Failure To Object Early On to Jury Instruction In Title IX Case Is Costly

Dec 1, 2005

The Third U.S. Circuit Court of Appeals has affirmed a jury verdict for a group of defendants in a Title IX case, finding, among other things, that the plaintiffs should have voiced any concerns they had about jury instructions prior to the trial when they were given an opportunity.
The impetus for the claim centered on a sexual relationship between Jennifer Bostic, a student athlete on the track team at Smyrna High School., and her coach John Smith.
The parents of the girl first became concerned about a close relationship between the two in September 1999 when they observed their daughter and Smith alone together in a car at night. They advised the school’s principal, Clarence Lloyd, who said he would speak with Smith and get back to him. Lloyd subsequently called Smith into his office and, in the presence of Anthony Soligo, the school’s assistant principal, and James Kiger, the school’s athletic director, discussed with Smith the allegations made by Bostic.
Smith claimed he was sitting in the car discussing his marital problems with Bostic. Lloyd warned Smith that being alone with a student at night in a parked car was inappropriate and told Smith to avoid improper conduct. Lloyd subsequently called Bostic and left a message describing what he had done and asked him to call him back if he had any further concerns. Bostic did not call back.
Nevertheless, the interactions between Bostic and Smith continued to the point which Bostic sought the involvement of the police, who, to their surprise, were already investigating a possible relationship between Smith and a different student. Shortly thereafter, Smith was suspended by the school. He was also arrested and subsequently pled guilty to crimes involving both students.
Bostic sued the school district and various officials under Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681, et. seq., based upon their alleged deliberate indifference to a sexual relationship between Bostic and her track coach John Smith, who was also named as a defendant.
The jury returned a verdict in favor of all defendants, except Smith, on all claims. The district court subsequently denied Bostic’s motion for a new trial. On appeal, appellants contend that the district court erred in instructing the jury on who is an “appropriate official” and what constitutes “actual notice” for purposes of Title IX liability. They contended that the court’s instructions “misstate the law and were contrary to the teachings of the Third Circuit and the United States Supreme Court.”
The appeals court began its analysis with a review of the defendant’s argument that “in order to preserve an objection to an instruction or the failure to give an instruction, a party must timely object on the record, stating distinctly the matter objected to and the grounds of the objection. Fed. R. Civ. P. 51(c)(1). ‘Generally, a party who does not clearly and specifically object to a charge he believes to be erroneous waives the issue on appeal.’ Alexander v. Riga, 208 F.3d 419, 426 (3d Cir. 2000); see also Fed. R. Civ. P. 51(d)(1). However, we may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51(d)(1)(A) or (B).Fed. R. Civ. P. 51(d)(2).”
It further noted during a charge conference held in chambers, the court asked the parties to review the jury instructions he had formulated, advising them to pay “particular attention to Title IX.”
The judge’s instructions were as follows:
“In order for Jennifer Bostic to establish her Title IX claim against the Institutional Defendants, she has the burden of proving by a preponderance of the evidence that a school official with the power to take action to correct the discrimination had actual notice of the discrimination, and, further, that the Institutional Defendants then responded to that notice with deliberate indifference. . . .”
After a short recess, the judge returned and inquired whether “there [was] anything . . . in the substance of the instructions thus far that we ought to raise.” Bostic’s counsel, according to the appeals court, stated, “I still request our instructions on Title IX. But I don’t have any objections at this point as to the instruction.”
Given plaintiffs’ counsel failure to state a specific objection, the appeals court said it would review for plain error. “Under such circumstances, we will overturn a verdict ‘only where the error is fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice.’ Watson v. S.E. Penn. Transp. Auth., 207 F.3d 207, 212 (3d Cir. 2000) (quoting Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir. 1998)).”
The plaintiff’s argument failed the reach the above threshold, concluded the appeals court, relying heavily on Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 141 L. Ed. 2d 277, 118 S. Ct. 1989 (1998).
James Bostic et al. v. Smyrna School District et al.; 3d Cir.; No. 04-1463; 8/10/05
Attorneys of Record: (for appellants) Richard R. Wier, Jr. (Argued), Daniel W. Scialpi, Richard R. Wier, Jr., P.A., Wilmington, DE. (for appelles) Jonathan L. Parshall (Argued), Murphy Spadaro & Landon, Wilmington, DE.


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