Hackett v. Fulton County School District (238 F. Supp. 2d 1330, 2002)

ORDER

CARNES, District Judge.

The above-captioned action is before the Court on plaintiffs partial Motion for Summary Judgment [34], defendants Fulton County School District and Marquis Jones’s Motion for Summary Judgment [35], and defendants Fulton County School District and Marquis Jones’s Notice of Objection and Motion to Strike Affidavits [44].

The Court has reviewed the record and the arguments of the parties and, for the reasons set forth below, concludes that plaintiffs partial Motion for Summary Judgment [34] should be GRANTED, defendants Fulton County School District and Marquis Jones’s Motion for Summary Judgment [35] should be GRANTED, and defendants Fulton County School District and Marquis Jones’s Notice of Objection and Motion to Strike Affidavits [44] should be DENIED.

FACTS

This case involves improper conduct by a high school teacher towards the plaintiff, one of his former students. Plaintiff Melvin Hackett is a 1999 graduate of Westlake High School in Fulton County, Georgia, where defendant William Kreil was a science teacher at the time plaintiff attended the school. When plaintiff was in the eleventh grade, during the 1997-1998 school year, defendant Kreil arranged for plaintiff and other students to come to his home on several occasions under the pretense of a bogus “scholarship program.” One evening, when plaintiff was at defendant Kreil’s home, the plaintiff was told he would be taking part in an experiment that required him to disrobe, put on a blindfold, and allow himself to be touched by an unknown person.

Although the plaintiff told no one about this experience at the time, defendant Kreil’s bogus “scholarship program” and his inappropriate conduct towards students was brought to the attention of administrators, who later conducted an investigation into Kreil’s conduct. Defendant Kreil ultimately resigned his position at Westlake and pled guilty to three separate criminal charges, including sexual assault against a person in custody, and is currently serving his sentence at Arrendale State Prison in Alto, Georgia.

Plaintiff filed the Complaint in this action on January 26, 2001. He has asserted claims under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., (“Title IX”); 42 U.S.C. § 1983 (“Section 1983”); and state law claims of negligence, negligent hiring, retention, and supervision, assault and battery, intentional infliction of emotional distress, and false imprisonment, against Fulton County School District, Marquis Jones, individually and in his official capacity as Principal of Westlake High School, and William Kreil, individually and in his official capacity as a teacher at Westlake High School. Plaintiff claims that defendant Kreil, acting under color of state law, violated his constitutional and statutory rights, and that Principal Jones and the Fulton County School District were aware of defendant Kreil’s improper conduct towards students but acted with deliberate indifference to the plaintiffs rights in failing to prevent Kreil’s conduct toward the plaintiff.

Unless otherwise indicated, the Court draws the undisputed facts from Defendants’ “Statement of Undisputed Material Facts” (“SMF”) [35]. If, however, plaintiff has disputed any of those facts, the Court has viewed all evidence and factual inferences in the light most favorable to plaintiff, as required on a defendant’s motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir.1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir.1993). Accordingly, the following facts are viewed in the light most favorable to plaintiff, and are assumed true only for the purposes of this discussion.

From 1995 through 1999, the plaintiff, Melvin Hackett, was a student in the math and science magnet program at Westlake High School, which is part of the Fulton County School District. (SMF at ¶ 1.) On or about May 10, 1995, defendant William Kreil applied for employment with the Fulton County School District, and was hired to be a science teacher at Westlake High School. (Id. at ¶¶ 2-3.) When he applied for employment, Kreil submitted a packet of information including an application, three references, his college and graduate school transcripts, his Louisiana and Georgia teaching certificates, his test scores, and an explanation of two incidents that he believed would appear on any criminal investigation report. (Id. at ¶ 4.) Kreil’s application was reviewed and he was interviewed for a position at Westlake High School. (Id. at ¶ 5.) After a hire recommendation was received from the principal, Kreil’s application was reviewed again, the school district obtained additional references, confirmed Kreil’s teaching certifications, and ran a criminal background check. (Id. at ¶ 5.)

Although the school district’s background check did not reveal any previous charges or allegations against Kreil for misconduct involving students, there is no dispute that defendant Kreil failed to provide a complete and accurate picture of his employment history on his employment application with FCSD, and that he failed to disclose that he had been asked to resign from teaching positions at several schools in both Louisiana and Georgia because of allegations of improper conduct with minor students. (See Kreil Dep. at 5-45; Pl.’s Resp. To Defs. SMF [“PI. SMF”] [38] at ¶ 4.) It is further undisputed, however, that, at the time Kreil was hired to teach at Westlake, FCSD was not aware that Kreil had been accused of improper conduct toward students in the past. (Defs. Reply to PL SMF [43] at ¶ 3.) The plaintiff contends, however, that the defendants failed to conduct a more thorough investigation of Kreil’s background, and that, had they done so, their investigation might have revealed that Kreil had failed to disclose an accurate picture of his employment history and had failed to disclose that he had been accused of misconduct toward students in the past. (PL SMF [38] at ¶¶ 4-5.)

Plaintiff had defendant Kreil as his science teacher at Westlake H.S. in the ninth, eleventh, and twelfth grades. (SMF at ¶ 3.) In June, 1997, an incident involving Kreil was reported to school officials by another student. (Id. at ¶ 6.) Specifically, the student alleged that Kreil had asked her to make a telephone call to another teacher at the school, Todd Green, and to tell Green that if Green did not assist Kreil as he had promised, that Kreil might commit suicide. (Id. at ¶ 6; Souder Dep. at 12-13.) The school district assigned Linda Souders, Director of Procurement and Certification, to investigate this incident, and she discovered that Kreil and Green were involved in some sort of personal relationship, but Green did not want to elaborate on the specific nature of the relationship. (Id.) Souders reported the results of her investigation to Dr. Ernest Lavender, the Assistant Superintendent for Human Resources, who told her to ask Green if he wanted to file any formal complaint against Kreil, and Green told Souders that he did not wish to do so. (Id. at ¶ 7; Souders Dep. at 14-15.)

Defendants contend that, other than the incident involving Todd Green, there were no further complaints about defendant Kreil from 1995 through some time in early 1999. Further, during his second year at Westlake, Kreil was voted teacher of the year and was the school’s “Star Teacher.” (SMF at ¶ 8.) Although plaintiff disputes that there were no other reported problems involving defendant Kreil, he has failed to present any evidence of any other reports or complaints made about Kreil’s behavior toward students before 1999. (See PI. SMF at ¶ 8.)

During the plaintiffs eleventh grade year, in the fall of 1997, defendant Kreil approached him with what Kreil described as a scholarship opportunity. (SMF at ¶ 9; Hackett Dep. at 27, 30, 37.) Kreil told plaintiff of a possible $100,000 scholarship sponsored by Georgia Tech, informed him that there would be several groups competing for the scholarship, and asked plaintiff if he wanted to participate in the scholarship competition. (SMF at ¶ 9.) Based on Kreil’s representations about the purported scholarship program, a group of five male students, including plaintiff, was brought together to participate in the scholarship competition. (See id. at ¶ 10.) Plaintiff and another student were chosen as the group leaders. (Haekett Dep. at 26, 31.) Plaintiff was told not to discuss the scholarship program with any other teachers or administrators at the school and was told that the scholarship was only for specially chosen students and that no one else needed to know about it. (SMF at ¶ 10.) Kreil presented the plaintiff and the other members of the group with materials indicating that the program was sponsored by the Morgan Scholarship Fund, although, in reality, there was no such fund and no scholarship. Instead, the entire fictitious program had been created by defendant Kreil. (Id.)

The first project that Kreil assigned to the group as part of the alleged scholarship program involved a study of metabolism. (Haekett Dep. at 33.) The group was told to keep a logbook of their daily activities and they were asked to conduct research, which was usually done at Kreil’s home. (Id. at 33-36.) According to plaintiff, Kreil told the group that “Robert,” the person whom Kreil claimed was his contact person at the scholarship program, insisted that the group conduct their research at Kreil’s house, because the group received more points for their work when it was done with Kreil. (Id. at 33, 37.) The first project took the group approximately two months to complete, during which time they went to Kreil’s house an average of once or twice per week. (Id. at 43, 51.) Plaintiff told his mother that he was participating in a scholarship program, but he did not tell her specifically what was involved in the project, nor did he tell her that he was doing most of the work on the project at Kreil’s home. (Id. at 43-45.)

The second project that Kreil assigned to the group involved learning about and counting the vertebrae in the spinal column. (SMF at ¶ 15.) Specifically, the group was told that they needed to know how to count the vertebrae starting from the neck all the way down the back. (Id.) This project was also done at Kreil’s home, and Kreil again gave the group material for the project that indicated that it was from the Morgan Scholarship Fund. (Id.) During this second project, Kreil demonstrated how to count the vertebrae in the back by pulling up some of the students’ shirts and demonstrating. (Id. at ¶ 16.) Plaintiff thought that Kreil’s behavior was inappropriate, although Kreil did not touch the plaintiff and did not physically count the plaintiffs vertebrae at that time. (Id.) Kreil attemptéd to touch plaintiff in order to count his vertebrae, but plaintiff, as well as other students, refused to allow him to do so. (Id. at ¶ 17; Haekett Dep. at 57-58.)

Shortly after plaintiff and the other students refused to allow Kreil to touch him for the professed purpose of counting his vertebrae, in or around December, 1997, Kreil told the group that their participation in the scholarship program was over, because they failed to complete their assignment. (SMF at ¶ 18.) Later, however, Kreil told the group that the person in charge of the scholarship fund had given the group a second chance and, therefore, they would be allowed to participate further in the program. (Id.)

In or around January, 1998, when the plaintiff returned to school after the winter break, he was informed by Kreil that he had to “qualify” as the group leader to participate further in the scholarship program. (Haekett Dep. at 68-69.) As part of the “qualification” process, the plaintiff was told he had to go to Kreil’s house to participate. (Id. at 70.) - After plaintiff arrived at Kreil’s house, which was on a Thursday evening, Kreil told him that the people who would be doing the project would be arriving an hour later. (Id.) Kreil told him that a male doctor and/or a female doctor would come into the bedroom where the plaintiff was waiting, and that plaintiff would be blindfolded. (Id.) Then each doctor would touch the plaintiff and, afterwards, the plaintiff would be asked to guess the sex of each doctor who touched him. (Id.) Although the plaintiff was shocked when Kreil described the “qualification” process, he did not say anything to Kreil because he was alone at Kreil’s house in Woodstock, Georgia, many miles from his own home. (See id. at 71.)

While the plaintiff was with Kreil in a back room of his house, the doorbell rang, but plaintiff never met any of the alleged “doctors” who were purportedly taking part in the “qualification” process. (Id. at 73.) Kreil told plaintiff to go into the bedroom and to put a towel over his eyes as a blindfold. (Id. at 74-75.) After there was a knock at the door, a person entered the room and proceeded to touch the plaintiff, although the plaintiff never removed the blindfold and thus did not see the person who touched him. As the procedure was done in complete silence, the plaintiff did not hear any voices. (Id. at 75.)

The plaintiff described this “qualification” procedure as follows:

They would go down the back of my neck and go all the way down to my— like my calf and then come around the front part like up my shin to my knee, then to my midseetion all the way up to my chest. And then they would do it with my shirt on and then just like my boxer shorts and a T-shirt and then the last time completely nude.

(Hackett Dep. at 76.) Plaintiffs genitals were touched during this procedure. (Id.) Plaintiff stated that the entire procedure was repeated three times, with three different knocks on the door, and he would put his clothes back on in between each incident. (Id. at 74-75.) Although he was told that there were three different people participating, he never heard any voices, never heard anyone enter or leave the house, never heard any cars arriving or leaving. (Id. at 77.) The entire incident lasted about ten to fifteen minutes. (Id. at 75.) Afterwards, Kreil instructed him to write down on a piece of paper the gender of each person who touched him. (Id. at 74.)

After the “qualification procedure,” the plaintiff spent the night at Kreil’s house and slept in a guest bedroom across the hall from Kreil. (Id. at 79.) Kreil asked the plaintiff to sleep in his bedroom, but the plaintiff declined to do so. (Id.) Although the plaintiff states that he was very upset after the incident, and suspected that Kreil himself was the only person who had been doing the touching, he said nothing to Kreil because

I didn’t feel comfortable. I didn’t know what was going on. I was in his household not knowing what could happen to me, and I was just terrified. But I couldn’t say anything because I knowed that I was in Woodstock where I couldn’t reach anyone or what could happen to me.

(Id. at 77, 80.) Plaintiff never reported this incident to his parents, any teachers or administrators at Westlake High School or anyone else, until the school district interviewed the plaintiff in connection with an investigation into allegations made by another student against Kreil in the spring of 1999. (SMF at ¶ 21; Hackett Dep. at 133,170.)

After the “qualification” procedure, the plaintiff continued to work on various “projects” with Kreil through the fall of his senior year and went to Kreil’s house on at least a few occasions, but there were no further incidents of inappropriate touching that the plaintiff could recall. (Hackett Dep. at 81-85.) The plaintiff never spent the night at Kreil’s house again after the “qualification” procedure, and the last time he recalled being at Kreil’s house was in late 1998, in the fall of his senior year. (Id. at 86.)

In March, 1999, during the spring of plaintiffs senior year at Westlake, a West-lake student, not plaintiff, reported having problems with defendant Kreil to one of the school’s counselors. (SMF at ¶ 23.) This student told the counselor, the assistant principal, and the principal of West-lake about the bogus scholarship program and the inappropriate touching done by Kreil. (Id.) Upon learning of these allegations, defendant Marquis Jones, the principal of Westlake High School, called the school district’s central office and spoke with Dan Cochran, Executive Director of Personnel. (Id.) Cochran told Jones to get Kreil out of his class and have him wait for Cochran to arrive at the school. (Id.) Cochran arrived at the school within thirty minutes, spoke to Kreil and reassigned him to his home pending further investigation into the allegations against him. (Id.)

The school district began an investigation into the allegations against Kreil, but, within ten days, Kreil submitted his letter of resignation. (Id. at ¶ 24.) The school district continued its investigation and made a report to the Georgia Professional Standards Commission, the body that oversees teacher certification. (Id.) Furthermore, at some point during the investigation, the Cherokee County Police Department became involved, because Kreil resided in Cherokee County and most of the allegations concerned activities that had taken place at Kreil’s home. (Id.) The police investigation resulted in criminal charges being filed against Kreil. (Id.) Ultimately, Kreil pled guilty to three of the six charges filed against him, and is currently serving out his sentence at Ar-rendale State Prison in Alto, Georgia. (Id.)

Plaintiff filed the Complaint in the instant action on January 26, 2001 against the Fulton County School Board, Marquis Jones, individually and in his official capacity as Principal of Westlake High School, and William Kreil, individually and in his official capacity as a former teacher at Westlake High School. Plaintiff has asserted two separate federal claims under Title IX and Section 1983, and various state law claims against the defendants.

On November 30, 2001, plaintiff filed a partial Motion for Summary Judgment [34] against defendant Kreil on plaintiffs state law claims of assault and battery, intentional infliction of emotional distress, and false imprisonment. On that same day, the Fulton County School District and defendant Jones (the “School District defendants”) jointly filed a Motion for summary judgment [35] on all of plaintiffs claims against them. Both of these motions are currently pending before the Court, along with a Motion to Strike Affidavits [44] filed by the School District defendants.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party’s case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. 2548.

The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323, 106 S.Ct. 2548; Apcoa, Inc. v. Fidelity Nat’l Bank, 906 F.2d 610, 611 (11th Cir.1990). The movant is not required to negate his opponent’s claim, however. The movant may discharge his burden by merely “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. After the movant has carried his burden, the nonmoving party is then required to “go beyond the pleadings” and present competent evidence, including affidavit and deposition testimony, answers to interrogatories, and other such evidence, designating “ ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e)). While the court is to view all evidence and factual inferences in a light most favorable to the nonmoving party, Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988), “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis added).

A fact is material when it is identified as such by the controlling substantive law. Id. at 248, 106 S.Ct. 2505. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 249-50, 106 S.Ct. 2505. The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is “merely colorable” or is “not significantly probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Thus, to survive a motion for summary judgment, the nonmoving party must come forward with specific evidence of every element material to that party’s case so as to create a genuine issue for trial.

II. Motion to Strike

In support of his response to defendants’ Motion for Summary Judgment, plaintiff has submitted affidavits from himself and from Rosetta Riddle, the mother of another student involved in the bogus scholarship program. The School District defendants have filed a Notice of Objection and Motion to Strike [44] these two affidavits. They argue that plaintiffs affidavit directly contradicts his deposition testimony, and must therefore be disregarded by the Court, and that Riddle’s Affidavit contains information not based on personal knowledge but based on hearsay and speculation.

Defendants first argue that the plaintiffs affidavit should be struck from the record because it contradicts his earlier deposition testimony regarding the specific dates that the events at issue in this action took place. As noted above, the plaintiffs testimony concerning the dates on which the events happened is in conflict and, during his deposition, he became quite confused about some of the relevant dates. (See note 1, supra.) Plaintiff initially stated that he was first approached by Kreil in the fall of his junior year, in August or September, 1997, and the “qualification” procedure took place shortly after he returned from the winter break, in January, 1998. (Hackett Dep. at 25, 37, 43, 68-69.)

Later in the deposition, the plaintiff was confronted with his handwritten statement that he gave to school officials during the investigation into the allegations against Kreil, in which the plaintiff stated that the scholarship group first started in May, 1998, which would have been at the end of the plaintiffs junior year. (See Hackett Dep., Ex. 2.) The plaintiff then expressed confusion about the actual dates and stated that he might be wrong about when some of the events happened. (See id. at 96-98.) Thus, far from being “clear and unambiguous” testimony, the plaintiffs deposition testimony is not at all clear about the dates at issue. At one point, he claimed that the dates in his written statement were wrong, and then, a few minutes later, he claimed that the dates in his written statement were actually correct and his earlier deposition testimony was wrong. (Id. at 96, 98.) Complicating matters, the attorney questioning the plaintiff became confused about the relevant dates as well, and placed some of the events in late 1999, which would have been after the plaintiff had graduated from Westlake. (See id. at 86.)

In his affidavit submitted in connection with his response to Defendants’ Motion for Summary Judgment, the plaintiff states again that Kreil first approached him about the bogus scholarship program in the fall of his junior year, in August or September, 1997, and that the “projects” continued throughout his junior year. (Hackett Aff. at ¶¶ 2-6.) Defendants argue that this affidavit contradicts his earlier deposition testimony and thus should be struck from the record as a “sham” affidavit. The Court concludes that, contrary to defendants’ argument, plaintiffs affidavit is consistent with much of plaintiffs deposition testimony. It was only when the plaintiff was asked to explain the discrepancy between his deposition testimony and his earlier written statement that plaintiff expressed confusion over the dates at issue.

In any event, defendants have failed to explain how plaintiffs confusion over the specific dates at issue are at all material to the issues in this action, so as to make the affidavit a “sham” attempt to create a genuine issue of fact. Whether Kreil first approached the plaintiff in the fall of 1997 or the spring of 1998 does not affect the issue of defendants’ liability. It is undisputed that Kreil created a fictitious scholarship program in order to lure the plaintiff and other students to his home, where Kreil took advantage of plaintiffs trust by tricking and fondling the young man. Whether he did so in January of 1998, in May of 1998 or on another date does not appeal’ to be material to the resolution of the pending motions for summary judgment. Accordingly, defendants’ Motion to Strike [44] is DENIED with respect to the plaintiffs affidavit.

Defendants next argue that the affidavit of Rosetta Riddle should be struck from the record because it does not meet the standards of Rule 56(e). Defendants argue that Riddle’s affidavit contains information clearly not based on Riddle’s personal knowledge and instead based on hearsay and speculation.

Rule 56(e) states, in relevant part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Fed. R. Civ. P. 56(E). In her affidavit, Riddle states that it was her “understanding” and her “impression” that Kreil’s activities with respect to the fictitious scholarship program were conducted through the school and that it was further her “understanding” that a group of students complained to Principal Jones about their treatment in Kreil’s class. (Riddle Aff. at ¶¶ 10-11.) Defendants argue that Riddle’s “understanding” and “impression” of events in which she did not actively participate are clearly not based on her personal knowledge and are based on speculation and hearsay.

Defendants are correct that the Court may consider only admissible evidence when deciding a summary judgment motion. Moreover, the Court agrees with defendants that some of the events described in Riddle’s affidavit could not be based on her personal knowledge, as she did not participate in the events nor was she present when they occurred. In any event, although the affidavit at issue here does appear to contain at least some information based on hearsay that would be inadmissible at trial, the Court has reviewed the affidavit and has concluded that none of the purported evidence contained therein is material to the resolution of the pending motions. Furthermore, much of Riddle’s affidavit is merely cumulative of other evidence in the record. Accordingly, the Court will not strike Riddle’s affidavit from the record, but will consider only those portions of the affidavit containing material information that is based on the affiant’s personal knowledge.

Accordingly, defendants’ Motion to Strike the Affidavits of Melvin Hackett and Rosetta Riddle [44] is DENIED.

III. Title IX

Plaintiffs first claim is brought pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (“Title IX”). Title IX provides, in relevant part, that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Plaintiff has brought this claim solely against defendant Fulton County School District (“FCSD”) as the education program that is the recipient of federal funds. (Amended Cpt. [21] at ¶ 36.) Plaintiff alleges that he was subjected to discrimination and harassment because of his sex by defendant Kreil and that the FCSD is liable under Title IX for failing to prevent such harassment.

The Supreme Court has held that Title IX is enforceable through an implied right of private action. Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Furthermore, the Supreme Court has held unequivocally that Title IX places on public school systems the duty not to discriminate against students on the basis of sex and the duty to protect students from intentional discrimination, including sexual harassment or abuse, by teachers. Franklin v. Gwinnett County Public Sch., 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). Accordingly, a student alleging that a school district has violated Title IX may recover monetary damages against the school district under Title IX. Id. at 76, 112 S.Ct. 1028.

Nevertheless, although a school district may be liable under Title IX for sexual harassment or abuse by a teacher against a student, in order to hold the school district liable, the plaintiff must establish that an official of the school district with authority to institute corrective measures on the district’s behalf had actual notice of the teacher’s misconduct and thereafter was deliberately indifferent to that conduct. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). School districts are not liable for the misconduct of teachers under a theory of respondeat superior or constructive notice. Id. at 285, 118 S.Ct. 1989.

The Supreme Court reasoned that Title IX required that a school district have actual notice of the misconduct and be given an opportunity to remedy the situation before any administrative action may be taken against it. Similarly, the district must be afforded the same opportunity before monetary damages may be assessed against it as well. Id. at 289-290, 118 S.Ct. 1989.

Because the express remedial scheme under Title IX is predicated upon notice to an “appropriate person” and an opportunity to rectify any violation, we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines. An “appropriate person” under § 1682 is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination. Consequently, in cases like this one that do not involve official policy of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.

Id. at 290, 118 S.Ct. 1989 (citations omitted).

Based on the express holding in Gebser, the Court concludes that plaintiff has failed to present sufficient evidence to establish that FCSD is liable to plaintiff under Title IX for the misconduct of defendant Kreil. Therefore, FCSD is entitled to summary judgment on plaintiffs claim in Count One of the Complaint. A review of the facts in Gebser illustrates that plaintiff in the instant action has failed to surmount this burden of establishing actual notice of Kreil’s misconduct by an appropriate person at FCSD.

In Gebser, the plaintiff had been an eighth grade student at a middle school in the defendant school district in the spring of 1991 when she joined a book discussion group led by a male teacher at the high school. Id. at 277, 118 S.Ct. 1989. During the book discussion sessions, the teacher often made sexually suggestive comments to the students. Id. Later that fall, the plaintiff entered high school and was assigned to classes taught by the same teacher who had led the book discussion sessions. Id. at 277-278, 118 S.Ct. 1989. He continued to make inappropriate remarks to the students in his class, and began to direct some of his more suggestive comments to the plaintiff. Id. at 278, 118 S.Ct. 1989. In the spring of 1992, the teacher initiated sexual contact with the plaintiff and the two had sexual intercourse on a number of occasions for the remainder of the school year, through the summer, and into the following school year. Id.

Although the plaintiff never reported the relationship to school officials, in October, 1992, the parents of other students complained to the high school principal about the teacher’s sexually inappropriate comments made during class. Id. The principal met with the teacher, who denied making offensive remarks, but apologized to the parents and said it would not happen again. Id. The principal advised the teacher to be more careful about his classroom comments and, although the principal told the school guidance counselor about the meeting, he did not report the parents’ complaint to the school district’s superintendent. Id.

A few months later, in January, 1993, a police officer discovered the teacher and the plaintiff having sex and arrested the teacher. Id. The school district terminated the teacher’s employment and his teaching certificate was subsequently revoked by the Texas Education Agency. Id. Thereafter, the plaintiff filed a private action for damages against the school district for failing to - prevent the teacher’s conduct toward her, pursuant to both Title IX and Section 1983, as well as state law claims of negligence. Id. The district court granted summary judgment to the school district on all of plaintiffs federal claims, and remanded the claims against the teacher to state court. Id. at 279, 118 S.Ct. 1989. The district court reasoned that Title IX was enacted to counter policies of sex discrimination, and the school district could not be found to have a policy of discrimination unless it had actual notice of the misconduct by the individual teacher and failed to remedy the problem. Id.

The plaintiff appealed the grant of summary judgment to the school district on the Title IX claim, and both the Fifth Circuit Court of Appeals and the Supreme Court affirmed the decision of the district court that actual notice was required before a school district would be liable to a student for sexual harassment or sexual misconduct by a teacher. Id. As the Fifth Circuit reasoned, if school districts were to be held vicariously liable for the misconduct of teachers under a theory that the teacher is aided in accomplishing the misconduct “by the existence of the agency relation,” then the application of that principle would result in school district liability in essentially every case of teacher-student harassment. Id. at 280, 118 S.Ct. 1989; see Doe v. Lago Vista Indep. Sch. Dist., 106 F.3d 1223, 1225-1226 (5th Cir.1997).

The Eleventh Circuit has provided further guidance on the appropriate standard for holding school districts liable for the sexual misconduct of a teacher toward a student after Gebser. In Davis v. DeKalb County School District, 233 F.3d 1367 (11th Cir.2000), the Eleventh Circuit affirmed the district court’s granting of summary judgment to a school district on claims brought by three students pursuant to Title IX and Section 1983. The three students alleged that they had been victims of sexual molestation by the same teacher at Knollwood Elementary School in DeKalb County and alleged that the school district and principal of Knollwood had been deliberately indifferent to their rights, because another student had previously complained that the teacher had touched her inappropriately, but the principal had failed to take any action against the teacher. Id. at 1372-1373. The other student had complained that she had felt the teacher “touch [her] behind” during a touch football game, and that later he had tried to touch her again at a water fountain after the game. Id.

The district court granted summary judgment to the school district and principal, and the Eleventh Circuit affirmed, finding that the complaint by the other student had not provided actual notice to the principal that the teacher was sexually molesting the plaintiffs. Id. at 1373 (“We agree with the district court that a complaint of an incidental touching during an athletic event and a perceived imminent touching could not, as a matter of law, apprise Defendants to the possibility that [the teacher] was sexually molesting Plaintiffs.”). Moreover, the court held that the principal had not acted with deliberate indifference when confronted with the other student’s complaint and had promptly investigated the incident and forbade the teacher from being alone with the complaining student or any other female student. Id. at 1373-1374.

Based on the holdings in Gebser and Davis, the Court must conclude that plaintiff in the instant action has failed to present sufficient evidence that an appropriate person at FCSD had actual notice that Kreil was behaving inappropriately with plaintiff or any other student, and failed to remedy the problem. Indeed, the undisputed evidence reflects that immediately after receiving a complaint from a student that Kreil was conducting a bogus scholarship program and behaving inappropriately towards students, Principal Jones called Dan Cochran at the FCSD central office, who advised Jones to remove Kreil from the classroom and have him wait for Cochran to arrive at the school. Cochran arrived at Westlake shortly thereafter, and reassigned Kreil to his home pending an investigation into the allegations. Kreil resigned a few days later and was subsequently prosecuted for his conduct towards plaintiff and the other students involved in the fictitious scholarship program.

It is undisputed that the plaintiff never told anyone about the “qualification” procedure that he endured at Kreil’s house until he was questioned during the course of the investigation into another student’s complaints about Kreil in the spring of 1999. Nevertheless, the plaintiff argues that defendant Jones, the principal of Westlake High School, had actual notice that Kreil was sexually harassing the plaintiff before the other student complained in March, 1999. He further argues that defendant Jones was an appropriate person with authority to act on behalf of the school district. Plaintiff contends that the school district had actual notice of Kreil’s propensity for misconduct based on two events. First, plaintiff contends that the school district was on notice because another student had previously complained that Kreil had asked her to relay an inappropriate personal message to another teacher at the school, thus providing constructive notice to the school district that Kreil had a propensity to harass younger males. Second, plaintiff contends that Jones had actual notice of Kreil’s misconduct because he had been informed that students were meeting at Kreil’s house for an alleged “scholarship program,” although the scholarship program had not been approved by the school, yet Jones failed to investigate further the nature of this “scholarship program.”

Defendants contend that Jones, as principal of Westlake High School, did not have the authority to fire Kreil and, thus, could not be considered an “appropriate person” under the Supreme Court’s holding in Gebser. The Court will assume, arguendo, without deciding, as the Eleventh Circuit assumed in Davis, that a principal could be considered a supervisory official with authority to take corrective action on behalf of the school district. See Davis, 233 F.3d at 1372. The Court nevertheless concludes that neither of these incidents proffered by plaintiff was sufficient to put Jones or any other official with the school district on actual notice that Kreil was sexually harassing the plaintiff or any other student.

First, the Court addresses the contention that the previous complaint about Kreil and his alleged involvement with Todd Green put the school district on actual notice that Kreil had a propensity to commit sexual misconduct against students. Although the evidence is in conflict regarding exactly what occurred between Kreil and Green, it is undisputed that, in June, 1997, a student reported an incident in which Kreil asked her to relay a message to another teacher at Westlake High School, Todd Green. Viewing the evidence in the light most favorable to plaintiff, the evidence reflects that Kreil told the student to tell Green that if Green did not come to Kreil’s house, Kreil was going to commit suicide. (See Souders Dep. at 13.) Green was approximately 21 years old at the time, and had just graduated from college, while Kreil was approximately 46 years old. (Id. at 14; see Kreil Dep. at 3.)

The school district assigned Linda Soud-ers, Director of Procurement and Certification, to investigate this incident, and she discovered that Kreil and Green were involved in some sort of personal relationship, but Green was too embarrassed to reveal the details of the relationship to Souders. (Souders Dep. at 13.) He said that it involved some “special project” that Kreil told him he would be paid to participate in and that the project involved medicines and reactions. (Id.) Souders reported the results of her investigation to Dr. Ernest Lavender, the Assistant Superintendent for Human Resources, who told her to ask Green if he wanted to file any formal complaint against Kreil. Green responded that he did not wish to do so. (Id. at 14-15.) Souders later spoke with Kreil about the incident to inform him of the report made about it, but there is no evidence that any formal action was taken against Kreil by the school district. (See id. at 18-19.)

The Court rejects plaintiffs contention that this incident placed the school district on actual notice that Kreil had a propensity to commit sexual misconduct against students. First, Todd Green was a teacher, not a student. Although the evidence reflects that Green was considerably younger than Kreil and, at the time of the incident in question, was just out of college, it is still undisputed that Green was a teacher, not a student. Thus, even if the evidence could be construed as placing the school district on notice that there was a peculiar relationship between Kriel and Green, a teacher’s harassment of another teacher can not be considered sufficient to put the principal on notice that the teacher may be committing sexual misconduct against students. Cf. Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (the principal’s notice of a teacher’s sexually suggestive comments to students in class does not equate to notice that the teacher might be sexually molesting a student).

Moreover, the details of the relationship between Green and Kreil were very unclear, as Green specifically stated that he did not want to file a complaint against Kreil. Although Souders knew that something was not “kosher” about the relationship, Green refused to tell her much more about the “special project” that he and Kreil were involved in, other than that it involved medicines and reactions. (See Souders Dep. at 19.) Based on such limited information, the school district could not be imputed as having “actual notice” that Kreil was sexually harassing or abusing Todd Green. In sum, based on Green’s refusal to file a complaint and the school’s lack of knowledge of exactly what had transpired between Kreil and Green, the school district argues that there was little it could do to reprimand Kreil. Although a school district has a duty to protect its students from harassment by teachers, its obligations and responsibilities are far different with regard to a personal relationship between two adult teachers.

In addition to the complaint involving Todd Green, plaintiff further contends that Jones was placed on actual notice of Kreil’s misconduct because Jones was informed that Kreil was engaged in some sort of “scholarship program” that involved bringing students to his house, yet Jones knew or should have known that the alleged scholarship program had not been approved by the school. The evidence is disputed as to the extent of Jones’s knowledge about the purported scholarship program. Even viewing all evidence in the light most favorable to plaintiff, however, it reflects at most that Jones was negligent in ignoring warning signs that Kreil was involved in a scholarship program of dubious origins. Plaintiff has presented no evidence that Jones had notice that this purported “scholarship program” involved touching students inappropriately or sexual misconduct of any kind.

Plaintiff contends that Jones had knowledge of the purported scholarship program because both Kreil and Rosetta Riddle, a parent of one of the other students involved, informed Jones about the program. Kreil stated during his deposition that Jones was aware that Kreil occasionally had students meet with him in his home for various reasons, including the science fair, field trips, and other school functions. (Kreil Dep. at 168.) Kreil described his conversations with Jones about the alleged scholarship program as follows:

Q. Do you specifically recall talking to him [Jones] about the project?

A. The reason I say that is because I was there so many evenings for so many different things and I always had to go to him to get permission for the air-conditioning to be turned on in our building or in our wing later in the evening. He may have asked me, you know, what are you doing tonight, and I may have answered him that way. I didn’t specifically divulge any details to him at all.

Q. But you wouldn’t have been doing any of the scholarship work at the school?

A. No, but I know the night I met with the parents was in my classroom.

Q. Can you recall what you might have told him about that meeting?

A. That I’m having a meeting with the parents of kids working on the scholarship.

Q. Nothing more than that?

A. No.

Q. Would he have ever known that any of this work was done at your house?

A. Yes.

Q. He did know that work was done at your house?

A. I was in charge of the science fair. And not just these people but people would come by for computer work, things we couldn’t do at the school that my computer was capable of doing and generating. A lot of times I took it home and did it and brought it back to them. Sometimes you didn’t know what they wanted and you have to change it around.

Q. Did Mr. Jones know you had students at your home on occasion?

A. When we went to the Vanderbilt debate tournament' — -I live on the north side of town. We had to be in Nashville at 7:00 o’clock in the morning. They went home with me from school. We got up at midnight and headed for Nashville.

Q. Did that have to be approved by the administration?

A. I asked Mr. Jones. Mr. Jones said okay as long as the parents said okay....

Q. Obviously there were no permission slips or anything like that for the scholarship program?

A. No. It wasn’t school related.

(Kreil Dep. at 168-170.)

Plaintiff claims that this evidence reflects that Kreil specifically informed Jones that he was bringing students to his home to work on a purported scholarship program and, therefore, Jones was on notice that Kreil was behaving improperly with students. The Court finds that Kreil’s testimony is at best ambiguous "with respect to whether he told Jones that he was bringing students to his home specifically for the purpose of participating in some sort of scholarship program. Viewing the facts in the light most favorable to plaintiff, however, and assuming that Kreil’s testimony could be construed as placing Jones on notice that students were coming to his home in the evenings to work on the scholarship program, the Court concludes that this knowledge does not equate to actual knowledge that Kreil was committing sexual misconduct against the students.

Plaintiff has further submitted the affidavit of Rosetta Riddle, the mother of one of the other students involved in the bogus scholarship program. According to Riddle, she learned during her son’s junior year at Westlake High School that Kreil had approached her son, as well as plaintiff and a few other male students interested in science and in possibly attending Georgia Tech, about a scholarship program sponsored by Georgia Tech and the National Science Foundation. (Riddle Aff. at ¶ 4.) Based upon her own investigation and research, Riddle could not find any information about the scholarship and, on an unspecified date, she allegedly approached defendant Jones “about the scholarship program and the lack of information on it.... Mr. Jones denied having any knowledge of the scholarship. He also never stated that he would inquire as to why a faculty member would conduct such a program without the school’s permission and further never indicated that anything would be done to remedy the situation.” (Riddle Aff. at ¶ 6.) Riddle also contends that students complained about Kreil exhibiting “favoritism” in his classroom towards certain students, although it is not clear how she would have personal knowledge of this alleged favoritism. (See id.)

In sum, plaintiff has presented evidence that Kreil mentioned the scholarship program to Jones on at least one occasion and that Rosetta Riddle had asked Jones for more information about the scholarship program on another occasion. The evidence is not clear as to how much information Riddle, herself, had about the bogus scholarship program, nor is the evidence clear regarding what specific information Riddle relayed to Jones. She states merely that she “approached” him about the program and the “lack of information” about it. In any event, even assuming that Jones was aware that Kreil was bringing students to his home in connection with an alleged scholarship program, and assuming that Jones was placed on notice by Riddle that the alleged scholarship program appeared to be suspicious in some way, plaintiff has shown at most that Jones was negligent in failing to investigate further into what was going on with the alleged scholarship program.

Plaintiff, in essence, argues that Jones should have known that something suspicious was going on and should have investigated further to find out what was happening at Kreil’s home during these research sessions. Obviously, in these deplorable incidents sexual misconduct by teachers, hindsight usually reveals that something more could have been done to prevent it or that perhaps clues were ignored or warning signs were not heeded. Second guessing is inevitable. Under the Supreme Court’s very clear holding in Gebser, however, it is not enough for the plaintiff to establish that Jones should have known, or could have known, or that he ignored warning signs, or that he simply was not diligent enough in investigating what appeared to be highly suspicious activity on the part of Kreil. The Supreme Court explicitly rejected the notion that constructive notice is sufficient to hold a school district liable under Title IX for the sexual misconduct of a teacher. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Plaintiff must establish that Jones, or another appropriate person with authority in the school district, had actual notice that Kreil was committing sexual harassment or abuse of a student and failed to remedy the problem. Plaintiff has not presented any evidence that Jones had such knowledge, and the FCSD is thus entitled to summary judgment on plaintiffs claim for damages pursuant to Title IX.

Accordingly, defendants’ Motion for Summary Judgment [35] is GRANTED with respect to plaintiffs claim brought under Title IX against the Fulton County School District, which is Count One of the Complaint.

IV. Section 1983

Plaintiffs second claim is brought against all defendants pursuant to 42 U.S.C. § 1983 (“Section 1983”). Plaintiff claims that defendant Kreil, acting under color of state law, violated his constitutional rights, and that Principal Jones and the Fulton County School District were aware of defendant Kreil’s improper conduct towards students but acted with deliberate indifference to the plaintiffs rights in failing to prevent Kreil’s conduct toward the plaintiff. Plaintiff seeks damages from all defendants for their violation of his constitutional and statutory rights.

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, 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, suit in equity, or other proper proceeding for redress ....

Thus, in order to establish a claim under Section 1983, plaintiff must show a violation of a right secured by the Constitution of the United States, and also that the deprivation of that right was committed by a person acting under color of state law. Cummings v. DeKalb County, 24 F.3d 1349 (11th Cir.1994); see also Graham v. Connor, 490 U.S. 386, 393-394, 109, S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“ § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred”) (internal quotes omitted) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)).

Plaintiff alleges that defendant Kreil, acting under color of state law, violated his substantive due process rights under the Due Process Clause of the Fourteenth Amendment when he sexually abused plaintiff, and that the School District defendants are also liable under Section 1983 because they acted with deliberate indifference in failing to prevent Kreil’s violation of the plaintiffs rights.

A. Does Plaintiff’s Title IX Claim Preempt a Section 1983 Claim?

Defendants first argue that plaintiff may not pursue his separate claims under Title IX and Section 1983 simultaneously. Defendants contend that plaintiff seeks to enforce his rights directly under Title IX, but only indirectly under Section 1983. Citing Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), defendants argue that Title IX preempts plaintiffs claim under Section 1983, which is based on the same allegations of misconduct. The National Sea Clammers doctrine precludes plaintiffs from bringing private actions pursuant to Section 1983 to enforce rights under specific federal statutes that have their own comprehensive enforcement mechanisms. Id. at 20-21, 101 S.Ct. 2615; see also Lillard v. Shelby County Bd. Educ., 76 F.3d 716, 722 (6th Cir.1996). Defendants argue that, under this doctrine, plaintiff may not maintain one claim under Title IX directly and a separate claim under Section 1983 to enforce his rights under Title IX.

Defendants are correct that, pursuant to the National Sea Clammers doctrine, the plaintiff may not maintain a separate claim under Section 1983 to enforce the specific statutory rights provided by Title IX. See Bruneau ex rel. Schofield v. S. Kortright Cent. Sch. Dist., 163 F.3d 749, 758 (2d Cir.1998). Plaintiff, however, asserts that he has brought his Section 1983 claim to enforce his constitutional rights under the Fourteenth Amendment, not to enforce his statutory rights under Title IX. Plaintiff argues that Kreil violated his liberty interest in his bodily integrity, as protected by the substantive prong of the Due Process Clause of the Fourteenth Amendment.

Several federal courts have recognized a “liberty” interest by a student in his “bodily integrity,” such that when a state actor, such as a public school teacher, violates that “bodily integrity,” a claim under the Fourteenth Amendment arises. See, e.g., Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 611 (8th Cir.1999) (minor student who had consensual sexual relations with her teacher stated a substantive Due Process claim to be free from bodily harm and sexual molestation); Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir.1998) (rape by police officer of woman stopped for traffic violation violated her Due Process right to intimate bodily integrity); Plumeau v. Sch. Dist. # 40, 130 F.3d 432, 438 (9th Cir.1997) (janitor whose touching of elementary school children constituted criminal sexual abuse also violated the children’s Due Process right to bodily integrity); Doe v. Claiborne County, 103 F.3d 495, 506 (6th Cir.1996) (where a 15 year old student had consensual sexual intercourse with her teacher, the panel noted that “every court of appeals that has had the opportunity to consider the issue has logically recognized that the right to be free from sexual abuse at the hands of a public school teacher is clearly protected by the Due Process Clause of the Fourteenth Amendment”); Doe v. Taylor Ind. Sch. Dist., 15 F.3d 443, 451 (5th Cir.1994) (minor student who was had consensual sexual intercourse with her teacher “clearly was deprived of a liberty interest recognized under the substantive due process component of the Fourteenth Amendment”); Stoneking v. Bradford Area Sch. Dist, 882 F.2d 720, 727 (3d Cir.1989) (student’s “right to bodily integrity under the Due Process Clause [encompasses] a student’s right to be free from sexual assaults by his or her teachers.”).

Furthermore, a constitutional liberty interest in “bodily integrity,” found by courts to inhere in the Fourteenth Amendment is presumably separate and distinct from the statutory right to be free from sex discrimination in federal programs provided by Title IX. See Lillard, 76 F.3d 716, 723 (6th Cir.1996); see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (“Our decision [regarding Title IX] does not affect any right of recovery that an individual may have against a school district as a matter of state law or against the teacher in his individual capacity under state law or under 42 U.S.C. § 1983.”).

Thus, the Court will assume that the statutory right to be free from discrimination on the basis of sex while participating in a federally funded program and the constitutional right to be free from a violation of one’s bodily integrity at the hands of a state actor are two distinct rights, even if the same conduct is asserted to support a claim on both grounds. Accordingly, the Court assumes that a plaintiff who has asserted a claim under Title IX is not necessarily precluded from also asserting a claim under Section 1983 for the deprivation of a constitutional right.

Finally, as noted above, plaintiffs Title IX claim is asserted solely against FCSD, while his Section 1983 claim is asserted against not only FCSD, but also against Jones and Kreil, in their individual capacities. Defendants have not presented any authority that would require dismissal of plaintiffs Section 1983 claims against Jones or Kreil, when he has not, and indeed, could not, pursue claims against them individually under Title IX.

Accord