Absence Of "Substantial Control" Defeats Title IX Liability

Posted on February 23, 2010 by Michael Rigney

DOE-2 v. MCLEAN COUNTY UNIT DISTRICT NO. 5  (January 22, 2010)

Jane Doe-2 was an elementary school student in the Urbana School District between 2005 and 2007. She alleges that she was sexually harassed by one of her teachers. She also alleges that: a) the same teacher was employed by the McLean County School District from 2002 to 2005, b) the teacher sexually harassed McLean County students during that time, c) McLean County school officials were aware of the harassment, and d) school officials concealed the harassment and provided a positive letter of recommendation. In fact, the teacher pleaded guilty to aggravated criminal sexual abuse of students in both school districts in 2007. Doe-2 brought suit against both school districts and district officials. The Urbana defendants settled. Against the McLean defendants, Doe-2 asserts a federal Title IX claim and a state court claim. The court dismissed the claims. Doe-2 appeals.

In their opinion, Judges Cudahy, Wood and Tinder affirmed. Although the Court recognized the existence of a private right of action under Title IX, it also noted its reluctance, pursuant to Supreme Court precedent, to expand implied statutory remedies. In order to state a Title IX claim, a victim of sexual harassment must establish that a school district had actual knowledge of the harassment and had substantial control over both the person and context of the harassment. Since the McLean defendants had no control over the teacher while he was employed in Urbana, the Court concluded that the Title IX requirements were not met. The Court also rejected Doe-2’s theory in which liability rested on the defendant's conduct while the teacher was still a McLean employee and under defendants’ control. The Court held to its requirement that the acts of harassment be under the defendants’ control. Addressing the plaintiff's state law claim of willful and wanton misconduct, the Court focused on the element of duty. One does not normally have a duty to protect another from an attack by a third person. Such a duty can sometimes arise out of a special relationship between the plaintiff and defendant. In fact, a school district sometimes does have a duty to protect its students. The Court was aware of no precedent, however, finding the existence of a duty where the student and the location of the offense were beyond the defendants' authority.

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Title IX Claim For Damages Against School District For Teacher's Misconduct Requires Proof of Actual Notice of and Deliberate Indifference to Misconduct

Posted on February 18, 2009 by Michael Rigney

HANSEN v. BOARD OF TRUSTEES (December 23, 2008)

Hamilton Southeastern High School (“HSHS”) hired Dmitri Alano as a teacher and assistant band director in 1988. Prior to his hiring, the Hamilton Southeastern School Corporation (“HSSC”) conducted its normal pre-hire process, which included an application and questionnaire, interviews, reference checks, and license and background checks. Alano began a sexual relationship with a student in 2000. The student concealed the relationship from her family and friends. A couple of years after the relationship ended, the student revealed the relationship to her therapist. Her parents and the police were informed. HSHS suspended Alano; he ultimately resigned. The student’s parents (the Hansens) brought federal claims under Title IX and 42 U.S.C. § 1983 and several state law claims against Alano and HSSC. The court granted summary judgment on two of the seven counts with respect to Alano. The court granted summary judgment on all seven counts with respect to HSSC and entered a Rule 54 (b) final judgment. The Hansens appeal the dismissal of the Title IX claim and the state law claims.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Tinder affirmed. The Court first addressed the Title IX claim. In order for the Hansens to establish a Title IX claim against HSSC for Alano’s conduct, it must prove that an official with authority to adopt corrective measures either had actual knowledge of the teacher’s misconduct or was deliberately indifferent. The Court concluded that the evidence did not establish that any HSSC official had such knowledge. The Court next rejected the Hansens’ claim that the district court should have declined to exercise jurisdiction over the state law claims once it had dismissed the federal claims. The Court found that the district court properly exercised jurisdiction in the first place – the claims are all based on a common set of facts. The court’s discretion under 28 U.S.C. § 1367(c) was never triggered since it maintained jurisdiction over the federal claim against Alano. Even if it had, the lower court considered a balance of the proper factors (judicial economy, convenience, fairness, comity).

The Court considered the state law claims in two categories: direct claims against HSSC for its own negligence and respondeat superior claims under which HSSC could be responsible for Alano’s conduct. On the former, the Court noted that Indiana does recognize a cause of action for the negligent hiring, supervision or retention of an employee. Although the Court noted the confusion over whether Indiana applies an “actual knowledge” or a “knew or should have known” standard, it did not matter. Hansen failed to satisfy even the lesser standard. On the respondeat superior claims, the Court stated that HSSC would be responsible for the tortious acts of Alano if they were committed within the scope of his employment. Indiana courts have held that an employee’s sexual misconduct is within the scope of his employment only when the employment itself involves extensive physical contact. Alano’s duties did not involve any physical contact. The respondeat superior claims must fail as well. Finally, the Court held that Indiana does not recognize a non-delegable duty for the safekeeping of its students.

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