causation element from the “single incident” theory. This approach, though creative, is unavailing. Doe asserts that EISD omitted a requirement for additional screening, that this omission led to the hiring administrator being deliberately indifferent to the consequences of her hiring decision, and that the hiring administrator’s deliberate indifference was the “moving force” behind her injury. This attenuated causation argument is problematic for multiple reasons. For starters, Doe has not shown that EISD’s policies were unconstitutional or that the omission of any specific guideline about how and when to use arrest data from a criminal record was so glaring as to make “the particular injury suffered by [Doe]” a known or obvious consequence of the Board’s decision to not include such detailed requirements in its policy.^[84] Case: 19-50737 Document: 00515477382 Page: 22 Date Filed: 07/06/2020

No. 19-50737 Also, although some courts have held a municipality liable for an omission where its “deliberate indifference led to its omission and . . . the omission caused the employee to commit the constitutional violation,”85 that’s not what we have here. Doe’s causation theory is more attenuated and in a different sequence. And Doe has not shown that, when adopting its hiring policy, the Board had knowledge of anyone else having been injured by an EISD employee who had been arrested—but not convicted—of a crime. Nor has Doe shown a pattern of constitutional violations and a decision by the Board to continue following “an approach that they know or should know has failed to prevent” such constitutional violations.86 Doe has fallen short of the “rigorous standards of culpability and causation” that “must be applied to ensure that [EISD] is not held liable solely for the actions of its employee.”87 The district court got this right too. CONCLUSION Jane Doe endured contemptible misconduct, and we do not minimize the cruelty of what she suffered. Both her assailants were criminally punished. But we are bound by on-point precedent, which imposes exacting liability requirements. On these facts, the district court correctly concluded that EISD cannot be held liable under Title IX or § 1983 for its employees’ reprehensible acts. We AFFIRM.