Doe v. St. Francis Sch. Dist.

Citation694 F.3d 869
Decision Date10 September 2012
Docket NumberNo. 12–1039.,12–1039.
PartiesN.R. DOE, et al., Plaintiffs–Appellants, v. ST. FRANCIS SCHOOL DISTRICT, Defendant–Appellee, Kelly Sweet, Defendant, and Community Insurance Corporation, Intervening Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

694 F.3d 869

N.R. DOE, et al., Plaintiffs–Appellants,
v.
ST. FRANCIS SCHOOL DISTRICT, Defendant–Appellee,
Kelly Sweet, Defendant,
and
Community Insurance Corporation, Intervening Defendant–Appellee.

No. 12–1039.

United States Court of Appeals,
Seventh Circuit.

Argued May 30, 2012.
Decided Sept. 10, 2012.


[694 F.3d 870]


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 Sweet, Watertown, WI, pro se.

Michele M. Ford, Attorney, Crivello Carlson, S.C., Milwaukee, WI, for Intervening Defendant–Appellee.

Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.

POSNER, Circuit Judge.

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

[694 F.3d 871]

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 (7th Cir.2004), we said with reference to the first of these requirements (and the only one we need discuss)—“actual notice”—that the plaintiff must prove “actual knowledge of misconduct, not just actual knowledge of the risk of misconduct.” See also Hansen v. Board of Trustees, 551 F.3d 599, 605 (7th Cir.2008); J.F.K. v. Troup County School District, 678 F.3d 1254, 1260 (11th Cir.2012).

These are not perspicuous formulations. “Actual notice” and “deliberate indifference” are redundant, and “actual notice” and “actual knowledge” are not necessarily synonyms. What's clear is that a school district's liability must be personal rather than vicarious, but we need a clearer statement of the standard for holding officials liable than the statements we just quoted. The standard has gotten a lot of attention in civil rights cases under 42 U.S.C. § 1983, which generally apply, or at least articulate, the criminal standard of recklessness—conscious disregard of a substantial and unjustifiable risk of causing harm. See, e.g., United States v. Boyd, 475 F.3d 875, 876 (7th Cir.2007); West v. Waymire, 114 F.3d 646, 649–52 (7th Cir.1997); American Law Institute, Model Penal Code § 2.02(2)(c) (1962). But as we pointed out in the West case, many section 1983 cases not involving cruel and unusual punishments apply instead the tort standard of recklessness—“conscious disregard of known or obvious dangers.” 114 F.3d at 651 (emphasis in original); W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 34, pp. 212–13 (5th ed. 1984). See, e.g., Board of County Commissioners v. Brown, 520 U.S. 397, 410–15, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Jones v. Town of East Haven, 691 F.3d 72...

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    ...to institute corrective measures" had actual knowledge of, and was deliberately indifferent to, the harassment. Doe v. St. Francis Sch. Dist. , 694 F.3d 869, 871 (7th Cir. 2012). If that hurdle is cleared, a plaintiff in a Title IX case must also adequately allege that (1) the educational i......
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