In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2920
S ANDRA T.E., JANET R OE, M ARCIELO G.,
S ARA K., G. G., R UFUS E., D EBORAH K.,
L YNN A., M IKE A., A LICIA B., E MANUELE B.,
JUDITH B., G EORGE K., E LEVI S., R AYMOND S.,
C.E., T.A., R.A., JON R OE, JANE R OE,
and F RANCISCO G.,
Plaintiff-Appellees,
v.
K AREN G RINDLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05-cv-473—William J. Hibbler, Judge.
A RGUED JANUARY 14, 2010—D ECIDED M ARCH 17, 2010
Before F LAUM, R OVNER, and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. The appellant, Karen Grindle, was
principal of Pershing Elementary School at a time when
the school district’s band teacher, Robert Sperlik, molested
2 No. 09-2920
several young girls there. Sperlik was arrested once his
abuse came to light. Plaintiffs subsequently brought suit
against Sperlik and Grindle, among others, alleging
violation of 42 U.S.C. § 1983 on both equal protection and
substantive due process theories. Grindle moved for
summary judgment, claiming she was entitled to
qualified immunity because plaintiffs had failed to estab-
lish a violation of a clearly established right. The
district court denied her motion, and this appeal fol-
lowed. Because the plaintiffs have put forth evidence
which, if credited by the jury, is sufficient to create
liability under the clearly established law of this circuit,
we affirm.
I. Background
In May 2001, three classmates, referred to as C.E., Jane
Doe #2, and E.S., attended a seminar at their elementary
school about inappropriate touching. After the presenta-
tion, they wrote a letter to the presenter. The text of the
letter raised concerns about their band teacher, Sperlik.
The text of the letter reads:
Dear Mrs. Fick,
[Jane Doe #2 and C.E.] have a band teacher named
Mr. Sperlik. When we are in band we feel very uncom-
fortable because he does the following:
Rubs our legs sometimes; Rubs our back to feel for
a bra if we mess up and says it’s ok; comments [to] me
[C.E.] about my hair and how nice it looks when it’s
down; comments [to] [Jane Doe #2] about how she
No. 09-2920 3
dresses [and] that she could be a model; there is
another girl in our class and he doesn’t do anything
to her.
P.S. Please don’t tell him we told you and if you do
please don’t mention any names!!! We’re afraid to
tell our parents!
The counselor forwarded this note to Grindle, who met
with Sperlik and showed him a copy. Grindle then met
with Jane Doe #2 individually. Jane Doe #2 and Grindle
disagree about what took place during that meeting.
Jane Doe #2 maintains that she told Grindle that Sperlik
rubbed the girls’ legs, touched them on their private
areas through their clothes, and pulled against them,
pressing his penis into their backs. Grindle claims Jane
Doe #2 told her only that Sperlik would place his hand on
her knee and make a tapping motion to keep the beat.
Shortly after meeting with Jane Doe #2, Grindle met
with Jane Doe #2’s parents. Grindle told the parents about
the girls’ letter, but refused to let them see it, instead
telling them that their daughter had attended a “good
touch, bad touch” seminar that had led her to overreact
and write the letter. Grindle also told the parents that
Sperlik had innocently touched their daughter on her
shoulder and legs to help her keep time with the music.
Grindle spoke with C.E. the week after she met with
Jane Doe #2. Grindle claims that C.E. only confirmed
what was written in the letter and, like Jane Doe #2, only
indicated that she had been tapped on the knee. C.E.,
however, maintains that she told Grindle that Sperlik
would touch her private areas when he rubbed her back
4 No. 09-2920
and would also touch her breasts when he would stand
behind her. When Grindle subsequently met with C.E.’s
mother, Sandra T.E., she told her that C.E. had com-
plained about Sperlik and demonstrated the touching as
a tapping on the knee in order to keep the beat.
After meeting with the girls and their parents, Grindle
spoke with the school’s social worker, Nancy Ohalla.
Grindle told Ohalla that the girls had complained about
Sperlik touching their knees, but did not show Ohalla
the letter.
At some point, Grindle authored an undated incident
report about the girls’ complaints. Grindle claims that
she prepared this report at the direction of the school’s
director of human resources, Karen Uhren, but Uhren
does not recall meeting with Grindle or telling her to write
the report. In the report, Grindle describes Sperlik’s
conduct as she had described it to the parents. Grindle
also wrote an undated memorandum to Sperlik, informing
him of the complaints and advising him that the com-
plaints could be considered sexual harassment. In the
memorandum, Grindle directed Sperlik to avoid making
physical contact with students and to refrain from com-
ments regarding students’ appearance.
In January 2002, Grindle received another complaint
about Sperlik. A student, referred to as M.K., and her
mother, Deborah K., met with Grindle to complain about
Sperlik forcefully grabbing M.K.’s arm to restrain her.
Grindle met with Sperlik and informed M.K. that Sperlik
would no longer be allowed to teach with his classroom
doors closed. Although this was the second complaint
No. 09-2920 5
against Sperlik in less than a year, Grindle did not alert
any other school personnel to Sperlik’s ongoing behavior.
The next incident occurred in April 2002. Grindle re-
ceived an anonymous call from a parent who stated
that her daughter felt uncomfortable when Sperlik put
his fingers over hers while demonstrating proper
fingering technique. Grindle informed the district’s
superintendent, William Jordan, about the call. Grindle
also informed Jordan about the complaints made by Jane
Doe #2 and C.E. the year before, but presented them as a
“pedagogical issue” rather than potential sexual harass-
ment. At Jordan’s direction, Grindle met with Mary Lee
Bocwinski, the district’s director of curriculum. Grindle
told Bocwinski that there had been an “incident” with
Sperlik the previous year that had been resolved to every-
one’s satisfaction, but did not inform Bocwinski about
the contents of the letter written by C.E. and Jane Doe #2.
Grindle and Bocwinski addressed the anonymous com-
plaint as a teaching methods issue rather than sexual
harassment.
In January 2005, C.E. told her mother that Sperlik
used to bind her with duct tape during band class. Sandra
T.E. reported Sperlik’s behavior to the Berwyn Police
Department, which launched a criminal investigation
and shortly thereafter arrested Sperlik. As a result of
Sperlik’s arrest, several other victims were identified.
Each of these students reported that Sperlik bound
them with duct tape—typically this was presented by
Sperlik as a “game”—and several reported that he had
rubbed their thighs or touched their breasts. This abuse
6 No. 09-2920
took place between 2001 and 2005, much of it after C.E. and
Jane Doe #2 wrote to Grindle. Sperlik has since pleaded
guilty to multiple counts of aggravated kidnaping and
aggravated criminal sexual abuse, admitting that he
abused his students for sexual gratification based on
his interest in bondage pornography.
Plaintiffs began the present suit on January 26, 2005. On
February 27, 2009, the parties filed cross-motions for
summary judgment. On July 23, 2009, the district court
granted summary judgment in favor of all individual
defendants except for Grindle and Sperlik. 1 Grindle
appeals, arguing that the plaintiffs’ substantive due
process and equal protection claims are barred by the
doctrine of qualified immunity.
II. Analysis
We review de novo a district court’s denial of summary
judgment on qualified immunity grounds. Baird v.
Renbarger, 576 F.3d 340, 343-44 (7th Cir. 2009). In so doing,
we view the facts in the light most favorable to the plain-
tiffs. Shipman v. Hamilton, 520 F.3d 775, 778 (7th Cir. 2008).
When determining if an official is entitled to qualified
1
In addition to the § 1983 claims discussed in this appeal,
plaintiffs brought Title IX and state law claims against the
school district and several school officials. The Title IX claim
and several of the state law claims against the district and
the plaintiffs’ claims against Sperlik individually are cur-
rently set for trial.
No. 09-2920 7
immunity, we first ask if the facts show that the
official conduct violated a constitutional right. If they do,
we ask whether the violated right was “clearly established”
at the time of alleged violation. If so, the official is not
entitled to qualified immunity from suit. See Michael C. v.
Gresbach, 526 F.3d 1008, 1013 (7th Cir. 2008).
We begin with plaintiffs’ equal protection claim. We
have previously held that sexual abuse by a teacher can
deprive a student of his or her right to equal protection
under the law. See Doe v. Smith, 470 F.3d 331, 334 (7th Cir.
2006).2 Grindle concedes that under this court’s decision
in Nanda v. Moss, 412 F.3d 836 (7th Cir. 2005), she could
be held liable for the equal protection violation of a sub-
ordinate that occurred with her knowledge and con-
sent. Nanda, however, was decided in June 2005, four
years after Grindle’s meetings with C.E. and Jane Doe #2,
and several months after Sperlik’s arrest. Because her
conduct pre-dated Nanda, she argues, the constitutional
right she allegedly violated was not clearly established
at the time. Grindle argues that she could not be held
liable under the equal protection analysis in an earlier
case, Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).
In Nabozny, we relied on the plaintiffs’ allegation that
male-on-female harassment was punished differently
2
In Doe, we held that the plaintiffs’ § 1983 claims against
school officials other than the alleged abuser were preempted
by Title IX. The Supreme Court has since decided Fitzgerald
v. Barnstable, 129 S. Ct. 788 (2009), which held that Title IX
does not preempt § 1983 lawsuits against school officials or
school districts.
8 No. 09-2920
than male-on-male harassment to reverse a grant of
summary judgment, noting that “[i]f Nabozny’s evidence
is considered credible, the record taken in conjunction
with the defendants’ admissions demonstrates that the
defendants treated male and female victims differently.”
92 F.3d at 454-55.
The fact that Nanda was decided after her allegedly
unconstitutional conduct does not entitle Grindle to
qualified immunity. Nanda was a straightforward ap-
plication of the standard of supervisory liability articulated
in Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988). In
Jones, we held that while there is no theory of respondeat
superior for constitutional torts, supervisors can violate
the Constitution themselves if they “know about the
[unconstitutional] conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what they
might see.” Id. at 992. Indeed, we rejected a qualified
immunity defense in Nanda because it was well-established
that sexual harassment in an educational setting can
violate the equal protection clause, and that an admin-
istrator’s ratification of that conduct could also violate
the Equal Protection Clause. Id. at 844. This law was no
less developed in 2001-2005, when Grindle ignored
her students’ complaints, than it was in 1998, when the
defendant in Nanda ignored complaints from faculty
stating that the plaintiff’s termination was gender-based.
At the time of the events at issue in this litigation, it
was clearly established in this circuit that a supervisor
could be held liable for participating in or deliberately
turning a blind eye to the equal protection violation of
her subordinate.
No. 09-2920 9
The parties focused their briefing on whether a theory
of supervisory liability for equal protection claims was
clearly established at the time of Grindle’s conduct.
However, as the Supreme Court has made clear in
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), an equal protection
claim against a supervisor requires a showing of inten-
tional discrimination. Because there is no theory of
respondeat superior for constitutional torts, a plaintiff
“must plead that each Government-official defendant,
through the official’s own individual actions, has violated
the Constitution.” Id. at 1948. In the equal protection
context, this means showing that the supervisor, like the
subordinate, intended to discriminate on the basis of a
protected class. Id. at 1948-49. While it appears that our
precedent would have previously allowed a plaintiff to
recover from a supervisor based on that supervisor’s
“deliberate indifference” toward a subordinate’s pur-
poseful discrimination, see Nanda, 412 F.3d at 842, after
Iqbal a plaintiff must also show that the supervisor pos-
sessed the requisite discriminatory intent.
Nonetheless, even in light of Iqbal, plaintiffs have
offered evidence sufficient to defeat summary judgment
on Grindle’s qualified immunity defense. Plaintiffs need
not prove discriminatory intent in the same manner it
was established in Nabozny, where male and female
victims were treated differently. Plaintiffs have offered
evidence that would let a jury easily conclude that Sperlik,
acting under color of state law, denied the girls equal
protection by molesting and abusing them. Plaintiffs
have also offered evidence that would allow a jury to
conclude that Grindle knew about Sperlik’s abuse of the
10 No. 09-2920
girls and deliberately helped cover it up by misleading
the girls’ parents, the superintendent, and other admin-
istrators. From this evidence, a jury could reasonably
infer—though it would not be required to infer—that
Grindle also had a purpose of discriminating against
the girls based on their gender. Cf. Bohen v. City of East
Chicago, Ind., 799 F.2d 1180, 1190-91 (7th Cir. 1986) (Posner,
J., concurring) (suggesting that policy of deliberately
refusing to respond to complaints of sexual harassment
would support an inference of intentional discrimination).
If Grindle wishes to argue that she merely wanted to
avoid a scandal or that she would have taken similar
steps to conceal abuse if boys had been the victims, she
can present those arguments to the jury, but such sug-
gestions do not mean that she is entitled to judgment as
a matter of law. She did report some of the complaints
about Sperlik, but attempted to downplay those parts
of the complaints that showed they were about sexual
abuse rather than “pedagogical issues” or “teaching
methods.” From this evidence, a jury could conclude
that by attempting to convert claims about sexual abuse
by Sperlik into complaints about teaching methods,
Grindle treated the girls’ complaints differently because
of their sex. Cf. Bohen, 799 F.2d at 1191 (contrasting hypo-
thetical policy of ignoring all employee misconduct
with policy of ignoring only sexual harassment). Finally,
we note that the Equal Protection Clause does not
require that the state actor be motivated solely by the
plaintiff’s membership in a protected class. See Personnel
Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (discrimination
can be found only when decision maker chooses course
No. 09-2920 11
of action “at least in part ‘because of’ ” individual’s mem-
bership in a protected class). Even if Grindle was moti-
vated in part by a desire to avoid disciplining teachers
in general, she could still be held liable if she treated
the plaintiffs’ claims differently because they were
made by girls targeted for sexual abuse.
Next, we turn to plaintiffs’ other claim: that Grindle
violated 42 U.S.C. § 1983 by depriving them of their
substantive due process right to bodily integrity. There
are two types of substantive due process violations. The
first occurs when the state actor’s conduct is such that
it “shocks the conscience.” See Rochin v. California, 342
U.S. 165, 172-73 (1952). The second occurs when the state
actor violates an identified liberty or property interest
protected by the Due Process Clause. See Meyer v.
Nebraska, 262 U.S. 390, 399 (1923). The Supreme Court
has recognized that students have a protected liberty
interest in bodily integrity. See Ingraham v. Wright, 430
U.S. 651, 672 (1977) (discussing corporal punishment).
Grindle does not dispute that Sperlik’s conduct violated
his victims’ constitutional right to bodily integrity, but
argues that she had no affirmative duty to protect
students at her school from Sperlik’s abuse.
Generally, state actors do not have a due process obliga-
tion to protect citizens from private violence. See
DeShaney v. Winnebago Cty. Dept. of Social Servs., 489
U.S. 189, 195-97 (1989). An exception to that general
rule exists when the state has a “special relationship” with
the citizen, such as when it takes the person into
custody or otherwise imposes limitations on the person’s
12 No. 09-2920
“freedom to act on his own behalf.” Id. at 198-201. In J.O. v.
Alton Community Unit Sch. Dist. 11, 909 F.2d 267 (7th Cir.
1990), we rejected the notion that students are persons
with whom the state has a special relationship and owes
an affirmative duty of protection. Id. at 272. In so holding,
J.O. distinguished an earlier holding of the Third Circuit,
Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir.
1989). In Stoneking, the Third Circuit held that school
officials could be held liable for adopting policies that
were deliberately indifferent to the constitutional right
of students to bodily integrity. Id. at 725. In J.O., we held
that Stoneking did not apply because the plaintiffs had not
“alleged that the school defendants promoted school
policies that ‘encourag[ed] a climate to flourish where
innocent [children] were victimized.’ ” 909 F.2d at 271-72
(quoting Stoneking). Grindle argues that because none
of our decisions have explicitly adopted Stoneking, it
cannot be considered clearly established for the purpose
of qualified immunity.
Grindle’s argument misses the mark. For a constitu-
tional right to be clearly established, the state official need
only have “reasonable notice . . . that certain conduct
violates constitutional rights.” Narducci v. Moore, 572 F.3d
313, 318 (7th Cir. 2009). The plaintiff need not point to a
“fundamentally similar” past case. Id. While no holding
from this circuit has relied on a Stoneking theory of
liability, two of our decisions have indicated that such a
theory is viable. First, J.O. itself suggests that a Stoneking
theory of liability is viable. 909 F.2d at 273 (“[W]e do not
believe plaintiffs could never allege sufficient facts to
support a section 1983 claim. See Stoneking v. Bradford
No. 09-2920 13
Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989).”). Second, in
Nabozny, we again distinguished Stoneking but sug-
gested it was viable, noting that “we agree . . . in
principle that the defendants could be liable under a
due process theory if Nabozny could show that the defen-
dants created a risk of harm, or exacerbated an existing
one.” 92 F.3d at 460. Finally, several district courts within
this circuit have applied Stoneking. See, e.g., Doe v. Bd. of
Educ. of Consol. Sch. Dist. 230, Cook Cty., Ill., 18 F. Supp. 2d
954, 959 (N.D. Ill. 1998); Doe v. Bd. of Educ. of Hononegah
Comm. High Sch. Dist. #207, 833 F. Supp. 1366, 1377-78 (N.D.
Ill. 1993); Peck v. West Aurora Sch. Dist. 129, 2006 WL
2579678, at *4 (N.D. Ill. 2006); and Doe by and through Doe
v. Evanston Twp. Sch. Dist. 202, No. 93 C 1011, 1994 WL
55652, *1-2 (N.D. Ill. 1994). While district court decisions
alone do not clearly establish a right for the purpose
of qualified immunity, the number and unanimity of
these decisions, combined with our circuit-level prece-
dent, show that a reasonable school principal would have
concluded that she could be held liable for turning a
blind eye to and affirmatively covering up evidence
of child sexual abuse by one of her teachers.
Finally, we must address the impact of Iqbal on plain-
tiffs’ due process claim. It is important to note that, as
in Stoneking, plaintiffs are not relying on a theory that
“mere failure of supervisory officials to act” violates
the Due Process Clause. See Stoneking, 882 F.2d at 730.
Rather, plaintiffs allege that Grindle is liable for actively
concealing reports of abuse and creating an atmosphere
that allowed abuse to flourish. In other words, they
argue that Grindle’s own actions deprived them of their
14 No. 09-2920
constitutional right to bodily integrity. Because plaintiffs
seek to do no more than hold Grindle liable “for . . . her
own misconduct,” their substantive due process theory
is not foreclosed by Iqbal. 129 S. Ct. at 1949; cf. Jones, 856
F.2d at 992-93 (noting that supervisors can only be held
liable for their personal involvement in unconstitutional
conduct, which must rise above the level of inactionable
negligence or gross negligence). When a state actor’s
deliberate indifference deprives someone of his or her
protected liberty interest in bodily integrity, that actor
violates the Constitution, regardless of whether the actor
is a supervisor or subordinate, and the actor may be
held liable for the resulting harm.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
denial of Grindle’s motion for summary judgment based
on qualified immunity.
3-17-10