694 F.3d 869 (7th Cir. 2012), 12-1039, Doe v. St. Francis School Dist.
|Citation:||694 F.3d 869|
|Opinion Judge:||POSNER, Circuit Judge.|
|Party Name:||N.R. DOE, et al., Plaintiffs-Appellants, v. ST. FRANCIS SCHOOL DISTRICT, Defendant-Appellee, Kelly Sweet, Defendant, and Community Insurance Corporation, Intervening Defendant-Appellee.|
|Attorney:||Joseph A. Ranney, III (argued), Attorney, Dewitt Ross & Stevens S.C., Madison, WI, for Plaintiffs-Appellants. Lori M. Lubinsky (argued), Attorney, Axley Brynelson, Madison, WI, for Defendant-Appellee. Jonathan M. Ray, Attorney, Emile Banks & Associates, LLC, Milwaukee, WI, for Defendant. Kelly Sw...|
|Judge Panel:||Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.|
|Case Date:||September 10, 2012|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Argued May 30, 2012.
This suit, by a 14-year-old eighth grader and his parents (whom we can ignore, and so we refer to the boy as the plaintiff), seeks to impose liability on the school district for sexual abuse by a 26-year-old female teacher, Kelly Sweet, no longer employed by the school. The plaintiff is of course not named " N.R. Doe" but is being permitted to litigate pseudonymously.
The suit alleges that the failure of the public school district (named " St. Francis" because it is in a town of that name— it is not a parochial school) to prevent the abuse violated the plaintiff's rights under Title IX of the federal Education Amendments Act of 1972, 20 U.S.C. § 1681, and also constituted negligent infliction of emotional distress under Wisconsin tort law. Psychological harm is alleged and damages sought. The district court granted summary judgment in favor of the school district and certified the dismissal for immediate appellate review. Fed.R.Civ.P. 54(b). The suit remains pending in the district court against Sweet. The school's insurer intervened as a defendant-appellee but has not filed a brief and can be ignored.
Title IX prohibits sex discrimination in educational programs that receive federal financial assistance. 20 U.S.C. § 1681(a). Although the statute doesn't mention a private right of action, the Supreme Court has held that such a right is implied, Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and entitles the successful
plaintiff to damages. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). But as in cases under the Civil Rights Act of 1871, 42 U.S.C. § 1983, a school district sued in a private suit under Title IX cannot be held liable on the ground of respondeat superior for an employee's violation of the statute. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 285, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). The plaintiff must prove that " an official of the school district who at a minimum has authority to institute corrective measures ... has actual notice of, and is deliberately indifferent to, the teacher's misconduct." Id. at 277, 118 S.Ct. 1989; see also id. at 290, 118 S.Ct. 1989. In Delgado v. Stegall, 367 F.3d 668, 672...
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