Seventh Circuit finds school district not liable under Title IX or state law for teacher's sexual harassment after moving to another district  

In Jane Doe-2 v. McLean County Unit School District No. 5, No. 09-1936 (7th Cir. 2010), the Seventh Circuit Court of Appeals affirmed the district court's decision and held that McLean County School District was not liable under Title IX or state law for its failure to warn a former teacher's new employer district of previous student sexual harassment.

 While teaching in McLean County, Jon White sexually harassed his female students by hugging his female students and holding them on his leg, having them massage him and wrap their legs around him, showing them sexually suggestive photographs, and commenting on students' sexual attractiveness. White also blindfolded several students and placed food in their mouths using his hand, a banana, or his penis. The Plaintiff identified school officials who were aware of several parent and student complaints regarding the harassment.

McLean allowed White to resign and entered an agreement that concealed the harassment. District officials also provided a positive letter of recommendation and a Verification of Teaching Experience, both of which failed to mention the harassment. After White left McLean, he worked for the Urbana School District for two years, where he harassed eight Urbana students, including the plaintiff.

The Seventh Circuit found McLean was not liable under Title IX because it lacked sufficient control over the harasser or context in which the harassment occurred. Title IX prohibits sex-based discrimination under any educational program receiving federal funding. A plaintiff can recover under Title IX for "deliberate indifference" if the plaintiff can show "actual knowledge" of the harassment and "substantial control over both the harasser and the context in which the known harassment occurs."  McLean lacked control because White's harassment of the plaintiff occurred after he left the district, when it no longer had supervisory authority to prevent the conduct.

In addition, the court held the district was not liable under state law, because it had no duty to affirmatively protect the plaintiff from White's conduct. Failure to report the abuse under the Illinois Abused and Neglected Child Reporting Abuse Act (ANCRA) did not, in itself, create a duty to the plaintiff. The court noted that it could be assumed McLean officials suspected White would come into contact with Urbana students, since it completed Urbana's Verification of Teaching Experience form on White's behalf. Still, the court found that the "foreseeability of a risk that White would harass Urbana students [was] not enough to create a duty to protect, absent a special relationship."

In dismissing the Complaint, the Court noted that McLean's non-disclosure of White's sexual harassment is troubling. The Court said:

…[W]e emphasize that nothing in our decision today should suggest that school districts can quietly shuffle abusive teachers on to the next district with impunity. ANCRA imposes criminal penalties for willful violations of its reporting requirements, (citation omitted), which we trust will give Illinois school officials an extra incentive (if they needed one) to disclose their teachers' known acts of sexual harassment.

Please note that Illinois law has been amended to require district and general superintendents to notify the State Superintendent of Education and the applicable regional superintendent if he or she has reasonable cause to believe a certificate holder committed an intentional act of abuse or neglect against a child and if the act resulted in the holder's dismissal or resignation. Except for willful or wanton misconduct, any superintendent who provides the required notification is immune from all civil and criminal liability.