District not liable under Title IX for former teacher’s sexual misconduct subsequent to employment by another district
The U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has ruled that a school district in Illinois was not liable under Title IX for a former teacher teacher’s sexual abuse of a student that occurred after the teacher was employed by another school district. The appeals court also rejected the student’s state tort law claims for willful and wanton misconduct and violation of Illinois Abused and Neglected Child Reporting Act (ANCRA). Jon White was employed by McLean County Unit School District No. 5 (MCUSD5) as an elementary school teacher from 2002 to 2005. After receiving several complaints from parents and students regarding White having engaged in inappropriate touching of female students and other sexually suggestive conduct and comments, MCUSD5 officials entered into a severance agreement with White in April 2005 that ended his employment with the district. The agreement included providing White with a positive letter of recommendation. In August 2005, Urbana School District (USD) hired White to teach elementary school. MCUSD5 completed USD’s verification of teaching experience form and returned it to USD, indicating White had completed three years of service as a teacher in MCUSD5. While teaching in USD from 2005 to 2007, White sexually abused several of his female students using methods similar to those he employed while teaching in MCUSD5. He was eventually arrested and pleaded guilty to aggravated criminal sexual abuse of two MCUSD5 students and eight USD students.
The plaintiff, who was identified as Doe-2, was one of the students at USD who was abused by White. Doe-2 filed suit in federal district court against MCUSD5 and USD. USD settled with Doe-2 and was dropped as a defendant. The Title IX claim against MCUSD5 alleged that the district’s concealment of White’s sexual abuse amounted to deliberate indifference to the safety of students in USD. She also claimed that MCUSD5 had violated its obligations under ANCRA by failing to report White’s sexual harassment to state authorities, and that this ANCRA violation caused Doe-2 to suffer White’s abuse. In addition, Doe-2 claimed that MCUSD5 acted with willful and wanton disregard for her safety by concealing White’s sexual harassment, thereby allowing him to obtain a job in USD. The district court dismissed all of Doe-2’s claims. It held MCUSD5 could not be held liable under Title IX for White’s harassment of Doe-2 because the sexual harassment had occurred outside MCUSD5’s control. Regarding the state tort law claims, the court concluded that Doe-2 failed to identify any duty that MCUSD5 owed to her under Illinois tort law.
The Seventh Circuit affirmed the lower court’s decision. Addressing the Title IX claim, the appeals court pointed out that in order for a plaintiff to establish that a school district has acted with deliberate indifference, she must show that the district had “actual knowledge” of the sexual harassment and that the district exercised “substantial control over both the harasser and the context in which the known harassment occurs.” It emphasized that the control element is “essential for Title IX liability because a school district cannot be liable for its indifference to harassment that it lacks the authority to prevent.” It found that MCUSD5 lacked such control over White’s harassment of Doe-2 in USD. It also noted that the U.S. Court of Appeals for the Eighth Circuit (ND, SD, MN, NE, IA, MO, AR) addressed a similar Title IX claim in Shrum ex rel. Kelly v. Kluck, 249 F.3d 773 (8th Cir. 2001), concluding that the “school district lacked the necessary control over the teacher’s abuse in the new district to incur Title IX liability.” In this case, the Seventh Circuit rejected Doe-2’s theory that MCUSD5 had control at the point it entered into the severance agreement and chose to conceal white’s suspected abuse by allowing him to quietly resign, thereby demonstrating deliberate indifference to the risk that White would move on to another school district like USD and continue his sexual harassment. The court stated: “But even assuming that the defendants had actual knowledge of a risk that White would sexually abuse Urbana students, they still lacked the requisite control over such harassment to incur Title IX liability.” The Seventh Circuit noted the U.S. Supreme Court’s reluctance to expand statutory remedies through implied rights of action. It decided that it was “constrained to follow the specific limitations that the [Supreme] Court has placed on Title IX’s implied private remedy, specifically, the limitation that the known acts of sexual harassment are subject to the school district’s control.
Turning to the state tort law claims, the Seventh Circuit pointed out that, under its precedent, an ANCRA violation does not give rise to a private tort action unless the violation also breaches a common duty of care owed to the plaintiff. For this reason, Doe-2 must identify a common law duty owed to her by the defendants. After reviewing the possible theories of duty, the court determined that MCUSD’s failure to tell USD officials of White’s suspected harassment did not breach any common law duty owed to Doe-2.
Doe-2 v. McLean County Unity Sch. Dist. No. 5.
[Editor’s Note: In a somewhat different case in which a federal court of appeals noted the U.S. Supreme’s reluctance to expand statutory remedies through implied rights of action, the U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, ND, NE, SD) ruled that a student in a Title IX suit had failed to establish that the guidance counselor was an appropriate person possessing the authority to take “corrective measures.” It held Title IX “does not contemplate a definition of ‘corrective measures’ so broad as to include the mere ability to report suspicions of discriminatory conduct to someone with the authority to stop the abuse or control the harasser. Such an approach would expand the scope of Title IX liability beyond that which Congress intended and would functionally open all educational institutions to liability based on a theory of respondeat superior or constructive notice—a move that the Supreme Court has clearly stated the statute does not contemplate.” A summary of the Eighth Circuit’s opinion is below.]
NSBA School Law pages on Plamp v. Mitchell Sch. Dist. No. 17-2