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September 17, 1999

Record No. 982466







Johnny E. Morrison, Judge

PRESENT: Carrico, C.J., Compton, Hassell,
Keenan, Koontz, and Kinser, JJ., and Whiting, Senior Justice


In this appeal, we consider whether a high
school student established a cause of action against a
school board pursuant to 42 U.S.C. ? 1983, which
states, in relevant part:

Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be
, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law.

42 U.S.C. ? 1983 (emphasis added).

In 1995, the school administration at Wilson
High School in Portsmouth discovered that, beginning in late 1991
or early 1992, John Crute, a teacher and women’s track coach, had
been secretly videotaping the plaintiff, Latasha Colander, and
other members of the women’s track team in various stages of
undress in the women’s locker room at the high school.

In 1996, after the plaintiff learned of Crute’s
activities, she filed this action asserting a number of claims
under 42 U.S.C. ? 1983 against Crute, the school board, the
superintendent of schools, the principal, and the athletic
director. She also filed common law claims against Crute, but
those claims are not pertinent to our resolution of this appeal.

Prior to trial, the three school officials were
dismissed on summary judgment.
[1] At trial, Crute admitted liability. In returning
verdicts against Crute and the school board, the jury awarded
damages in the following sums: $43,000 in compensatory damages
and $500,000 in punitive damages against Crute, and $250,000 in
compensatory damages against the school board.

Judgment was entered on the verdicts, and the
school board appeals. Applying well-settled principles of
appellate review, we will review the facts in the light most
favorable to the plaintiff who is fortified with a jury verdict
approved by the trial court.

In 1988 and 1989, more than two years before
the secret videotaping that precipitated the present litigation
began, Crute videotaped a number of team members in various track
uniforms with their knowledge and consent. During this period,
14-year-old Lakesha Coletrain, a team member, agreed to Crute’s
request that she remain after track practice to be videotaped in
her track uniform for a portfolio Crute said he was preparing for
each girl. After the other members of the team had left the
school, Coletrain went with Crute to a remote area of the school
building where Crute videotaped her in eight different track

Each time Coletrain changed uniforms, she went
into a classroom and closed the door. Crute asked Coletrain to
remove her underpants to change into one uniform that was cut
high in the pubic area because he said that the uniform did not
look good with the underpants. During the videotaping session,
Crute instructed Coletrain to stretch her legs on the floor and
over a hurdle. He told her that if the stretching hurt, she could
grunt because it would not be heard on the videotape since he
would talk over it.

Upon Coletrain’s return home, her parents
questioned her about the videotaping session and learned that
Coletrain had been alone with Crute during the three to four hour
period in which he videotaped her. The next day, her father went
to the school and demanded that Crute give him a copy of the
tape, which Crute did the following day.

Both parents viewed the tape and the father
testified that the tape "looked like it had just been
spliced," and was "about a three-minute version"
of the taping session. He also testified that the tape showed his
daughter in eight different track uniforms that looked like
bathing suits, that she had her leg propped up as if she were
jumping a hurdle, that the camera was "zooming in on her
crotch, zoomed in on her rear," that he heard Crute’s voice
in the background encouraging her to stretch her legs while in a
stretching pose, and that Crute was also doing "a lot [of] moaning and groaning."

Upon hearing the Coletrains’ complaint about
the tape and Crute’s conduct the next day, the superintendent of
schools ordered Judith Kirman, the high school principal, to
conduct an investigation to ascertain whether Crute had done
anything objectionable or inappropriate. Crute furnished copies
of the videotapes to Kirman and the school officials who assisted
in the investigation. The investigators viewed a copy of each
track member’s tape during their separate interviews with most of
the team members and their parents or guardians.

Although the Coletrains and another parent
thought that Crute’s actions were inappropriate, other parents
did not. Kirman and the other school officials concluded that
Crute had done nothing objectionable or inappropriate. In
accordance with the school policy of "progressive
discipline," no record of the incident was kept in Crute’s
personnel file because it was the first complaint against Crute
and, upon investigation, it had been found to be groundless.

Nevertheless, upon terminating the
investigation, Kirman ordered Crute to modify his past practices
by (1) confining the videotaping of team members to "track
meets when the girls were running," (2) taking a female
chaperone to out-of-school-district track meets, and (3)
refraining from driving team members home in his car after track
practices. Although Crute violated the second and third orders on
one or more occasions, there was no evidence that anyone was
aware of his violation of the first order until the 1995
discovery of the secret videotaping.

It was then discovered that, beginning in late
1991 or early 1992, Crute had concealed one of the school’s video
cameras in a storage room adjoining the women’s locker room. He
used the camera to secretly videotape track members, including
the plaintiff, changing their clothes. The plaintiff’s motion for
judgment claims that Crute’s actions were in violation of her
"constitutional right to bodily security and integrity to be
free from unjustified intrusions on her personal security, and to
personal privacy." The plaintiff also alleged that the
school board had knowledge of Crute’s activity and of his
"propensity to behave inappropriately towards the students
under his direction and control based on prior complaints,"
yet "made and enforced a policy of allowing defendant Crute
to continue his inappropriate behaviors by failing to take
immediate and decisive action to end such conduct."

The school board has raised a number of
questions on appeal, but we find dispositive issues concerning
the school board’s alleged violation of its duty to the plaintiff
under ? 1983 and the causal connection of that violation to
the deprivation of the plaintiff’s constitutional rights. The
plaintiff claims, however, that we cannot reach these issues
because the school board failed to raise them in the trial court.
We disagree with that claim.

The record shows that in its motion to strike
the plaintiff’s evidence at trial, the school board cited Commissioners
of Bryan County v. Brown
, 520 U.S. 397 (1997), and argued as
follows: "Congress did not intend to impose liability on a
municipality unless deliberate action attributable to [the] municipality itself is a moving force behind the plaintiff’s
deprivation of federal rights. . . .[I]t must be
deliberate indifference on behalf of the school
officials. . . .[T]he facts. . .cannot
rise to the level of constituting an official policy of the
School Board and a causal connection to a federal violation of
the plaintiff’s Constitutional
rights. . . .There’s been no deliberate
indifference shown by anyone." We think these statements
were sufficient to preserve for appeal the issues we find
dispositive, and we will proceed to the merits of the case.

The right of action advanced by the plaintiff
arises under a federal statute. Therefore, we apply federal
jurisprudence in determining her rights. Federal Deposit
Insurance Corporation v. Mapp’s Ex’r
, 184 Va. 970, 974, 37
S.E.2d 23, 24 (1946); Southern Ry. v. Wilmouth, 154 Va.
582, 589, 153 S.E. 874, 876 (1930). Although "municipalities
and other local governmental bodies are ‘persons’ within the
meaning of ? 1983," a ? 1983 plaintiff must show
that the governmental body itself "caused" the
deprivation of the plaintiff’s constitutional rights. Bryan
, 520 U.S. at 403.

The plaintiff’s claim is that the school
board’s facially lawful decision to retain Crute as a teacher
after the Kirman investigation and not to take special
precautions to prevent future improper conduct by him caused a
violation of her constitutional rights. She relies primarily upon
the 1988-89 videotaping of team members, the school’s
"progressive discipline" policy, its allegedly
inadequate investigation of those incidents, and its conduct
following the investigation.

The school board responds that, as a matter of
law, these matters of Crute’s conduct prior to the secret
videotaping were insufficient to establish the necessary
violation of a duty to the plaintiff and a causal connection
between the board’s conduct and the subsequent deprivation of the
plaintiff’s federal rights. We agree with the school board.

In Bryan County, a sheriff’s facially
lawful decision to hire a deputy sheriff without proper
investigation of his background was claimed to have caused a
violation of the plaintiff’s ? 1983 rights when the deputy
sheriff assaulted her upon her arrest.
[2] 520 U.S. at
399-400. In reversing the lower courts’ affirmation of a jury’s
verdict against the county for such alleged violations, the Court
noted that ? 1983 does not impose liability on a county
under traditional employer-employee relationships with an
employee tortfeasor. Instead:

[a] plaintiff must also demonstrate
that, through its deliberate conduct, the
municipality was the "moving force" behind the
injury alleged. That is, a plaintiff must show that the
municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of
federal rights

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

Thus, although a governmental body may have
been negligent in regard to the plaintiff’s federal rights, in
order to show that it "caused" the violation of those
rights, "[a] plaintiff must demonstrate that [the
governmental] decision reflects deliberate indifference to
the risk that a violation of a particular constitutional or
statutory right will follow the decision." 520 U.S. at 411.
And, the required "’deliberate indifference’ is a stringent
standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action."
520 U.S. at 410.

Reasonable persons might conclude that Crute
should have been discharged or more carefully monitored after the
Kirman investigation. However, in our opinion, the evidence is
insufficient to support a conclusion by reasonable persons that
the above-described school board actions reflected the required
deliberate indifference to the risk that he would violate the
plaintiff’s ? 1983 rights in the manner alleged. Therefore,
we hold, as a matter of law, that the school board did not cause
the violation of the plaintiff’s ? 1983 rights.

Accordingly, we will reverse the judgment of
the trial court against the school board and enter final judgment
here for the school board.

Reversed and final judgment.



[1] Apparently, those three officials were not in office at
the time of the acts giving rise to the alleged ? 1983

[2] Bryan County stipulated that the sheriff was the final
"decisionmaker" for the county in the hiring matter. As
such, the Court held that his actions fairly could have been
treated as actions of the county. Bryan County, 520 U.S.
at 403-04.