In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1936

JANE DOE-2, et al.,

Plaintiffs-Appellants,

v.

MCLEAN COUNTY UNIT DISTRICT NO. 5

BOARD OF DIRECTORS, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 08 C 2169—Michael P. McCuskey, Chief Judge.

ARGUED SEPTEMBER 21, 2009—DECIDED JANUARY 22, 2010

Before CUDAHY, WOOD, and TINDER, Circuit Judges.

TINDER, Circuit Judge. From 2002 to 2007, Jon White

was an elementary schoolteacher in two central Illinois

school districts, first the McLean County School District

and then the Urbana School District. During that time,

he sexually abused several female students in both districts. In this appeal, we address the liability of the

McLean County School District for allowing White’s
2 No. 09-1936

abuse to occur. The case is more complicated, though,

because it does not involve the McLean County School

District’s failure to protect its own students from

White; instead, we consider whether the District may be

liable for White’s abuse of an Urbana student after he

left McLean County.

Jane Doe-2 (“Doe-2”), one of the Urbana students victimized by White, sued the McLean County School

District and various McLean County school officials

under Title IX of the Education Amendments of 1972, 20

U.S.C. § 1681(a), and Illinois tort law. Doe-2 alleged that

these defendants knew that White sexually harassed

McLean County students but, rather than sound the

alarm, allowed White to quietly resign and obtain a

new job in Urbana. Doe-2 claimed that this inaction

amounted to a “deliberate indifference” to White’s harassment actionable under Title IX, as well as willful and

wanton misconduct actionable under Illinois tort law.

The district court dismissed Doe-2’s complaint under

Fed. R. Civ. P. 12(b)(6) for failure to state a claim. We

conclude that, at the time White abused Doe-2, the defendants lacked the requisite control over White to

establish deliberate indifference liability under Title IX;

they also owed no duty to Doe-2 enforceable under

Illinois tort law. For these reasons, we affirm.

I. Background

Doe-2’s complaint describes the facts leading to

White’s harassment of her in Urbana, facts that we

accept as true in this appeal from the dismissal of Doe-2’s
No. 09-1936 3

complaint for failure to state a claim. Sharp Elecs. Corp. v.

Metro. Life Ins. Co., 578 F.3d 505, 510 (7th Cir. 2009). From

2002 to 2005, White was an elementary schoolteacher

in McLean County, Ill. During that time, he sexually

harassed his female students through methods that

included 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. Easily the most disturbing form of abuse was what

Doe-2’s complaint describes as a “taste test game,” in

which White would blindfold students and then place

foods in their mouths using a banana, his hand, or his

penis.

Doe-2 identifies several McLean County school officials

who were aware, at least at some level, of White’s harassment: Jim Braksick and Edward Heinemann, principals of

the elementary school where White worked; Dale

Heidbreder, assistant principal; Alan Chapman, superintendent of the McLean County School District; and John

Pye, the assistant superintendent. These defendants

allegedly knew of several complaints from students

and parents relating to inappropriate touching between

White and his female students, including White’s having

students massage him and wrap their legs around him.

Another complaint related to White’s showing a sexually

suggestive photograph to a student and commenting

on her appearance.

The McLean County School District decided to get rid

of White but didn’t fire him outright. Instead, the
4 No. 09-1936

District took a series of actions that Doe-2 characterizes as

“passing” White to Urbana. In April 2005, the District and

White entered into a severance agreement that, according

to Doe-2’s complaint, “intentionally concealed” White’s

sexual harassment of his students. Heinemann, Chapman,

and Pye also provided a “falsely positive letter of recommendation” for White, which again made no mention

of White’s sexual harassment.

In August 2005, the Urbana School District hired White

to teach second grade at one of its elementary schools.

At around that time, the District sent a Verification of

Teaching Experience form to the McLean County School

District. Assistant Superintendent Pye completed the

form and reported that White taught in his district for

three complete school years, 2002 to 2005. The Urbana

School District received the form from Pye on August 29.

While teaching in Urbana from 2005 to 2007, White

sexually harassed several of his female students,

including Doe-2, using methods similar to those he used

in McLean County. Following his arrest by Urbana police

in February 2007, White pleaded guilty to aggravated

criminal sexual abuse of two of his McLean

County students and eight of his Urbana students, including Doe-2.

Doe-2, through her mother, Julie Doe-2, sued the McLean

County School District and the five individual school

officials named above for failing to disclose White’s

sexual harassment before he could assault Doe-2. Doe-2

also sued the Urbana School District and several Urbana

school officials, but these Urbana defendants have settled
No. 09-1936 5

with Doe-2 and are no longer parties in this case. Doe-2

asserted a Tile IX claim against the McLean County

School District, alleging that the District’s concealment

of White’s sexual harassment amounted to a deliberate

indifference to the safety of the students in Urbana. Doe-2

also raised supplemental Illinois tort law claims against

all of the McLean County defendants. She claimed that the

defendants violated their obligations under the Illinois

Abused and Neglected Child Reporting Abuse Act

(“ANCRA”), 325 ILCS 5/4, by failing to report White’s

sexual harassment to state authorities, and that this

ANCRA violation caused Doe-2 to suffer White’s abuse.

Doe-2 also claimed that the defendants acted with

willful and wanton disregard for her safety by concealing

White’s sexual harassment and thereby allowing him

to obtain a job in Urbana.

The district court dismissed all of Doe-2’s claims under

Fed. R. Civ. P. 12(b)(6). The court reasoned that the

McLean County School District could not be liable under

Title IX for White’s sexual harassment of Doe-2 in

Urbana, since that harassment occurred outside of the

District’s control. As for Doe-2’s tort claims, the court

concluded that Doe-2, an Urbana student, failed to

identify any duty that the McLean County defendants

owed to her under Illinois tort law.

II. Analysis

Doe-2 appeals the dismissal of both her Title IX claim

and her state-law willful and wanton misconduct claims.

We review de novo the district court’s dismissal of a
6 No. 09-1936

complaint under Fed. R. Civ. P. 12(b)(6) for failure to state

a claim, accepting as true all of the complaint’s wellpleaded factual allegations. Sharp Elecs. Corp. v. Metro. Life

Ins. Co., 578 F.3d 505, 510 (7th Cir. 2009). To survive a

motion to dismiss, the complaint’s factual allegations

need not be detailed but must be sufficient to “state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

A. Title IX

Title IX of the Education Amendments of 1972

provides that, with exceptions not relevant here, “No

person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any education

program or activity receiving Federal financial

assistance . . . .” 20 U.S.C. § 1681(a). In enacting Title IX,

Congress sought to prevent federally funded educational

institutions from discriminating on the basis of sex. See

Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979). Although

the only remedy expressly authorized by the statute is

the termination of the recipient’s federal funding,

20 U.S.C. § 1682, the Supreme Court has held that Title IX

contains an implied private right of action for money

damages, Cannon, 441 U.S. at 717; Franklin v. Gwinnett

County Pub. Sch., 503 U.S. 60, 76 (1992).

Title IX’s implied right of action allows a student who

suffers sexual harassment by a teacher to recover
No. 09-1936 7

damages against her school district, but only if the

school district acts with “deliberate indifference” to the

harassment. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 290 (1998). To display deliberate indifference, the

school district must first have “actual knowledge” of the

sexual harassment. Id. In addition to actual knowledge,

the school district must have “substantial control over

both the harasser and the context in which the known

harassment occurs.” Davis ex rel. LaShonda D. v. Monroe

County Bd. of Educ., 526 U.S. 629, 645 (1999). This substantial 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. Id. at 644.

Here, these McLean County defendants lacked the

requisite control over White’s harassment of Doe-2 in

Urbana. White harassed Doe-2 after he ended his employment with the McLean County School District, and

this harassment occurred in an Urbana elementary

school where the defendants had no supervisory authority. Since the defendants “lack[ed] the authority to take

remedial action” in Urbana, White’s harassment did not

“take place in a context subject to [their] control.” Id. at

644-45.

The Eighth Circuit dealt with a similar Title IX claim

arising out of a school district’s agreement to let a teacherharasser quietly resign, after which the teacher moved on

to a new school district and continued his sexual abuse. See

Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 775-77 (8th Cir.

2001). The court concluded that the defendant school
8 No. 09-1936

district lacked the necessary control over the teacher’s

abuse in the new district to incur Title IX liability. Id. at

782. The school district’s alleged concealment of prior

student complaints of sexual abuse was “insufficient to

create a direct link between the abuse and [the district’s]

scope of control.” Id.

As in Shrum, the McLean County defendants no

longer controlled White by the time he harassed Doe-2

in Urbana. Recognizing this fact, Doe-2 pegs her theory

of deliberate indifference to the latest point when the

defendants did control White, the April 2005 severance

agreement. Even though the defendants couldn’t control

White’s actions in Urbana, they could control their

own decision to conceal White’s suspected abuse while

letting him quietly resign. According to Doe-2, this decision displays a deliberate indifference to the risk that

White would move on to another school district like

Urbana and continue his sexual harassment.

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. White

harassed Doe-2 in Urbana several months after he left

the McLean County School District, meaning that these

McLean County defendants lacked “authority to take

remedial action.” Davis, 526 U.S. at 644; cf. Delgado v.

Stegall, 367 F.3d 668, 672 (7th Cir. 2004) (opining that a

university could be deliberately indifferent for failing

to protect its current students from the risk of a known

harasser). Since the McLean County School District
No. 09-1936 9

didn’t control the Urbana “context” of White’s harassment of Doe-2, Doe-2 cannot recover from the District

under Title IX’s implied right of action. Davis, 526 U.S.

at 645.

Perhaps expanding Title IX’s implied right of action to

include a school district’s failure to expose a teacherharasser no longer within its control would have a

positive effect, discouraging school officials from

quietly shuffling abusive teachers on to another district.

Nonetheless, given the Supreme Court’s reluctance to

expand statutory remedies through implied rights of

action, see Smart v. Int’l Bhd. of Elec. Workers, Local 702, 315

F.3d 721, 727 (7th Cir. 2002), we are constrained to

follow the specific limitations that the Court has placed

on Title IX’s implied private remedy. One such limitation

is that the known acts of sexual harassment be subject

to the school district’s control, Davis, 526 U.S. at 644, a

control that the McLean County School District didn’t

have over White’s harassment of Doe-2 in Urbana.

B. Willful and Wanton Misconduct

Under Illinois Law

Moving to Doe-2’s Illinois tort claims, we begin with a

comment on subject matter jurisdiction. The district court

had supplemental jurisdiction over Doe-2’s state-law

claims under 28 U.S.C. § 1367(a), since these claims were

part of the same “case or controversy” as Doe-2’s Title IX

claim over which the court had original jurisdiction.

Ordinarily, when a district court dismisses the federal

claim conferring original jurisdiction before trial, it relin-
10 No. 09-1936

quishes supplemental jurisdiction over any state-law

claims under 28 U.S.C. § 1367(c)(3). Hansen v. Bd. of Trs. of

Hamilton Se. Sch. Corp., 551 F.3d 599, 607 (7th Cir. 2008).

Here, following the dismissal of Doe-2’s Title IX claim

under Rule 12(b)(6), nothing indicates that the district

court or the parties thought of dismissing Doe-2’s statelaw claims without prejudice for the Illinois courts to

resolve. Given the relatively novel issues of Illinois tort

law presented by Doe-2’s case, it would have been appropriate to consider such a dismissal. See id. at 608

(observing that the supplemental claims did not “entangle

the federal courts in difficult issues of state law”).

Still, the failure below to consider the possibility of

dismissing Doe-2’s supplemental claims does not preclude

our review. Although a district court may relinquish

supplemental jurisdiction following the dismissal of all

federal claims, it is not required to do so, unless the

federal claims are frivolous and so do not engage the

jurisdiction of the federal courts. CropLife Am., Inc. v. City

of Madison, 432 F.3d 732, 734 (7th Cir. 2005). We have

concluded that Doe-2’s federal claim under Title IX was

properly dismissed, but this claim was not so weak as to

be frivolous. Further, the factual basis for Doe-2’s statelaw claims was indistinguishable from the asserted basis

for her federal claim, and the district judge had devoted

substantial court time and resources to analyzing

the complaint’s factual allegations before addressing the

state-law theories. And finally, Doe-2 chose to bring all

of her claims in federal court and never requested the

alternative disposition of a § 1367(c)(3) dismissal of

her state-law claims should her Title IX claim fail. See
No. 09-1936 11

Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC,

No. 09-2523, 2009 WL 4894242, at *1 (7th Cir. Dec. 21,

2009) (resolving supplemental claims on appeal where

no party argued for relinquishment); CropLife, 432 F.3d

at 734 (same). Accordingly, we will take up the merits of

Doe-2’s Illinois tort claims.

Under Illinois law, a plaintiff pleading willful and

wanton misconduct must establish the same basic

elements of a negligence claim, which are the existence of

a duty, breach of that duty, and an injury proximately

resulting from the breach. Krywin v. Chi. Transit Auth., 909

N.E.2d 887, 890 (Ill. App. Ct. 2009). A willful and wanton

claim has the additional requirement that the breach be

not merely negligent, but with “conscious disregard for

the welfare of the plaintiff.” Ortega-Piron ex rel. Doe v.

Chi. Bd. of Educ., 820 N.E.2d 418, 423 (Ill. 2004).

In trying to identify a duty that the defendants owed

to her, Doe-2 runs into the familiar rule that a person

ordinarily “has no duty to act affirmatively to protect

another from criminal attack by a third person.” Iseberg v.

Gross, 879 N.E.2d 278, 284 (Ill. 2007) (citing Restatement

(Second) of Torts § 314 (1965)). The direct source of Doe2’s injury was a criminal sexual assault by Jon White, a

third party whom these McLean County defendants

didn’t control at the time of the assault. So even if the

defendants knew that White was a sexual harasser

who likely would assault Doe-2 or other Urbana students,

these facts alone would not create a duty under Illinois

common law to protect Doe-2.

That is so even though Illinois statutory law would

require the defendants to act. Under the Illinois Abused
12 No. 09-1936

and Neglected Child Reporting Abuse Act, “school personnel” who have “reasonable cause to believe” that a student

has suffered abuse must notify the Illinois Department

of Children and Family Services. 325 ILCS 5/4. But

ANCRA’s mandate to report child abuse does not create

any duty to the abused child enforceable under Illinois

tort law. In Cuyler v. United States, 362 F.3d 949, 952-53

(7th Cir. 2004), we explained that an ANCRA violation

does not give rise to a private tort action unless the violation also breaches a common law duty of care owed to

the plaintiff. The Illinois Appellate Court similarly concluded in Tanya S. ex rel. Doe 1 v. N. Cent. Behavioral

Health Sys., Inc., 816 N.E.2d 4, 7-8 (Ill. App. Ct. 2004), that

ANCRA did not provide a private cause of action for a

psychology clinic’s failure to report sexual abuse by one

of its patients. The court found “no evidence that the

statute was designed to . . . impose civil liability on those

who fail to report.” Id. at 8. From this authority it

follows that Doe-2 cannot rely on the defendants’ alleged

violation of ANCRA’s reporting requirements to

support her private tort claims; she must identify a common law duty owed to her by the defendants.

One common law duty to protect against third-party

attacks arises where the defendant has a “special relationship” with the plaintiff. Iseberg, 879 N.E.2d at 284. Illinois

courts have recognized that some relationships between

public school districts and their students create a duty

to protect, but only under certain circumstances. A

school district does not have a duty to protect its student

body at large against the general risk of criminal attack,

even if the attacker is another student subject to the dis-
No. 09-1936 13

trict’s authority. See Lawson v. City of Chi., 662 N.E.2d 1377,

1389 (Ill. App. Ct. 1996) (dismissing a negligence claim

arising out of a school board’s failure to prevent one

student from shooting another, where the board lacked

knowledge that the shooter had a gun or that the victim

was in particular danger); Thames v. Bd. of Educ., 645 N.E.2d

445, 449-50 (Ill. App. Ct. 1994) (same). On the other hand,

a school district with unique knowledge that one of its

teachers or students poses a particular threat to another

student may acquire a duty to protect. See Ortega-Piron,

820 N.E.2d at 423-24 (recognizing a willful and wanton

claim for the school board’s failure to prevent a known

sexually aggressive student from assaulting a known

mentally disabled student); Green v. Carlinville Cmty. Unit

Sch. Dist. No. 1, 887 N.E.2d 451, 456 (Ill. App. Ct. 2008)

(holding that a school district owed the highest degree

of care to a student on a school bus, such that the district

could be liable for the sexual abuse of the student by the

school bus driver); Doe v. Dimovski, 783 N.E.2d 193, 200 (Ill.

App. Ct. 2003) (finding allegations that the school board

knew of a teacher’s sexual misconduct with one female

student sufficient to show a conscious disregard for

the safety of other female students).

Here, Doe-2 has not alleged a special relationship

that would trigger a duty to protect on the part of the

McLean County defendants. Doe-2 was an Urbana

student not subject to these defendants’ control, and Doe-2

makes no allegation that the defendants had any

contact with her before this lawsuit. Doe-2 does not cite,

and we are not aware of, any Illinois case imposing a duty

to protect under these circumstances, where both the
14 No. 09-1936

student-victim and the place of injury are outside of the

defendant school’s authority. Cf. Dimovski, 783 N.E.2d at

200 (recognizing the school board’s potential liability to

several of its female students with whom the abusive

teacher had daily contact); Pesek v. Discepolo, 475 N.E.2d 3,

5 (Ill. App. Ct. 1985) (dismissing a claim against a

school for failing to prevent one of its students from

sexually assaulting a member of the public off school

grounds).

The defendants did complete Urbana’s Verification

of Teaching Experience form on behalf of White at

around the time that the Urbana School District hired

him, so we may assume that they suspected that White

would come into contact with Urbana students. Still,

foreseeability of a risk that White would harass Urbana

students is not enough to create a duty to protect, absent

a special relationship. See Iseberg, 879 N.E.2d at 288-89

(declining to abandon the special relationship doctrine

in favor of an affirmative duty to prevent reasonably

foreseeable injuries).

Although the defendants had no duty to protect Doe-2

from White’s third-party attack, another possible tort

theory is that it was the defendants’ own actions that

injured Doe-2. Illinois common law imposes a duty of

“reasonable care to avoid injuring other people.” Cuyler,

362 F.3d at 953. While persons generally have no duty

to protect against dangers created by third parties, they

do have a duty to protect against harms created by their

own conduct. See id.; Restatement (Second) of Torts § 314

cmt. d (1965) (The rule that an actor ordinarily has no
No. 09-1936 15

duty to protect others “applies only where the peril in

which the actor knows that the other is placed is not due

to any active force which is under the actor’s control.”);

cf. Thames, 645 N.E.2d at 451 (observing that the

student had not alleged that school officials “created

the position of peril that was ultimately injurious”).

It is not entirely implausible to characterize the defendants’ actions, rather than White’s, as the source of Doe-2’s

injury. Doe-2 argues that the defendants took deliberate

steps to secure a new position for White in the Urbana

School District, all while concealing White’s known

history of sexual harassment. By directing White

toward Urbana students in this manner, the defendants

created the risk that White would harass Doe-2 and, in

so doing, assumed a duty to protect her.

Ultimately, however, we conclude that Doe-2’s allegations do not support the theory that the defendants

created the risk that White would injure her. Although

Doe-2 claims that the defendants carefully orchestrated

White’s transfer to Urbana, none of the alleged facts

indicates that the defendants encouraged the Urbana

School District to hire White or otherwise promoted his

employment there. On the contrary, Doe-2’s own complaint charges that the Urbana School District never

bothered to perform the ministerial act of checking

White’s employment record from the McLean County

School District before hiring him.

As noted, the defendants did complete Urbana’s Verification of Teaching Experience form and a letter of recommendation on behalf of White, neither of which men-
16 No. 09-1936

tioned White’s sexual harassment. Doe-2 makes much of

the verification form, and in particular, the defendants’

alleged misrepresentation on the form that White

taught for a full “180 days” during the 2004-05 school

year, even though the defendants entered into the severance agreement with White in April 2005, before the end

of the school year.

Yet even if the defendants did misrepresent White’s

employment record in their correspondence to the

Urbana School District, Doe-2 fails to explain how this

misrepresentation would breach any duty owed to her. A

referring employer may be liable for failing to disclose

a former employee’s misconduct, if the employer has

a special or fiduciary relationship with the plaintiff

that raises a duty to speak. Neptuno Treuhand-Und

Verwaltungsgesellschaft Mbh v. Arbor, 692 N.E.2d 812, 817-

18 (Ill. App. Ct. 1998). As we have discussed, Doe-2 has

not alleged a special relationship—indeed, “no prior

relationship of any kind,” id. at 817—with the defendants

that would trigger a duty to speak. Perhaps McLean

County’s purported misrepresentation of White’s employment record would be material to a misrepresentation claim brought by the Urbana School District. (We

express no opinion on the merits of such a claim.) As for

Doe-2, the defendants never said anything to her about

White, so we cannot see how any misrepresentations in

the recommendation letter or verification form sent to

Urbana would advance Doe-2’s tort claims. See Sassak v.

City of Park Ridge, 431 F. Supp. 2d 810, 819 (N.D. Ill. 2006)

(rejecting abused arrestees’ misrepresentation claim

against a former employer who concealed the abusing
No. 09-1936 17

officer’s misconduct on the ground that the arrestees

never learned of the misrepresentation).

In sum, although Doe-2 would have us infer that the

defendants actively facilitated the placement of White in

her Urbana classroom, the alleged facts do not support

that conclusion. The essence of Doe-2’s complaint is that

the defendants should have told Urbana school officials

and other authorities about White’s suspected harassment. Their failure to do so did not breach any duty owed

to Doe-2.

No doubt the defendants’ alleged non-disclosure of

White’s sexual harassment is troubling, and we hope that

school officials would be more proactive in protecting

students, even those outside of their own districts, from

abusive teachers. In that regard, we 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, 325 ILCS 5/4-5/4.02, which we trust will give

Illinois school officials an extra incentive (if they needed

one) to disclose their teachers’ known acts of sexual

harassment.

Our decision also does not leave student victims like

Doe-2 without a remedy for their school districts’ failure

to respond to harassment by teachers. As mentioned

above, Doe-2 has already settled with the Urbana defendants who employed White at the time of Doe-2’s injury.

We also note, but reserve comment on, another case

pending against these McLean County defendants
18 No. 09-1936

brought by McLean County students abused by White.

Doe ex rel. Doe v. White, 627 F. Supp. 2d 905 (C.D. Ill. 2009).

III. Conclusion

The McLean County School District lacked the control

over Doe-2’s injury that could give rise to Title IX liability,

and the defendants breached no duty to Doe-2 enforceable

under Illinois tort law. We AFFIRM the district court’s

dismissal of Doe-2’s complaint for failure to state a claim.

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