In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-2700

NICOLE DELGADO,

Plaintiff-Appellant,

v.

JAMES C. STEGALL and

WESTERN ILLINOIS UNIVERSITY,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 01-1332—Michael M. Mihm, Judge.

____________

ARGUED APRIL 5, 2004—DECIDED MAY 4, 2004

____________

Before BAUER,POSNER, andDIANE P.WOOD, Circuit Judges.

POSNER, Circuit Judge. Nicole Delgado, a former student

at Western Illinois University, a state university, claims to

have been harassed by a professor at the university named

James Stegall. She filed this suit for damages against the

university under Title IX of the Educational Amendments of

1972, 20 U.S.C. §§ 1681-1688, and against Stegall under the

Civil Rights Act of 1871, 42 U.S.C. § 1983. The district judge

granted summary judgment for both defendants. He ruled

that Delgado had failed to establish a violation of Title IX by
2 No. 03-2700

the university and that Title IX provides the exclusive

federal remedy for a teacher’s misconduct toward a student;

the latter ruling let Stegall off the hook.

Delgado, a music student at Western Illinois, was hired by

her voice teacher, Stegall, to be his “office assistant” during

her sophomore year. The record does not reveal the duties

of the position except that they were somehow connected to

Stegall’s job as choral director. Part-time work for professors

is a common activity of college students, and although

sexual harassment of university employees is not actionable

under Title IX if the employee could obtain relief under Title

VII, Waid v. Merrill Area Public Schools, 91 F.3d 857, 861-

62 (7th Cir. 1996); Lakoski v. James, 66 F.3d 751, 753-58 (5th

Cir. 1995), there is no contention that the kind of part-time

position that Delgado held (whatever exactly it involved),

even though it made her an employee of the university,

precludes her from complaining that she was harassed as a

student and therefore can seek a remedy under Title IX. We

cannot find any cases dealing with the question but it seems

to us that harassment of a student interferes with her

educational experience whether or not she is also a parttime employee; the harassment of a nonstudent employee

could have no such effect.

Stegall made advances to Delgado after she became his

office assistant, repeatedly asking her “Do you love me?”

and “Would you ever marry a man like me?” He would also

ask her for hugs, rub her shoulders, and tickle her. Troubled

by these attentions, she confided her distress to another

music teacher, a woman, who told her to “remove herself

from the situation, get herself to counseling, get her parents

involved, and go see the chair and/or the dean.” She did

speak to a counselor about things that were bothering her,

including “the uncomfortableness of the comments [Stegall]

was making.” But neither the counselor nor the music
No. 03-2700 3

teacher reported Stegall’s misconduct to his dean or any

other university official. Eventually, however, though only

after transferring to another college, Delgado filed a complaint with Western Illinois University against Stegall. The

university responded by directing him to undergo training

in proper behavior toward female students and by placing

“a letter . . . in Dr. Stegall’s personnel file, outlining the

actions to be taken and the method for evaluating their

effectiveness.”

It turns out that Stegall had made advances to three other

woman students, but they had never filed complaints and

his conduct hadn’t come to the attention of the university

administration. Actually there had been a fourth episode,

ten years earlier, that had led to a complaint being made to

the university about Stegall but Delgado makes nothing of

this—in fact does not even mention it in her briefs.

Two years before Stegall’s alleged harassment of Delgado,

his dean, James Butterworth, Dean of the College of Fine

Arts and Communications at the university, had investigated possible sexual harassment by unnamed members of

the art faculty. Stegall was and is a member of the music

department, however, and no harassment by music faculty

had been reported. Butterworth responded to the allegations

concerning the art department by recommending to the

university’s president and provost the elimination of alcohol

from social events sponsored by the department at which

both teachers and students were present, the convening of

meetings with current and incoming students to discuss the

university’s rules on fraternization and harassment, and the

distribution of copies of the rules to all faculty. The recommendations were adopted and implemented.

Title IX prohibits sex discrimination in educational programs or activities supported by federal grants. 20 U.S.C.
4 No. 03-2700

§ 1681(a). The only remedy specified in the statute is the

elimination of the federal funding, § 1682, but in Cannon v.

University of Chicago, 441 U.S. 677, 717 (1979), the Supreme

Court held that the statute by implication entitles a person

injured by a violation to sue for damages. When, however,

the claim for damages is based on the behavior of a teacher

or of some other employee of the Title IX recipient, the

plaintiff must prove that “an official of the [defendant

educational institution] who at a minimum has authority to

institute corrective measures . . . has actual notice of, and is

deliberately indifferent to, the teacher’s misconduct.” Gebser

v. Lago Vista Independent School District, 524 U.S. 274, 277

(1998); see also id. at 290-91; Davis v. Monroe County Board of

Education, 526 U.S. 629, 642-43 (1999); Gabrielle M. v. Park

Forest-Chicago Heights, Illinois School Dist. 163, 315 F.3d 817,

821 (7th Cir. 2003); Hayut v. State University of New York, 352

F.3d 733, 750-53 (2d Cir. 2003). Western Illinois concedes

that both Dean Butterworth and the chairman of the music

department were officials clothed with the requisite authority. But it denies that either of them had actual notice of

Stegall’s misconduct toward Nicole Delgado (or any other

student—which Delgado, by failing to mention the incident

ten years earlier, has in effect conceded) or was deliberately

indifferent to that misconduct.

Here a peculiarity of the Supreme Court’s formula should

be noted. Ordinarily, actual notice and deliberate indifference are alternative paths to proving knowledge. Deliberate

indifference means shutting one’s eyes to a risk one knows

about but would prefer to ignore. Boncher v. Brown County,

272 F.3d 484, 486 (7th Cir. 2001); Collignon v. Milwaukee

County, 163 F.3d 982, 988 (7th Cir. 1998); Griffin v. City of

Opa-Locka, 261 F.3d 1295, 1314 (11th Cir. 2001). It thus

corresponds to the criminal definition of recklessness, Delaney v. DeTella, 256 F.3d 679, 686 (7th Cir. 2001);

Collignon v. Milwaukee County, supra, 163 F.3d at 988;
No. 03-2700 5

Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); Weaver

v. Shadoan, 340 F.3d 398, 410 (6th Cir. 2003), which the law

treats as the equivalent of intentionality. TRW Title Ins. Co.

v. Security Union Title Ins. Co., 153 F.3d 822, 828 (7th Cir.

1998); United States v. Ladish Malting Co., 135 F.3d 484,

488 (7th Cir. 1998); J.I. Case Credit Corp. v. First National Bank,

991 F.2d 1272, 1278 (7th Cir. 1993); McGinty v. State, 193 F.3d

64, 69-70 (2d Cir. 1999). For “if a person with a lurking

suspicion goes on as before and avoids further knowledge,

this may support an inference that he has deduced the truth

and is simply trying to avoid giving the appearance (and

incurring the consequences) of knowledge.” United States v.

Ramsey, 785 F.2d 184, 189 (7th Cir. 1986); see also United

States v. Giovannetti, 919 F.2d 1223, 1226-29 (7th Cir. 1990).

But under the Supreme Court’s formula, the plaintiff in a

Title IX damages suit based on a teacher’s behavior must

prove actual knowledge of misconduct, not just actual

knowledge of the risk of misconduct, and must also prove

that the officials having that knowledge decided not to act

on it.

There is less to the distinction than meets the eye. Obviously a school’s officials know in a general sense that there

is a risk that one or more of its teachers will harass a student

sexually, even if no such incident has ever occurred in the

school. That is not the kind of knowledge that establishes

recklessness should the officials take no action against the

risk. When 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, Higgins v. Correctional Medical

Services of Illinois, Inc., 178 F.3d 508, 511 (7th Cir. 1999); West

By and Through Norris v. Waymire, 114 F.3d 646, 650-52 (7th

Cir. 1997); Billman v. Indiana Dept. of Corrections, 56 F.3d 785,

788 (7th Cir. 1995); Coleman v. Rahija, 114 F.3d 778, 785-

86 (8th Cir. 1997), for it is only in such cases that reckless-
6 No. 03-2700

ness regarding the consequences if the risk materializes

merges with intention to bring about the consequences

(more precisely, to allow the consequences to occur though

they could readily be prevented from occurring). And that

ought to be enough for liability under Title IX.

So if, for example, Stegall had been known to be a serial

harasser, Butterworth might well be found to have had a

sufficient approximation to actual knowledge that Delgado

would be harassed to satisfy the Supreme Court’s standard.

After all, in Davis the Court required knowledge only of

“acts of sexual harassment” by the teacher, Davis v. Monroe

County Board of Education, supra, 526 U.S. at 641, not of previous acts directed against the particular plaintiff. See also

id. at 653-54 (attaching significance to the fact that there

were “multiple victims who were sufficiently disturbed by

G. F.’s misconduct to seek an audience with the school

principal”); Baynard v. Malone, 268 F.3d 228, 238 (4th

Cir. 2001); P.H. v. School District of Kansas City, 265 F.3d

653, 661-63 (8th Cir. 2001). But Stegall was not known by

anyone in the university administration, such as Dean

Butterworth, to be harassing other students. To repeat,

Delgado attaches no weight to the ten-year-old episode,

which would in any event be only weak evidence that

Stegall’s current students were at so high a risk of being

harassed by him that university officials’ knowledge of the

earlier episode would make them reckless for having failed

to take steps to prevent a recurrence.

Delgado’s second claim is against Stegall and is based not

on Title IX (which it could not be based on because only the

educational institution itself—the grant recipient—can be a

defendant in a suit under that statute, Boulahanis v. Board of

Regents, 198 F.3d 633, 640 (7th Cir. 1999); Smith v.

Metropolitan School Dist., 128 F.3d 1014, 1018-21 (7th Cir.

1997); Kinman v. Omaha Public School Dist., 171 F.3d 607, 609-
No. 03-2700 7

11 (8th Cir. 1999)), but on 42 U.S.C. § 1983, which creates a

remedy for a person who is deprived of his or her federal

rights under color of state law. Stegall is a state actor who,

if the facts alleged by Delgado are correct, as we must

assume in the posture of the case before us that they are,

used his position to discriminate against her on the basis of

her sex, in violation of her federally protected right to the

equal protection of the laws. Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 66-67 (1986). The question is whether by

enacting Title IX Congress intended to extinguish the right

to sue under section 1983 that Delgado would otherwise

have. The district judge felt constrained by this court’s

decisions to answer yes, though he also expressed his disagreement with those decisions and with the result that they

seemed to him to dictate in this case. We think his instincts

were sound, but that the cases in question are distinguishable from the present one.

The doctrine to which Stegall appeals originated in

Middlesex County Sewerage Authority v. National Sea Clammers

Ass’n, 453 U.S. 1, 20-21 (1981), and goes by the name of the

“sea clammers” doctrine. The plaintiffs in that case sought

relief from pollution against state officials under federal

statutes that provided comprehensive and fully adequate

remedies. The Supreme Court had recently held, however,

that section 1983, though typically used to enforce federal

constitutional rights, reaches infringements of federal

statutory rights as well. Id. at 19; Maine v. Thiboutot, 448 U.S.

1, 4-8 (1980). This ruling opened up the possibility that

anyone who had a federal statutory remedy for a harm

inflicted under color of state law could tack on a claim for

relief under section 1983 as well. Worse, even if Congress

hadn’t intended that a particular federal statute be enforceable by private damages suits, a person injured by a violation of the statute would be able to enforce it privately

under section 1983. By doing so he would not only be
8 No. 03-2700

bypassing the need to show that Congress in enacting the

statute had intended that there be a private right to enforce

it, but indeed acting contrary to Congress's intent. So, in the

sea-clammers case, the Court decided to limit Thiboutot:

after rejecting the plaintiffs’ statutory claims, the Court held

that section 1983 was not an available alternative because “it

is hard to believe that Congress intended to preserve the

§ 1983 right of action when it created so many specific

statutory remedies.” 453 U.S. at 20. The completeness of

those remedies showed that Congress “intended to supplant

any remedy that otherwise would be available under

§ 1983.” Id. at 21.

The sea-clammers doctrine has been applied in a variety

of contexts since its creation. See, e.g., PrimeCo Personal

Communications, Ltd. Partnership v. City of Mequon, 352

F.3d 1147, 1151-53 (7th Cir. 2003); Lollar v. Baker, 196 F.3d

603, 608-10 (5th Cir. 1999); Mattoon v. City of Pittsfield, 980

F.2d 1, 5-6 (1st Cir. 1992); Zombro v. Baltimore City Police

Dept., 868 F.2d 1364, 1366-70 (4th Cir. 1989). Of particular

significance for the present case is our application of it

in two cases that provide the entire basis for Stegall’s argument and the district court’s ruling. They are Waid v.

Merrill Area Public Schools, supra, 91 F.3d at 862-63, and

Boulahanis v. Board of Regents, supra, 198 F.3d at 639-40. In

Waid a teacher, and in Boulahanis student athletes, complaining of sex discrimination, brought suit against the educational institution itself under Title IX, and also against

employees of the institution under section 1983, and we

held that the sea-clammers doctrine barred the section 1983

claims. The individual defendants in the two cases, however, were not teachers or other ordinary employees. In

Waid they were the school district’s director of curriculum

and the principal of the school that had passed over Waid

for a permanent appointment, and we described them as

“officers” and “officials” of the school district. 91 F.3d at
No. 03-2700 9

862. In Boulahanis, similarly, the individual defendants are

described as university “officials,” though without further

specification. 198 F.3d at 639.

It is easy to see why Title IX might be thought to supplant

section 1983 suits against the school officials responsible for

the policy or practice that violates Title IX, though not all

courts agree. Compare Pfeiffer v. Marion Center Area School

District, 917 F.2d 779, 789 (3d Cir. 1990), which we followed

in Waid and Boulahanis, and also Bruneau ex rel. Schofield v.

South Kortright Central School District, 163 F.3d 749, 756-

59 (2d Cir. 1998), with Crawford v. Davis, 109 F.3d 1281, 1283-

84 (8th Cir. 1997); Seamons v. Snow, 84 F.3d 1226, 1233-34

(10th Cir. 1996), and Lillard v. Shelby County Board of Education, 76 F.3d 716, 722-24 (6th Cir. 1996), all rejecting the

holding of Pfeiffer. The issue was expressly left open by the

Supreme Court in Gebser. 524 U.S. at 292. Title IX, especially

having been interpreted in Cannon to provide a damages

remedy, furnishes all the relief that is necessary to rectify

the discriminatory policies or practices of the school itself.

But it is quite otherwise in a case such as this, in which the

malefactor is a teacher whose malefaction is not a policy or

a practice for which the school could be held liable under

Title IX. In Bruneau, Crawford, and Lillard, teachers were

named as section 1983 defendants along with school

officials, but nothing was made of the distinction between

the two types of defendant. The distinction is crucial. The

only possible effect of applying the sea-clammers doctrine

to this case would be to immunize Stegall from liability for

his federal constitutional tort. How this could be thought to

have been intended by Congress when it enacted Title IX

without providing any damages remedy, or to advance the

policies of that statute, is beyond us.

Stegall argues feebly that since states often indemnify

their employees for tortious misconduct, the university may
10 No. 03-2700

be harmed financially if he is held liable to Delgado under

section 1983. If such liability pinches the university, then it

can cease indemnifying such tortfeasors; no statutory

change would be necessary, because Illinois law requires the

state to indemnify its employees only for the torts they

commit within the scope of their employment. 5 ILCS

350/2(d); Nichol v. Stass, 735 N.E.2d 582, 587 (Ill. 2000); cf.

745 ILCS 10/9-102; Doe v. City of Chicago, 360 F.3d 667,

670 (7th Cir. 2004); see generally Dan B. Dobbs, The Law of

Torts § 273, p. 733 (2000). At common law the duty of

indemnity actually runs the other way—the employee who

commits a tort for which his employer is liable under the

doctrine of respondeat superior has a duty to indemnify the

employer if the latter is sued and loses. Id. § 333, p. 906; W.

Page Keeton et al., Prosser and Keeton on the Law of Torts § 51,

p. 341 (5th ed. 1984); Restatement (Second) of Agency § 401

and comment d (1958). Conceivably a university will have

to pay a higher wage to teachers if they are exposed to the

possibility of suit, but that is not a plausible basis for

imputing to the Congress that enacted Title IX an intent to

repeal the section 1983 rights of students. The legislators

who enacted Title IX would be startled to discover that by

doing so they had killed all federal remedies for sex discrimination by teachers of which the school lacked actual

knowledge.

Stegall is asking us in effect to rule that Congress in Title

IX repealed by implication a swatch of section 1983, though

there is no possible conflict between these two federal

statutes in cases in which relief is sought against a teacher

or other nonmanagerial employee and no hint of such a

purpose in the background or history of Title IX. The

Supreme Court has said that where two federal statutes can

coexist, the later one is not to be deemed to have repealed

the earlier one unless there is some indication of a congres-
No. 03-2700 11

sional intent to do so, even though the result may be

(though not in this case) to give the plaintiff a choice of

federal remedies. Branch v. Smith, 538 U.S. 254, 273 (2003);

J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S.

124, 141-44 (2001). Even without a presumption against

repeals by implication, Stegall’s argument would fail

because there is no reason to suppose that holding that Title

IX wiped out a big piece of section 1983 would serve any of

the purposes that animated Congress in passing Title IX.

Delgado’s suit against Stegall must therefore be reinstated.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-4-04