### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1521

J ANE D OE N O

. 55,

Plaintiff

‐ Appellant

,

v.

M ADISON M ETROPOLITAN S CHOOL D ISTRICT

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:15

‐ cv

‐ 00570

‐ bbc

— Barbara B. Crabb

, Judge

.

____________________

A RGUED N OVEMBER 30, 2017

— D ECIDED J ULY 26, 2018

____________________

Before E ASTERBROOK and M ANION

, Circuit Judges

, and

L EE

, District Judge. 

L EE

, District Judge

. The allegations in this case are trou

‐ bling, to say the least. The appellant, Jane Doe, claims that she

was sexually assaulted by a security guard at her middle

school while she was in eighth grade. Seeking redress, she

 Of the Northern District of Illinois, sitting by designation.2 No. 17

‐ 1521

filed suit against the Madison Metropolitan School District

under Title IX of the Education Amendments of 1972, 20

U.S.C. § 1681(a). To obtain damages against the school dis

‐

trict, Doe was required to prove, among other things, that a

school official had actual knowledge of the alleged conduct.

The question in this case is whether a reasonable jury could

have found, based upon the summary judgment record, that

the principal at Doe’s middle school had actual knowledge of

the security guard’s misconduct. The district court thought

not and granted summary judgment in the school district’s fa

‐

vor. We affirm.

I. B ACKGROUND

Jane Doe attended Whitehorse Middle School in the Mad

‐

ison Metropolitan School District from 2011 to 2014. During

that time, Willie Collins was a security assistant at White

‐

horse. In that capacity, Collins supervised lunch and recess,

oversaw students in detention, and monitored the school for

safety and security.

Deborah Ptak was the principal of Whitehorse, and she su

‐ pervised the entire staff, including Collins. Collins was a

larger

‐ than

‐ life presence at the school. Ptak was aware that

Collins had been a mentor and confidant to many students.

She regularly saw Collins hugging male and female students

and observed that most of the hugs were student

‐ initiated.

On a few occasions while Doe was in seventh grade, Ptak

saw Collins walk up behind Doe as she was seated at a table

in the cafeteria and rub the top of her shoulders with his

hands. Collins had not singled Doe out in this regard, how

‐

ever, as he engaged in similar physical contact with many stu

‐

dents, boys and girls alike.No. 17

‐ 1521 3

Tracy Warnecke, the school’s positive behavioral support

coach, told Ptak in the spring of 2013 that she was concerned

after seeing Doe frequently seek out Collins, initiate hugs

with Collins, and sometimes jump and hang onto him.

Warnecke informed Ptak that, on one occasion, she saw Doe

jump on Collins and kiss him on the cheek. Warnecke did note

that when Doe attempted to kiss Collins again, he rebuffed

her and spoke to Doe privately. After that, Warnecke did not

see Doe attempt to kiss Collins again. At the end of the con

‐

versation, Ptak told Warnecke that she would follow up with

Collins about Warnecke’s concerns.

Around that time, Mary McAuliffe, the school’s counselor,

notified Ptak that she and Brooke Gritt, one of Doe’s teachers,

echoed Warnecke’s concerns based on their own observations.

McAuliffe told Ptak that she and Gritt had seen Collins give

Doe a shoulder rub and had seen Doe look for Collins, hug

him, jump and hang on him, and on one occasion, attempt to

kiss Collins on the cheek. Ptak told McAuliffe that she should

speak with Doe and that Ptak would discuss the matter with

Collins.

In addition, at a school committee meeting, Karen Wyden

‐

ven, the school’s psychologist, and McAuliffe spoke to Ptak

and Warnecke about a group of seventh grade girls who were

hanging around Collins. Ptak responded, “That’s just Willie’s

personality, you know, because he’s a coach; and you know,

the kids know him.”

On April 11, 2013, Ptak met with Collins to discuss the is

‐

sues raised by Warnecke, McAuliffe and Gritt. Ptak expressed

concern for Doe’s well

‐ being and stated that Doe could have

a crush on Collins. Collins told Ptak that Doe merely had been

confiding in him about her problematic relationships with her4 No. 17

‐ 1521

family and peers and that he was providing her with support.

Ptak cautioned Collins against hugging and physically touch

‐ ing Doe and told Collins to limit any such conduct. Ptak reit

‐

erated that “clear” and “strong boundaries

... needed to be

set” and that “hugging and her jumping on him [wa]s not ap

‐ propriate.” Ptak also instructed Collins to speak to Doe only

in common areas when others were around.

Later that month, Gritt reported to McAuliffe that Doe had

been intentionally cutting herself. That same day, McAuliffe

brought up the matter with Doe, but Doe did not want to talk

to McAuliffe. McAuliffe then called Doe’s mother to report

Doe’s actions and advised Doe’s mother to obtain counseling

for Doe.

During their conversation, Doe’s mother told McAuliffe

that, after a recent family argument, Doe had run off and de

‐

leted some information from her iPad. Doe’s mother added

that, as a result, she had learned that Doe had been using Col

‐

lins’ name as her iPad password. McAuliffe mentioned to

Doe’s mother that Doe frequently had been hanging on Col

‐

lins’ arm, and that if Doe’s mother believed that Doe had an

unhealthy preoccupation with Collins, Doe’s mother should

schedule a meeting with Ptak and potentially Collins.

Shortly after McAuliffe’s conversation with Doe’s mother,

Ptak met with McAuliffe to discuss McAuliffe’s concerns

about Doe, including Doe’s self

‐ harming, her problems at

home and preoccupation with Collins, and the use of Collins’

name as her iPad password. McAuliffe told Ptak that she had

recommended that Doe’s mother seek counseling for Doe.

McAuliffe asked Ptak to speak with Doe’s mother and Collins,

and Ptak reassured McAuliffe that she would. Although it is

disputed whether Ptak left a voicemail message for Doe’sNo. 17

‐ 1521 5

mother, it is undisputed that the two never spoke about Col

‐

lins. Nor is there any evidence that Doe’s mother spoke to any

school administrator about Collins other than her initial con

‐

versation with McAuliffe, or that Ptak spoke to Collins after

this discussion with McAuliffe.

Three days after her conversation with McAuliffe, Doe’s

mother sent Collins an email apologizing to him for “drag

‐ ging [him] into the drama” with Doe. Doe’s mother stated that

she was not upset with Collins and thanked him for being so

kind to her daughter. The email did not request that Collins

cease interacting with Doe.

A week or two later, McAuliffe reported to Ptak that Gritt

had seen Collins at one of Doe’s tennis matches and that he

had stayed for five to ten minutes. During that brief time, Gritt

had not seen any contact between Doe and Collins. McAuliffe

stated she would follow up with Gritt and never raised this

incident with Ptak again.

After April 2013, Ptak noticed a significant decrease in in

‐

teraction between Doe and Collins. She did not see any phys

‐

ical contact between the two after that point.

In May 2013, McAuliffe informed Ptak and Warnecke that

Doe had attempted to get out of class by saying that she

needed Collins to help her with a “problem.” As recounted by

Warnecke, Ptak indicated to them that she had already met

with Collins about setting appropriate boundaries between

himself and Doe. That same month, Jaime Duckert, the school

district’s social worker, expressed her own concerns to Ptak

that so many students were hugging Collins. But this conver

‐

sation occurred upon Duckert’s return from a three

‐ month

maternity leave.6 No. 17

‐ 1521

Once Doe started eighth grade in the fall of 2013, Ptak was

unaware of any new instances of interaction between Doe and

Collins that raised concerns. 1 And, according to the school’s

staff, Doe was much “calmer” during eighth grade.

Then, in late August 2014, Doe told her cousin that Collins

had sexually abused her while she was in eighth grade. Doe’s

mother learned of the abuse a short time later on Doe’s first

day of high school. According to Doe, Collins had made sex

‐

ual comments to her, kissed her, fondled her breasts, rubbed

his penis against her clothed body, and digitally penetrated

her.

The Madison Police Department was notified and com

‐

menced an investigation. School district officials became

aware of the allegations against Collins, and he was immedi

‐ ately put on a leave of absence pending the investigation.

II. A NALYSIS

Title IX provides that “No person

... shall on the basis of

sex, be excluded from participating in, be denied the benefits

of, or be subjected to discrimination under any education pro

‐

gram or activity, receiving Federal financial assistance.” 20

U.S.C. § 1681(a). At bottom, Title IX does not prohibit sexual

harassment, but, rather, prohibits school districts from dis

‐

1 The appellant points to surveillance recordings from May 28, 2014, to

June 11, 2014, showing Collins having various interactions with female

students other than Doe to establish Ptak’s knowledge that Collins posed

a significant risk to Doe. But appellant’s counsel conceded at oral argu

‐

ment that it is undisputed that Ptak was unaware of the specific physical

interactions depicted in the surveillance recordings.No. 17

‐ 1521 7

criminating on the basis of sex in providing educational ben

‐

efits. See Davis v. Monroe Cty. Bd. of Educ.

, 526 U.S. 629, 652

(1999).

“[A]s in cases under the Civil Rights Act of 1871, 42 U.S.C.

§ 1983, a school district sued in a private suit under Title IX

cannot be held liable on the ground of respondeat superior for

an employee’s violation of the statute.” Doe v. St. Francis Sch.

Dist.

, 694 F.3d 869, 870 (7th Cir. 2012) (citing Gebser v. Lago

Vista Indep. Sch. Dist.

, 524 U.S. 274, 285 (1998)). Accordingly, a

Title IX plaintiff must ultimately prove that “an official who

at a minimum has authority to address the alleged discrimi

‐

nation and to institute corrective measures on the recipient’s

behalf has actual knowledge of discrimination in the recipi

‐

ent’s programs and fails adequately to respond” in a way that

“amount[s] to deliberate indifference.” Gebser

, 524 U.S. at 277,

291. To survive summary judgment, a plaintiff “must estab

‐

lish a genuine issue of fact as to whether an appropriate offi

‐

cial

... had (1) actual knowledge of misconduct

... that created

a serious risk to its students, and (2) responded with deliber

‐

ate indifference to the misconduct.” Hansen v. Bd. of Trs. of

Hamilton Se. Sch. Corp.

, 551 F.3d 599, 606 (7th Cir. 2008).

Here, the district court granted summary judgment in fa

‐

vor of the school district, concluding that Doe had failed to

raise a genuine issue of material fact as to her assertion that

Ptak had actual notice of Collin’s sexual abuse. We review a

grant of summary judgment de novo

. Brunson v. Murray

, 843

F.3d 698, 704 (7th Cir. 2016).

In Delgado v. Stegall

, we explored the contours of Title IX’s

actual notice requirement. 367 F.3d 668, 672 (7th Cir. 2004), ab

‐ rogated on other grounds by Fitzgerald v. Barnstable Sch. Comm.

,

555 U.S. 246, 259 (2009). There, a former student of Western8 No. 17

‐ 1521

Illinois University sued the school and a professor, claiming

that the professor had sexually harassed her. Id

. at 670. The

district court granted summary judgment in favor of the

school, concluding that there were no facts to support the

claim that school administrators had actual knowledge of the

teacher’s misconduct. Id. In affirming the decision, we dis

‐

cussed the Supreme Court’s holding in Gebser that damages

are only available against a school district if “an official of the

school district

... has actual notice of, and is deliberately in

‐

different to, the teacher’s misconduct” and observed a “pecu

‐ liarity of the Supreme Court’s formula.” Id. at 671. “Ordinar

‐ ily,” we noted, “actual notice and deliberate indifference are

alternative paths to proving knowledge,” with deliberate in

‐

difference—like its criminal counterpart recklessness—denot

‐ ing “shutting one’s eyes to a risk one knows but would prefer

to ignore.” Id. at 671. Nevertheless, we concluded that “under

the Supreme Court’s formula, the plaintiff in a Title IX dam

‐

ages suit based on a teacher’s behavior must prove actual

knowledge of misconduct, not just actual knowledge of the

risks of misconduct.” Id. at 672.

That said, we recognized that, at times, the line between

these two standards may blur. Id. ; see St. Francis Sch. Dist.

, 694

F.3d at 871 (noting “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 in

‐

ference from the latter.”). And, indeed, “[w]hen the cases

speak of a ‘known’ or ‘obvious’ risk that makes a failure to

take steps against it reckless they have in mind risks so great

that they are almost certain to materialize if nothing is done.”

See Delgado 367 F.3d at 672. “[I]t is only in such cases that reck

‐

lessness regarding the consequences if the risk materializes

merges with intention to bring about the consequences.” Id.No. 17

‐ 1521 9

And, by way of illustration, we suggested that if a school of

‐

ficial had knowledge that a staff member was a serial harasser,

such knowledge might suffice to satisfy the Supreme Court’s

“actual knowledge” standard, even though the official may

not have actual knowledge of the specific harassment against

the complainant. See id.

This discussion is apropos because, in this case, it is undis

‐ puted that Ptak was unaware of Doe’s allegations of sexual

abuse until after Doe had graduated from middle school. In

‐

deed, during Doe’s eighth

‐ grade year, when, according to

Doe, the sexual abuse occurred, no teacher or staff member

had reported any incidents or concerns regarding Collins and

Doe to Ptak. Nor does Ptak recall seeing any physical contact

between Collins and Doe during that school year.

As a result, the appellant relies on events that occurred

during the previous school year to establish that Ptak had ac

‐

tual knowledge, not of Collins’ abuse of Doe, but of the risk

that Collins would do so. For example, appellant points out

that Ptak had observed Collins hugging male and female stu

‐

dents in the hallways and giving them brief shoulder and

back rubs in the cafeteria. Ptak also knew that a group of sev

‐

enth grade girls was hanging around Collins. As for Collins’

interactions with Doe specifically, Ptak had observed Collins

give Doe a shoulder rub a few times in the cafeteria and was

aware that, on one occasion, Doe had kissed him on the cheek.

Ptak also was aware that Collins had allowed Doe to hug him,

as well as jump and hang on him, and that Doe had a seeming

preoccupation with Collins. And, when Ptak directed Collins

to set clear and strong boundaries and refrain from having

any physical contact with Doe, Collins informed Ptak that10 No. 17

‐ 1521

Doe had confided in him about her familial and peer relation

‐ ships and that he had supported her.

Although such facts certainly could have raised some con

‐

cern that stricter and more defined boundaries between Col

‐

lins and Doe might have been advisable during Doe’s sev

‐

enth

‐ grade year (which Ptak did impose), we agree with the

district court that a reasonable jury could not find, based on

these facts, that Ptak had actual knowledge of any sexual mis

‐

conduct on the part of Collins that created a serious risk to

Doe. Nor could a rational jury find that Ptak had actual

knowledge of a risk so great that harm to Doe was almost cer

‐

tain to materialize if nothing were done to stop it.

In this respect, our decision in St. Francis is instructive. In

that case, an eighth grader sued his school district under Title

IX after being sexually abused by his teacher. We affirmed

summary judgment in the school district’s favor because the

student had failed to create a triable issue that the school dis

‐

trict superintendent had actual knowledge of the abuse. 694

F.3d at 870, 872. The superintendent was well aware that the

teacher’s colleagues had complained that the teacher had

“blurred the line” by treating students as friends. Id. at 872.

And one of the teacher’s peers told the superintendent that

the teacher and the student “had something like an eighth

grade girlfriend/boyfriend relationship, like a crush.” But no

facts were offered to support these suspicions, and when

questioned by the superintendent, the fellow teacher denied

that the teacher was doing anything “illegal.” Id. The teacher

herself also denied any impropriety when confronted by the

superintendent, and the superintendent found her denial to

be sincere. Id. Indeed, school officials did not find out about

the relationship between the teacher and the student until theNo. 17

‐ 1521 11

student’s mother discovered text messages from the teacher

on her son’s phone. Id. Such facts, we concluded, were insuf

‐

ficient to establish actual notice because even if the principal

and superintendent knew that the teacher’s colleagues sus

‐ pected an improper relationship between her and the student,

“to know that someone suspects something is not to know the

something and does not mean the something is obvious.” Id.

The facts of this case are on par with those in St. Francis

. Here, Ptak observed Collins hugging male and female stu

‐

dents, giving male and female students shoulder rubs in the

cafeteria, permitting Doe to kiss him on the cheek on one oc

‐

casion, and playing the role of mentor and confidant to Doe

and other students. Certain staff members also expressed mis

‐ givings about Doe’s seeming preoccupation with Collins.

Such facts may have raised (and, in fact, did raise) cautionary

flags, but they are insufficient to bestow upon Ptak actual

knowledge that Collins was engaging in sexual misconduct at

the time or that there was an almost certain risk that he would

do so in the future.

What is more, it is worth iterating that things appeared to

have calmed down during the late spring of Doe’s seventh

‐ grade year. Ptak did not recall seeing any physical contact be

‐

tween Doe and Collins after that point. And to the extent that

others did, they did not report anything to Ptak.

For these reasons, the district court properly determined

that a trial was unwarranted because no reasonable jury could

find that Ptak possessed actual knowledge of misconduct that

created a serious risk of harm to Doe. And because the ab

‐

sence of a genuine issue in this regard is dispositive, we need12 No. 17

‐ 1521

not reach the other issues raised on appeal. 2 The district

court’s decision is AFFIRMED.

2 Doe’s lawyer declined an opportunity at oral argument to present facts

in the record to show that Doe had been denied equal access to education.

See Gabrielle M. v. Park Forest

‐ Chicago Heights, Ill. Sch. Dist. 163

, 315 F.3d

817, 823 (7th Cir. 2003) (citing Davis

, 526 U.S. at 652) (“[A]n action under

Title IX lies only where the behavior at issue denies a victim equal access

to education.”). Because we affirm on a different ground, we need not con

‐

sider Doe’s contention that a denial of equal access to education should be

presumed in the case of staff

‐ student sexual harassment.