In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1039

N.R. DOE, et al.,

Plaintiffs-Appellants,

v.

ST. FRANCIS SCHOOL DISTRICT,

Defendant-Appellee,

KELLY SWEET,

Defendant,

and

COMMUNITY INSURANCE CORPORATION,

Intervening Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09-C-0545—Charles N. Clevert, Jr., Chief Judge.

ARGUED MAY 30, 2012—DECIDED SEPTEMBER 10, 2012

Before EASTERBROOK, Chief Judge, and BAUER and

POSNER, Circuit Judges.
2 No. 12-1039

POSNER, Circuit Judge. This suit, by a 14-year-old eighth

grader and his parents (whom we can ignore, and so

we refer to the boy as the plaintiff), seeks to impose

liability on the school district for sexual abuse by a 26-yearold female teacher, Kelly Sweet, no longer employed by

the school. The plaintiff is of course not named “N.R.

Doe” but is being permitted to litigate pseudonymously.

The suit alleges that the failure of the public school

district (named “St. Francis” because it is in a town of

that name—it is not a parochial school) to prevent the

abuse violated the plaintiff’s rights under Title IX of the

federal Education Amendments Act of 1972, 20 U.S.C.

§ 1681, and also constituted negligent infliction of emotional distress under Wisconsin tort law. Psychological

harm is alleged and damages sought. The district court

granted summary judgment in favor of the school district and certified the dismissal for immediate appellate review. Fed. R. Civ. P. 54(b). The suit remains

pending in the district court against Sweet. The school’s

insurer intervened as a defendant-appellee but has not

filed a brief and can be ignored.

Title IX prohibits sex discrimination in educational

programs that receive federal financial assistance. 20 U.S.C.

§ 1681(a). Although the statute doesn’t mention a private

right of action, the Supreme Court has held that such a

right is implied, Cannon v. University of Chicago, 441 U.S.

677, 717 (1979), and entitles the successful plaintiff to

damages. Franklin v. Gwinnett County Public Schools, 503

U.S. 60, 76 (1992). But as in cases under the Civil Rights Act

of 1871, 42 U.S.C. § 1983, a school district sued in a private
No. 12-1039 3

suit under Title IX cannot be held liable on the ground of

respondeat superior for an employee’s violation of the

statute. Gebser v. Lago Vista Independent School District,

524 U.S. 274, 285 (1998). The plaintiff must prove that

“an official of the school district who at a minimum

has authority to institute corrective measures . . . has

actual notice of, and is deliberately indifferent to, the

teacher’s misconduct.” Id. at 277; see also id. at 290. In

Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 2004), we said

with reference to the first of these requirements (and the

only one we need discuss)—“actual notice”—that the

plaintiff must prove “actual knowledge of misconduct,

not just actual knowledge of the risk of misconduct.” See

also Hansen v. Board of Trustees, 551 F.3d 599, 605 (7th

Cir. 2008); J.F.K. v. Troup County School District, 678

F.3d 1254, 1260 (11th Cir. 2012).

These are not perspicuous formulations. “Actual notice” and “deliberate indifference” are redundant, and

“actual notice” and “actual knowledge” are not necessarily synonyms. What’s clear is that a school district’s

liability must be personal rather than vicarious, but we

need a clearer statement of the standard for holding

officials liable than the statements we just quoted. The

standard has gotten a lot of attention in civil rights cases

under 42 U.S.C. § 1983, which generally apply, or at least

articulate, the criminal standard of recklessness—conscious

disregard of a substantial and unjustifiable risk of causing

harm. See, e.g., United States v. Boyd, 475 F.3d 875, 876 (7th

Cir. 2007); West v. Waymire, 114 F.3d 646, 649-52 (7th Cir.

1997); American Law Institute, Model Penal Code § 2.02(2)(c)
4 No. 12-1039

(1962). But as we pointed out in the West case, many

section 1983 cases not involving cruel and unusual punishments apply instead the tort standard of recklessness—“conscious disregard of known or obvious dangers.”

114 F.3d at 651 (emphasis in original); W. Page Keeton et

al., Prosser & Keeton on the Law of Torts § 34, pp. 212-13 (5th

ed. 1984). See, e.g., Board of County Commissioners v. Brown,

520 U.S. 397, 410-15 (1997); Jones v. Town of East Haven, No.

10-4731-cv(L), 2012 WL 3104523, at *7 (2d Cir. Aug. 1,

2012); Sanford v. Stiles, 456 F.3d 298, 309-10 and n. 13 (3d

Cir. 2006) (per curiam) (noting the conflict in standards).

And we have found a Title IX case that uses a similar

formula: Escue v. Northern Oklahoma College, 450 F.3d

1146, 1153-54 (10th Cir. 2006).

But there is less to the conflict in standards than meets

the eye, because in practice there is little difference between known and obvious, the former being a natural

inference from the latter. Keeton et al., supra, § 34, pp. 213-

14. Choosing between them in this case would not affect

the outcome.

The school district concedes misconduct by the

teacher. After an exchange of text messages in which she

told the boy that she wanted him to be her boyfriend,

she invited him to her apartment. He accepted the invitation and when he arrived they spent 15 to 20 minutes

kissing and petting. (She concedes the kissing but denies

the petting.) Sexually suggestive text messages followed,

though no further physical contact. Although Sweet and

the boy had agreed to keep their relationship secret, one

or more of the messages were discovered by the boy’s
No. 12-1039 5

mother. She then transferred him to a private school.

Sweet was fired, prosecuted, and pleaded guilty to fourthdegree sexual assault in violation of Wis. Stat.

§ 940.225(3m).

Sweet was disliked by the other eighth-grade teachers.

They thought she failed to maintain discipline. One of

them complained to the school’s principal that Sweet

was text messaging during the school day. She denied

it. The principal told her not to send text messages on

the job. Complaints about Sweet’s classroom management and text messaging reached the school district’s

superintendent, Carol Topinka, who told the principal

to investigate the allegations. Sweet denied the allegations and the principal was satisfied. But Topinka was

not and interviewed several of the other eighth-grade

teachers. They complained that Sweet had “breached

the line” and “blurred the line” by treating students as

friends—including our plaintiff. One of the teachers,

Elizabeth Gridley, said that Sweet and the plaintiff had

something “like an eighth grade girlfriend/boyfriend

relationship,” “like a crush.” Topinka asked Gridley

whether she thought there was anything illegal going on

and she said no. And the teachers acknowledged to

Topinka that they had no evidence to confirm their suspicions. Topinka interviewed Sweet and concluded that

her denials of any impropriety were sincere. There

matters stood until the discovery of the relationship by

the plaintiff’s mother and the report of it to the school,

whereupon prompt measures to terminate Sweet

were undertaken.
6 No. 12-1039

Topinka must have considered the possibility that

Sweet and the plaintiff were romantically involved when

she asked Gridley whether she suspected that Sweet was

doing anything “illegal.” Gridley said she didn’t suspect

that, and Sweet denied any improprieties, and it is not

clear what further investigation Topinka should have

conducted at that point. No matter. Neither Topinka

nor the principal knew about the relationship (still in

the text-messaging stage) before it culminated in the

apartment visit, and indeed till after the plaintiff’s

mother discovered the text messages. Nor was the relationship obvious.

What the principal and the superintendent knew

was that Sweet’s colleagues, in particular Gridley, suspected an improper relationship between Sweet and

the plaintiff. But to know that someone suspects something is not to know the something and does not mean

the something is obvious. The plaintiff unwittingly concedes this in his reply brief when he states that

“Gridley’s and the other Teachers’ reports of an inappropriate romantic relationship between Sweet and NR

Doe, including Sweet’s reciprocation of NR Doe’s crush,

and of their concern for NR Doe, was sufficient to put

the School District on notice of misconduct suggesting

sexual harassment.” The term we’ve italicized denotes

merely knowledge that would cause a reasonable person

to investigate further. It is what in securities law is

called “inquiry notice.” Merck & Co. v. Reynolds, 130 S. Ct.

1784, 1797-98 (2010); McCann v. Hy-Vee, Inc., 663 F.3d

926, 929-30 (7th Cir. 2011); City of Pontiac General Employees’ Retirement System v. MBIA, Inc., 637 F.3d 169, 173-74 (2d
No. 12-1039 7

Cir. 2011). It falls well short of recklessness in either the

civil-law or the criminal-law sense.

Elsewhere the brief states that “the information

provided by the Teachers showed a known or obvious

risk of sexual misconduct by Sweet.” Known to whom?

Not to the principal or the superintendent. We add unnecessarily that neither is there any proof of a deliberate

failure by the school district to take prompt remedial

action. Not only because Topinka did act promptly

after learning of the improper nature of the relationship between Sweet and the plaintiff, but also because

it is unclear what more Topinka should have done after

hearing Sweet’s denials. The plaintiff suggests that she

should have questioned the plaintiff and his parents and

other students, but that would have caused considerable

distress to the plaintiff’s parents (who had encouraged

his friendly relationship with Sweet without having

any idea that it had a romantic or sexual dimension) and

would have distracted the other students from

their studies.

Judges must be sensitive to the effects on education of heavy-handed judicial intrusion into school disciplinary issues, or heavy-handed administrative intrusion required by judges interpreting Title IX and other

statutes that, along with free-wheeling interpretations

of the speech and religion clauses of the First Amendment, have made education one of the most heavily

regulated American industries. See, e.g., Barbara A. Lee,

“Fifty Years of Higher Education Law: Turning the Kaleidoscope,” 36 J. College & University L. 649 (2010). Let us
8 No. 12-1039

not forget that one component of academic freedom

is the right of schools to a degree of autonomy in the

management of their internal affairs. See Brandt v. Board

of Education, 480 F.3d 460, 467 (7th Cir. 2007); Crowley

v. McKinney, 400 F.3d 965, 969-70 (7th Cir. 2005); Robert

M. O’Neil, “Judicial Deference to Academic Decisions:

An Outmoded Concept?” 36 J. College & University L.

729 (2010).

What we have said so far also disposes of the supplemental state law claim for negligent infliction of

emotional distress. Wisconsin law provides immunity

for exercises of discretion by public officials unless an

official disregards a known danger. Wis. Stat. § 893.80(4);

Pries v. McMillon, 784 N.W.2d 648, 655-56 (Wis. 2010);

Lodl v. Progressive Northern Ins. Co., 646 N.W.2d 314, 320-24

(Wis. 2002). But again the danger must be known to the

official, not known to someone else (in this case, merely

suspected by someone else) and communicated to the

official without proof. Lodl v. Progressive Northern Ins. Co.,

supra, 646 N.W.2d at 320-24; C.L. v. Olson, 422 N.W.2d 614,

622-23 (Wis. 1988); Heuser ex rel. Jacobs v. Community Ins.

Corp., 774 N.W.2d 653, 659-60 (Wis. App. 2009).

AFFIRMED.

9-10-12