In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1936
JANE D OE-2, et al.,
Plaintiffs-Appellants,
v.
M C L EAN C OUNTY U NIT D ISTRICT N O . 5
B OARD OF D IRECTORS, 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.
A RGUED S EPTEMBER 21, 2009—D ECIDED JANUARY 22, 2010
Before C UDAHY, W OOD , and T INDER, Circuit Judges.
T INDER, 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 dis-
tricts. 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 victim-
ized 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 harass-
ment 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 defen-
dants 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 photo-
graphs, and commenting on students’ sexual attractive-
ness. 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 harass-
ment: Jim Braksick and Edward Heinemann, principals of
the elementary school where White worked; Dale
Heidbreder, assistant principal; Alan Chapman, superin-
tendent 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 recom-
mendation” 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, in-
cluding 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 well-
pleaded 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 sub-
stantial control element is essential for Title IX liability
because a school district cannot be liable for its indif-
ference to harassment that it lacks the authority to pre-
vent. 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 em-
ployment with the McLean County School District, and
this harassment occurred in an Urbana elementary
school where the defendants had no supervisory author-
ity. 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 teacher-
harasser 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 deci-
sion 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 harass-
ment 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 teacher-
harasser 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 state-
law 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 ap-
propriate 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 state-
law 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 Doe-
2’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 person-
nel” 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 viola-
tion also breaches a common law duty of care owed to
the plaintiff. The Illinois Appellate Court similarly con-
cluded 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 com-
mon 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 relation-
ship” 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 defen-
dants’ 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 allega-
tions 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 com-
plaint 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 Verifica-
tion of Teaching Experience form and a letter of recom-
mendation 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 sever-
ance 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 em-
ployment record would be material to a misrepresenta-
tion 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 harass-
ment. 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 require-
ments, 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 defen-
dants 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 A FFIRM the district court’s
dismissal of Doe-2’s complaint for failure to state a claim.
1-22-10