N. R. Doe v. St. Francis School D , 694 F.3d 869 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1039
N.R. D OE, et al.,
Plaintiffs-Appellants,
v.
S T. F RANCIS S CHOOL D ISTRICT,
Defendant-Appellee,
K ELLY S WEET,
Defendant,
and
C OMMUNITY INSURANCE C ORPORATION,
Intervening Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-0545—Charles N. Clevert, Jr., Chief Judge.
A RGUED M AY 30, 2012—D ECIDED S EPTEMBER 10, 2012
Before E ASTERBROOK, Chief Judge, and B AUER and
P OSNER, Circuit Judges.
2 No. 12-1039
P OSNER, 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 emo-
tional distress under Wisconsin tort law. Psychological
harm is alleged and damages sought. The district court
granted summary judgment in favor of the school dis-
trict and certified the dismissal for immediate ap-
pellate 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 (1979), and entitles the successful plaintiff to
damages. Franklin v. Gwinnett County Public Schools, 503
U.S. 60, 76 (1992). But as in cases under the Civil Rights Act
of 1871, 42 U.S.C. § 1983, a school district sued in a private
No. 12-1039 3
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 (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; see also id. at 290. 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 no-
tice” and “deliberate indifference” are redundant, and
“actual notice” and “actual knowledge” are not neces-
sarily 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)
4 No. 12-1039
(1962). But as we pointed out in the West case, many
section 1983 cases not involving cruel and unusual punish-
ments apply instead the tort standard of reckless-
ness—“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 (1997); Jones v. Town of East Haven, No.
10-4731-cv(L), 2012 WL 3104523, at *7 (2d Cir. Aug. 1,
2012); Sanford v. Stiles, 456 F.3d 298, 309-10 and n. 13 (3d
Cir. 2006) (per curiam) (noting the conflict in standards).
And we have found a Title IX case that uses a similar
formula: Escue v. Northern Oklahoma College, 450 F.3d
1146, 1153-54 (10th Cir. 2006).
But there is less to the conflict in standards than meets
the eye, because in practice there is little difference be-
tween known and obvious, the former being a natural
inference from the latter. Keeton et al., supra, § 34, pp. 213-
14. Choosing between them in this case would not affect
the outcome.
The school district concedes misconduct by the
teacher. After an exchange of text messages in which she
told the boy that she wanted him to be her boyfriend,
she invited him to her apartment. He accepted the in-
vitation and when he arrived they spent 15 to 20 minutes
kissing and petting. (She concedes the kissing but denies
the petting.) Sexually suggestive text messages followed,
though no further physical contact. Although Sweet and
the boy had agreed to keep their relationship secret, one
or more of the messages were discovered by the boy’s
No. 12-1039 5
mother. She then transferred him to a private school.
Sweet was fired, prosecuted, and pleaded guilty to fourth-
degree sexual assault in violation of Wis. Stat.
§ 940.225(3m).
Sweet was disliked by the other eighth-grade teachers.
They thought she failed to maintain discipline. One of
them complained to the school’s principal that Sweet
was text messaging during the school day. She denied
it. The principal told her not to send text messages on
the job. Complaints about Sweet’s classroom manage-
ment and text messaging reached the school district’s
superintendent, Carol Topinka, who told the principal
to investigate the allegations. Sweet denied the allega-
tions and the principal was satisfied. But Topinka was
not and interviewed several of the other eighth-grade
teachers. They complained that Sweet had “breached
the line” and “blurred the line” by treating students as
friends—including our plaintiff. One of the teachers,
Elizabeth Gridley, said that Sweet and the plaintiff had
something “like an eighth grade girlfriend/boyfriend
relationship,” “like a crush.” Topinka asked Gridley
whether she thought there was anything illegal going on
and she said no. And the teachers acknowledged to
Topinka that they had no evidence to confirm their suspi-
cions. Topinka interviewed Sweet and concluded that
her denials of any impropriety were sincere. There
matters stood until the discovery of the relationship by
the plaintiff’s mother and the report of it to the school,
whereupon prompt measures to terminate Sweet
were undertaken.
6 No. 12-1039
Topinka must have considered the possibility that
Sweet and the plaintiff were romantically involved when
she asked Gridley whether she suspected that Sweet was
doing anything “illegal.” Gridley said she didn’t suspect
that, and Sweet denied any improprieties, and it is not
clear what further investigation Topinka should have
conducted at that point. No matter. Neither Topinka
nor the principal knew about the relationship (still in
the text-messaging stage) before it culminated in the
apartment visit, and indeed till after the plaintiff’s
mother discovered the text messages. Nor was the rela-
tionship obvious.
What the principal and the superintendent knew
was that Sweet’s colleagues, in particular Gridley, sus-
pected an improper relationship between Sweet and
the plaintiff. But to know that someone suspects some-
thing is not to know the something and does not mean
the something is obvious. The plaintiff unwittingly con-
cedes this in his reply brief when he states that
“Gridley’s and the other Teachers’ reports of an inappro-
priate romantic relationship between Sweet and NR
Doe, including Sweet’s reciprocation of NR Doe’s crush,
and of their concern for NR Doe, was sufficient to put
the School District on notice of misconduct suggesting
sexual harassment.” The term we’ve italicized denotes
merely knowledge that would cause a reasonable person
to investigate further. It is what in securities law is
called “inquiry notice.” Merck & Co. v. Reynolds, 130 S. Ct.
1784, 1797-98 (2010); McCann v. Hy-Vee, Inc., 663 F.3d
926, 929-30 (7th Cir. 2011); City of Pontiac General Employ-
ees’ Retirement System v. MBIA, Inc., 637 F.3d 169, 173-74 (2d
No. 12-1039 7
Cir. 2011). It falls well short of recklessness in either the
civil-law or the criminal-law sense.
Elsewhere the brief states that “the information
provided by the Teachers showed a known or obvious
risk of sexual misconduct by Sweet.” Known to whom?
Not to the principal or the superintendent. We add un-
necessarily that neither is there any proof of a deliberate
failure by the school district to take prompt remedial
action. Not only because Topinka did act promptly
after learning of the improper nature of the relation-
ship between Sweet and the plaintiff, but also because
it is unclear what more Topinka should have done after
hearing Sweet’s denials. The plaintiff suggests that she
should have questioned the plaintiff and his parents and
other students, but that would have caused considerable
distress to the plaintiff’s parents (who had encouraged
his friendly relationship with Sweet without having
any idea that it had a romantic or sexual dimension) and
would have distracted the other students from
their studies.
Judges must be sensitive to the effects on educa-
tion of heavy-handed judicial intrusion into school disci-
plinary issues, or heavy-handed administrative intru-
sion required by judges interpreting Title IX and other
statutes that, along with free-wheeling interpretations
of the speech and religion clauses of the First Amend-
ment, have made education one of the most heavily
regulated American industries. See, e.g., Barbara A. Lee,
“Fifty Years of Higher Education Law: Turning the Kalei-
doscope,” 36 J. College & University L. 649 (2010). Let us
8 No. 12-1039
not forget that one component of academic freedom
is the right of schools to a degree of autonomy in the
management of their internal affairs. See Brandt v. Board
of Education, 480 F.3d 460, 467 (7th Cir. 2007); Crowley
v. McKinney, 400 F.3d 965, 969-70 (7th Cir. 2005); Robert
M. O’Neil, “Judicial Deference to Academic Decisions:
An Outmoded Concept?” 36 J. College & University L.
729 (2010).
What we have said so far also disposes of the supple-
mental state law claim for negligent infliction of
emotional distress. Wisconsin law provides immunity
for exercises of discretion by public officials unless an
official disregards a known danger. Wis. Stat. § 893.80(4);
Pries v. McMillon, 784 N.W.2d 648, 655-56 (Wis. 2010);
Lodl v. Progressive Northern Ins. Co., 646 N.W.2d 314, 320-24
(Wis. 2002). But again the danger must be known to the
official, not known to someone else (in this case, merely
suspected by someone else) and communicated to the
official without proof. Lodl v. Progressive Northern Ins. Co.,
supra, 646 N.W.2d at 320-24; C.L. v. Olson, 422 N.W.2d 614,
622-23 (Wis. 1988); Heuser ex rel. Jacobs v. Community Ins.
Corp., 774 N.W.2d 653, 659-60 (Wis. App. 2009).
A FFIRMED.
9-10-12