by Craig D. Hasenbalg (Winter 2018)

Conduct that raises red flags as to the boundaries between school personnel and students does not mean that school administration has actual notice or knowledge of the risk of certain sexual misconduct. In the case of Jane Doe Number 55 v. Madison Metropolitan School District, 897 F.3d 819 (7th Cir. 2018), a student sued a school district for discrimination based on gender due to sexual misconduct of an employee. In Jane Doe, summary judgment was granted in favor of the school district by the district court. The court concluded that school’s principal did not have actual notice of the sexual abuse, as is required in a Title IX claim.

Title IX states that any educational institution receiving federal funds cannot discriminate in providing educational benefits based on gender. 20 U.S.C. § 1681(a). A private suit must show a school official who has authority to address discrimination has actual knowledge of the discrimination and fails to adequately respond, amounting to deliberate indifference.

The required notice can take two forms. The first is actual notice, meaning the school official knew of the conduct. The second is a risk so obvious that it is as if the school official knew of the conduct. The court’s example of this second risk would be knowledge of a “serial harasser.” This example indicates a scenario in which the actual knowledge requirement may be met even if the school official lacked knowledge of the specific conduct alleged.

Jane Doe was a student at Whitehorse Middle School within the Madison Metropolitan School District where a security assistant was employed to supervise and monitor school safety. The school’s positive behavior support coach, counselor, and a teacher all notified the principal of their concern with the conduct of the security assistant toward students.

The security assistant was seen rubbing Doe’s shoulders, and Doe had jumped and hung on the assistant and had kissed his cheek during her seventh-grade year. These observations were reported to the principal. The principal met with the security assistant to discuss the issues.

The security assistant countered by informing the principal that Doe confided in him about family and peer relationships. The principal emphasized the need for clear boundaries between the assistant and Doe.

From the end of Doe’s seventh-grade and throughout her eighth-grade year, the principal noticed a significant decrease in the interaction between the security assistant and Doe. However, at the beginning of her first year of high school, Doe made an allegation of sexual abuse that occurred during eighth grade by the security assistant. The Madison Police Department was notified of the allegations and commenced an investigation. School district officials were made aware of the allegations and immediately put the security assistant on a leave of absence.

The principal was unaware of Doe’s abuse allegations until after Doe graduated from middle school. No teacher or staff member reported any incidents or concerns about the security assistant to the principal during Doe’s eighth-grade year, nor had the principal seen physical contact between the assistant and Doe. Due to the lack of reports or sightings during the eighth-grade year, Doe relied on the events of the previous school year to establish the principal’s actual knowledge. This included the reports from personnel about concern over the security assistant’s conduct with students and the sighting by the principal of conduct between Doe and the assistant.

The Seventh Circuit did not find actual knowledge of any sexual misconduct. Knowledge was lacking “of a risk so great that harm was almost certain to occur if nothing was done.” Although there may have been concern over stronger boundaries necessary between Doe and the security assistant, a reasonable jury could not have found the principal had actual knowledge of sexual misconduct by the assistant that created a serious risk to Doe.

The Seventh Circuit affirmed the granting of summary judgment by the district court in favor of the school district. The Seventh Circuit’s analysis here is consistent with its findings in previous cases that mere suspicion is not actual knowledge.

Other courts of appeals have upheld similar demanding standards concerning what constitutes actual notice. For example, in Wills v. Brown Univ., 184 F.3d 20 (1st Cir. 1999), misconduct had occurred before the sexual harassment of the particular student, but only teachers were notified with the provost and dean lacking knowledge until after the sexual harassment. However, in Doe v. Sch. Bd. of Broward County, 604 F.3d 1248 (11th Cir. 2010), two complaints of sexual misconduct filed prior to the conduct in question, of which the principal had actual notice, fulfilled the actual notice requirement. These cases reflect consistent treatment of the actual notice or knowledge requirement with the Jane Doe.

The case of Jane Doe Number 55 v. Madison Metropolitan School District indicates that plaintiffs bringing a Title IX claim regarding sexual misconduct of an employee must strictly fulfill the notice requirement of a school official in order to successfully implicate the school district. Although there may be circumstances where actual knowledge of the misconduct is not required, it is a high threshold to show that the risk of harm is great enough that harm will almost certainly be forthcoming. Mere suspicion, without evidence — is not enough to induce a school’s liability.