The 7th Circuit Court of Appeals confirmed that school districts may only be liable for employee sexual misconduct when a school official has actual notice of the conduct. In C.S. v. Madison Metropolitan School District, the Court held that the Title IX obligations of a school district are limited in this regard. While various state laws impose additional requirements beyond Title IX for Illinois schools to respond to reported sexual misconduct by a school employee, this case provides important guideposts for when school districts may be subject to liability for monetary damages under Title IX. 

In this case, a middle school student alleged a school security assistant sexually abused her throughout her eighth-grade year. There was no evidence that anyone witnessed the misconduct, and the student did not report the abuse until August 2014, when she was in high school. The Court noted that “if eighth grade were the whole story, it is clear that [the security assistant’s] alleged abuse, even if proven, could not give rise to liability for the school district” because the school had no knowledge, actual or otherwise, of the abuse.  

However, the student contended that throughout her seventh-grade year, the school did receive actual notice of warning signs that the security assistant posed a potential risk to students. Another school employee observed the security assistant regularly giving both male and female students hugs and back and shoulder rubs at school, as well as “troubling” interactions in which the student who brought the suit would ask the security assistant for hugs and spend time in his office after school. On one occasion, the school employee observed the plaintiff attempt to kiss the security assistant on the cheek, which he rebuffed. 

The school employee reported these incidents to the school principal. Other employees, including a school counselor and teacher, shared similar concerns with the principal about the security assistant’s physical contact with the plaintiff and other students. The principal took action shortly after receiving these reports by ordering the security assistant to limit the physical contact with the plaintiff, avoid interacting with her in private settings, and set stronger boundaries in their relationship. After that conversation, the principal neither observed nor received reports about further concerns. 

However, the plaintiff stated that the security assistant sexually abused her throughout the following year behind closed doors at school. In the lawsuit, the plaintiff sought to hold the school district liable for the security assistant’s conduct during eighth grade based on the principal’s knowledge of their relationship in seventh grade.  

In its analysis, the Court zeroed in on three key elements of the Supreme Court’s test in Gebser v. Lago Vista Independent School District to assess a school’s liability for money damages under Title IX: 1) whether there was sex-based misconduct, 2) whether the school had actual knowledge of the misconduct, and 3) whether the school’s response was deliberately indifferent. Significantly, the Court emphasized that only once a district has knowledge that “the misconduct line has actually been crossed does Title IX impose an affirmative obligation on school districts to act—both to remedy the existing misconduct” and prevent foreseeable harm. It clarified, in light of past Court decisions, that a school district’s duty to act is not triggered until it has actual knowledge of facts that indicate that sex-based misconduct rising to the level of sex discrimination has occurred or is occurring. In other words, a school district may not be held liable for money damages under Title IX “solely on the knowledge of the risk of future misconduct,” where no actual sex discrimination has occurred.  

The Court held that a school is not deliberately indifferent so long as it takes actions that are reasonably calculated, based on everything the school knows at the time, to comply with Title IX—i.e., to end the harassment or limit further harassment. In this case, the Court viewed the principal’s prompt action following the reports of the security assistant’s conduct with the plaintiff and other students as reasonable based on her knowledge of the facts at the time. 

The Court gave this warning to schools: the best course is always “to err on the side of taking reactive and preventative measures to ensure compliance with Title IX” when observing or receiving notice of potential misconduct. 

Schools in Illinois should also remember that Illinois law contains additional requirements specific to reporting suspected sexual abuse by school employees, including allegations of grooming, which we covered in previous posts here and here. Governor Pritzker also recently signed into law Public Act 102-702, which requires schools, by July 2023, to implement procedures for notifying parents of alleged sexual abuse by school employees and to conduct particular employee history inquiries related to sexual misconduct for employment candidates having direct contact with children. 

If you have questions about Title IX or state law requirements regarding reporting obligations and handling complaints of employee-student misconduct, please contact any of the authors of this post. 

*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.