School District Not Liable For Harassment by Former Teacher

The Seventh Circuit Court of Appeals recently ruled that the McLean County School District was not liable for the harassment committed by a former teacher at his new school. From 2002 to 2005, Jon White was an elementary school teacher in McLean County, Illinois. According to the plaintiff's complaint, school district officials were aware of his sexually harassing and abusive behavior, which included such disturbing things as "hugging students and holding them on his leg, having students massage him and wrap their legs around him, showing students sexually suggestive photographs, and commenting on students' sexual attractiveness," as well as engaging in something called the “taste test game,” in which White would "blindfold students and then place foods in their mouths using a banana, his hand, or his penis."

Rather than fire White outright, the McLean County School District got rid of him quietly and, according to the plaintiffs, "intentionally concealed" his sexual misconduct to his next employer, the Urbana School District -- even writing him a positive letter of recommendation. There White proceeded to harass and abuse more students, including the anonymous plaintiff in this case, Jane Doe-2. Doe-2 and other victims filed tort and Title IX claims against the McLean School District. However, a district court dismissed the tort claim on the grounds that McLean does not owe a duty of care to students in other districts. It also dismissed the Title IX claim because the harassment of Doe-2 occurred outside the scope of McLean's control.

The appellate court agreed with both results. In its Title IX analysis, of particular interest here, the court did not agree that McLean officials had notice that White would sexually abuse Urbana students. But even if they did, the court reasoned, the McLean officials did not have control over harassment Jon White was perpetrating in the Urbana schools.

To me, this reasoning takes an unnecessarily narrow view of the requirement that, for Title IX to apply, a school district have the ability to control or prevent harassment. Assuming truth of the plaintiff's allegations, McLean officials had control over White at the moment the other requirements for Title IX liability occurred; that is, at the time they learned White was a risk to future students, and at the time they responded with deliberate indifference to this knowledge by letting White go quietly. I think that the Seventh Circuit's rule gives every incentive to school districts to behave exactly as McLean is alleged to have behaved. This decisions creates a loophole from the requirement that school districts act reasonably when confronted with evidence of sexual harassment; they can avoid the hassle of disciplining or terminating an abusive teacher and still shield themselves from Title IX liability by making sure that the teacher's continuous misconduct occurs outside the district. The Seventh Circuit claims to be acting in accordance with the Supreme Court's professed reluctance to expand statutory remedies through implied rights of action. But the Seventh Circuit's rigid control test does more than refrains from expanding remedies under Title IX -- it completely undermines those remedies.

Decision: Doe-2 v. McLean County Sch. Dist., 2010 WL 199625 (7th Cir. Jan. 22, 2010).