Delgado v. Stegall, 03-2700.

• Citation: 367 F.3d 668
• Decision Date: 04 May 2004
• Docket Number: No. 03-2700.,03-2700.
• Parties: Nicole DELGADO, Plaintiff-Appellant, v. James C. STEGALL and Western Illinois University, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

367 F.3d 668

Nicole DELGADO, Plaintiff-Appellant, v. James C. STEGALL and Western Illinois University, Defendants-Appellees.

No. 03-2700.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2004.

Decided May 4, 2004.

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Richard L. Steagall (argued), Nicoara & Steagall, Peoria, IL, for Plaintiff-Appellant.

Erik G. Light (argued), Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.

POSNER, Circuit Judge.

Nicole Delgado, a former student at Western Illinois University, a state university, claims to have been harassed by a professor at the university named James Stegall. She filed this suit for damages against the university under Title IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681-1688, and against Stegall under the Civil Rights Act of 1871, 42 U.S.C. § 1983. The district judge granted summary judgment for both defendants. He ruled that Delgado had failed to establish a violation of Title IX by the university and that Title IX provides the exclusive federal remedy for a teacher's misconduct toward a student; the latter ruling let Stegall off the hook.

Delgado, a music student at Western Illinois, was hired by her voice teacher, Stegall, to be his "office assistant" during her sophomore year. The record does not reveal the duties of the position except that they were somehow connected to Stegall's job as choral director. Part-time work for professors is a common activity of college students, and although sexual harassment of university employees is not actionable under Title IX if the employee could obtain relief under Title VII, Waid v. Merrill Area Public Schools, 91 F.3d 857, 861-62 (7th Cir.1996); Lakoski v. James, 66 F.3d 751, 753-58 (5th Cir.1995), there is no contention that the kind of part-time position that Delgado held (whatever exactly it involved), even though it made her an employee of the university, precludes her from complaining that she was harassed as a student and therefore can seek a remedy under Title IX. We cannot find any cases dealing with the question but it seems to us that harassment of a student interferes with her educational experience whether or not she is also a part-time employee; the harassment of a nonstudent employee could have no such effect.

Stegall made advances to Delgado after she became his office assistant, repeatedly asking her "Do you love me?" and "Would you ever marry a man like me?" He would also ask her for hugs, rub her shoulders, and tickle her. Troubled by these attentions, she confided her distress to another music teacher, a woman, who told her to "remove herself from the situation, get herself to counseling, get her parents involved, and go see the chair and/or the dean." She did speak to a counselor about things that were bothering her, including "the uncomfortableness of the comments [Stegall] was making." But neither the counselor nor the music teacher reported Stegall's misconduct to his dean or any other university official. Eventually, however, though only after transferring to another college, Delgado filed a complaint with Western Illinois University against Stegall. The university responded by directing him to undergo training in proper behavior toward female students and by placing "a letter ... in Dr. Stegall's personnel file, outlining the actions to be taken and the method for evaluating their effectiveness."

It turns out that Stegall had made advances to three other woman students, but they had never filed complaints and his conduct hadn't come to the attention of the university administration. Actually there had been a fourth episode, ten years earlier, that had led to a complaint being made to the university about Stegall but Delgado makes nothing of this — in fact does not even mention it in her briefs.

Two years before Stegall's alleged harassment of Delgado, his dean, James Butterworth, Dean of the College of Fine Arts and Communications at the university, had investigated possible sexual harassment by unnamed members of the art faculty. Stegall was and is a member of the music department, however, and no harassment by music faculty had been reported. Butterworth responded to the allegations concerning the art department by recommending to the university's president and provost the elimination of alcohol from social events sponsored by the department at which both teachers and students were present, the convening of meetings with current and incoming students to discuss the university's rules on fraternization and harassment, and the distribution of copies of the rules to all faculty. The recommendations were adopted and implemented.

Title IX prohibits sex discrimination in educational programs or activities supported by federal grants. 20 U.S.C. § 1681(a). The only remedy specified in the statute is the elimination of the federal funding, § 1682, but in Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that the statute by implication entitles a person injured by a violation to sue for damages. When, however, the claim for damages is based on the behavior of a teacher or of some other employee of the Title IX recipient, the plaintiff must prove that "an official of the [defendant educational institution] who at a minimum has authority to institute corrective measures ... has actual notice of, and is deliberately indifferent to, the teacher's misconduct." Gebser v. Lago Vista Independent School District, 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); see also id. at 290-91, 118 S.Ct. 1989; Davis v. Monroe County Board of Education, 526 U.S. 629, 642-43, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); Gabrielle M. v. Park Forest-Chicago Heights, Illinois School Dist. 163, 315 F.3d 817, 821 (7th Cir.2003); Hayut v. State University of New York, 352 F.3d 733, 750-53 (2d Cir.2003). Western Illinois concedes that both Dean Butterworth and the chairman of the music department were officials clothed with the requisite authority. But it denies that either of them had actual notice of Stegall's misconduct toward Nicole Delgado (or any other student — which Delgado, by failing to mention the incident ten years earlier, has in effect conceded) or was deliberately indifferent to that misconduct.

Here a peculiarity of the Supreme Court's formula should be noted. Ordinarily, actual notice and deliberate indifference are alternative paths to proving knowledge. Deliberate indifference means shutting one's eyes to a risk one knows about but would prefer to ignore. Boncher v. Brown County, 272 F.3d 484, 486 (7th Cir.2001); Collignon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir.1998); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1314 (11th Cir.2001). It thus corresponds to the criminal definition of recklessness, Delaney v. DeTella, 256 F.3d 679, 686 (7th Cir.2001); Collignon v. Milwaukee County, supra, 163 F.3d at 988; Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003); Weaver v. Shadoan, 340 F.3d 398, 410 (6th Cir.2003), which the law treats as the equivalent of intentionality. TRW Title Ins. Co. v. Security Union Title Ins. Co., 153 F.3d 822, 828 (7th Cir.1998); United States v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir.1998); J.I. Case Credit Corp. v. First National Bank, 991 F.2d 1272, 1278 (7th Cir.1993); McGinty v. State, 193 F.3d 64, 69-70 (2d Cir.1999). For "if a person with a lurking suspicion goes on as before and avoids further knowledge, this may support an inference that he has deduced the truth and is simply trying to avoid giving the appearance (and incurring the consequences) of knowledge." United States v. Ramsey, 785 F.2d 184, 189 (7th Cir.1986); see also United States v. Giovannetti, 919 F.2d 1223, 1226-29 (7th Cir.1990). But under the Supreme Court's formula, the plaintiff in a Title IX damages suit based on a teacher's behavior must prove actual knowledge of misconduct, not just actual knowledge of the risk of misconduct, and must also prove that the officials having that knowledge decided not to act on it.

There is less to the distinction than meets the eye. Obviously a school's officials know in a general sense that there is a risk that one or more of its teachers will harass a student sexually, even if no such incident has ever occurred in the school. That is not the kind of knowledge that establishes recklessness should the officials take no action against the risk. When the cases speak of a "known" or "obvious" risk that makes a failure to take steps against it reckless they have in mind risks so great that they are almost certain to materialize if nothing is done, Higgins v. Correctional Medical Services of Illinois, Inc., 178 F.3d 508, 511 (7th Cir.1999); West By and Through Norris v. Waymire, 114 F.3d 646, 650-52 (7th Cir.1997); Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir.1995); Coleman v. Rahija, 114 F.3d 778, 785-86 (8th Cir.1997), for it is only in such cases that recklessness regarding the consequences if the risk materializes merges with intention to bring about the consequences (more precisely, to allow the consequences to occur though they could readily be prevented from occurring). And that ought to be enough for liability under Title IX.

So if, for example, Stegall had been known to be a serial harasser, Butterworth might well be found to have had a sufficient approximation to actual knowledge that Delgado would be harassed to satisfy the Supreme Court's standard. After all, in Davis the Court required knowledge only of "acts of sexual harassment" by the teacher, Davis v. Monroe County Board of Education, supra, 526 U.S. at 641, 119 S.Ct. 1661, not of previous acts directed against the particular plaintiff. See also id. at 653-54, 119 S.Ct. 1661 (attaching significance to the fact that there were "multiple victims who were sufficiently disturbed by G. F.'s misconduct to seek an...