CHICAGO (CN) —The full Seventh Circuit on Tuesday upheld a finding that a Wisconsin school district cannot be held liable for failing to take action against a security guard who frequently “full-frontal bear hugged” and massaged students and was eventually accused of sexually abusing a middle-schooler.
In an opinion written by U.S. Circuit Judge Michael Scudder, a Donald Trump appointee, the en banc appeals court found that school officials at the Annie Greencrow Whitehorse Middle School in Madison’s Metropolitan School District could not be held liable for failing to intervene in security guard Willie Collins’ conduct toward an eighth-grade girl, including hugs that the girl’s attorney Jeffrey Herman described as “chest-to-chest, private area-to-private area.”
The touching, the girl alleges, escalated to grooming and repeated sexual assaults by the security guard, which the girl’s mother discovered after she left the school in 2014. She sued the school district, alleging that officials had discriminated against her daughter by failing to protect her from sexual abuse.
U.S. District Judge Barbara Crabb in Madison granted summary judgment to the school district in late 2016, finding that school officials were not aware of sexual abuse and that the girl, identified in court documents as C.S., had not shown that Collins’ conduct was interfering with her education. A three-judge panel of the Seventh Circuit affirmed the ruling in July 2018.
Scudder wrote that the Chicago-based appeals court decided to rehear the case en banc to “reconcile some inconsistencies” in its past rulings on cases involving Title IX, a federal law prohibiting sex discrimination in the education system. The court aims to “provide more concrete guidance to those tasked with complying with Title IX in the challenging setting of today’s schools," Scudder wrote.
At oral arguments held in February 2019 before a 12-judge panel that included now-U.S. Supreme Court justice Amy Coney Barrett, attorneys for the school argued that while school officials did not consider Collins’ hugs and massages to be sexual in nature, Whitehorse principal Deborah Ptak did hold a meeting to caution him to set “strong boundaries” and said hugs and similar conduct were “not appropriate.” Attorney Peggy Van Horn argued that Collins also hugged other students, and that “90% of the testimony says that hugs were initiated by students.” What Herman called grooming behavior after the fact, she said, could also be seen as mentoring behavior without the benefit of hindsight.
To Herman, the meeting showed that Ptak had actual knowledge of inappropriate behavior. “If this were the workplace, it would be sexual harassment,” he said at the hearing, adding that “little girls cannot consent to being touched by an older man.”
In Tuesday’s opinion, the court did not refute that contention but unanimously found that the hugs – side, “full-frontal” or otherwise – did not in themselves make the school liable for sex discrimination.
“The line between actionable actual knowledge of past or ongoing misconduct and non-actionable appreciation of a risk of future misconduct can get very blurry in cases like this,” Scudder wrote, ultimately concluding that “only once 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 to prevent the further foreseeable risks from materializing.”
He also noted that Ptak, in warning Collins to limit physical contact with the girl and avoid interacting with her in private, had not shown deliberate indifference to his conduct. Ptak’s response, Scudder wrote, “was properly calibrated to the risks inherent in Collins’ conduct.”
“There is no doubt that Collins’ conduct during C.S.’s seventh-grade year gave rise to some probability that things could get a lot worse,” Scudder wrote. “But the required response… already accounted for that risk escalation. Upon receiving actual notice of discrimination, a school district will avoid a finding of deliberate indifference so long as it takes actions reasonably calculated, based on everything it knew at the time, '’to bring [it] into compliance’ with Title IX’s prohibition on sex discrimination.”
No criminal charges were brought against Collins following an investigation by the Dane County Sheriff’s Department, and at the time of oral arguments he was still employed by the school district.
Neither the district nor Herman responded to a request for comment Tuesday afternoon.
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