Jane Doe v. Board of Education of Glenbard Township High School District 87

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JANE DOE,

Plaintiff, No. 21 C 04909

v. Judge Thomas M. Durkin

BOARD OF EDUCATION OF GLENBARD

TOWNSHIP HIGH SCHOOL DISTRICT 87;

PETER MONAGHAN, in his individual and

official capacity; DAVID LARSON, in his

individual and official capacity;

MICHAEL SOUZA, in his individual and

official capacity; CHRISTOPHER

MITCHELL, in his individual and official

capacity; AMANDA MEYER, in her

individual and official capacity, LISSETE

OCHOA, in her individual and official

capacity; ELIZABETH MCGANN, in her

individual and official capacity; and

ANDREW JEFFREY, in his individual and

official capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jane Doe alleges that she experienced pervasive sex-based

harassment at her high school, resulting in a deprivation of access to educational

opportunities and the violation of her constitutional rights. She filed suit under Title

IX and 42 U.S.C. § 1983, naming as Defendants the governing Board of Education

and several administrators and staff members from her high school. Plaintiff alleges

Defendants failed to properly investigate and/or address the harassment she faced,

in violation of Title IX and with deliberate indifference to her Equal Protection and

Due Process rights. Defendants have moved to dismiss the complaint for failure to

state a claim. For the reasons set forth below, that motion is denied in part and

granted in part.

Background

At the time of the alleged events, Plaintiff was a minor female attending

Glenbard West High School. On September 15, 2018, she attended a party with

another individual, “J.A.,” with whom she was in a relationship. At the party, J.A.

urged Plaintiff to take a pill he claimed was Xanax. After taking the pill, Plaintiff

began to experience altered perception and periods of memory “blackout.” Later that

evening, Plaintiff and J.A. arrived at J.A.’s house. Plaintiff awoke several hours later

with limited memory of the prior night. She soon received a video via the SnapChat

messaging app that depicted J.A. sexually penetrating her. Plaintiff had no memory

of consenting to or participating in any sexual activity the night of September 15. J.A.

subsequently sent the video to several other students at Glenbard West.

A few days later, Plaintiff told defendant Amanda Meyer, a school psychologist,

about the incident and dissemination of the video during a counseling session. Meyer

told Plaintiff the event would “blow over” and did not immediately report or

investigate the assault.

About two weeks after the incident, after Plaintiff had spoken to other students

about the assault, J.A. sent Plaintiff a SnapChat message that said, “So you’re

putting a rape charge on me.” R. 1 ¶ 46. J.A. later sent a text message to Plaintiff

that said, “Yo listen never speak my name …I do not give to fucks about the deans I

will stomp these kids throats.” R. 1 ¶ 47.

Plaintiff told her mother (referred to herein as “Judy Doe”) about the incident

and the two of them reported it to the Glen Ellyn Police Department. The following

day, Judy notified defendant Michael Souza, the dean of students at Glenbard West,

about the incident and J.A.’s subsequent dissemination of the video. Souza in turn

notified the Board of Education, board superintendent David Larson, Glenbard West

principal Peter Monaghan, and assistant principal Christopher Mitchell.

According to the complaint, after Plaintiff and her mother disclosed the assault

and video to the police and school administrators, the harassment began to escalate.

J.A. began to physically position himself in areas Plaintiffs frequented for classes and

extracurriculars. Judy reported to Souza that J.A. was “attempting to physically

intimidate Plaintiff for reporting her assault and that Plaintiff felt unsafe at school.”

R. 1 ¶ 54. Souza related this conversation to the other Defendants.

Plaintiff further alleges that she was “frequently called by gendered and

sexually-charged language, including ‘twat’ and ‘whore’ by other Glenbard West

students, and was accused of having fabricated the assault.” R. 1 ¶ 56. She received

photos and videos from other students that depicted J.A. and other students mocking

Plaintiff for reporting the assault and describing her with sexualized terms. Plaintiff

received another video depicting J.A. simulating sex with another student in an

imitation of the assault.

Plaintiff also alleges that she received threats to her physical safety. J.A.

threatened to beat up Plaintiff and a friend to whom she had reported the assault,

and another student told Plaintiff they would throw a brick at her vehicle if she came

to school.

Plaintiff claims that all Defendants were well-apprised of her situation but

nonetheless failed to investigate either the assault or the ongoing sexual harassment

as required under Title IX. Specifically, Plaintiff alleges that Defendants did not

report the incident to the district Title IX coordinator and discouraged Plaintiff from

filing a complaint for sexual harassment or sexual violence. Defendants also took no

disciplinary action against J.A. and made no changes to the educational environment

to prevent the harassment or threats.

Plaintiff missed a substantial number of class periods during the academic

year, which she attributes to the sexual harassment and fear for her personal safety.

She also alleges experiencing severe anxiety because of the harassment, requiring

mental health counseling and medication. Eventually, Plaintiff transferred to

another school.

Plaintiff’s complaint asserts five claims. Counts I-VI allege violations of

Plaintiff’s rights under Title IX, substantive due process, procedural due process, and

the Equal Protection Clause of the Fourteenth Amendment, respectively. R. 1 ¶¶ 86-

139. Count V asserts a Monell claim against the Board of Education and school

officials Monaghan, Larson, Souza, and Mitchell. R. 1 ¶¶ 140-47.

Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Analysis

I. Count I (Title IX)

“Title IX provides that: ‘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.’” Jauquet v. Green Bay Area Catholic Educ., Inc., 996 F.3d 802, 807 (7th

Cir. 2021) (quoting 20 U.S.C. § 1681(a)). A gender discrimination claim under Title

IX may be either “direct” or “indirect.” Id. A direct claim alleges that the school itself

discriminated against the plaintiff on the basis of sex, while an indirect claim may be

based on “student-on-student harassment that is so severe that the harassment

functionally excludes a student from school activities on the basis of sex.” Id.; see also

Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999)

(recognizing that school administrators “may be liable for their deliberate

indifference to known acts of peer sexual harassment”). Plaintiff’s claims here are

indirect, because they concern the school officials’ alleged failure to prevent known

harassment being carried out by other students.

“[T]he Supreme Court has interpreted both Title VI and Title IX to impose a

demanding standard for holding schools and school officials legally responsible for

one student’s mistreatment of another.” Doe v. Galster, 768 F.3d 611, 613 (7th Cir.

2014). “First, the school or school officials must have had actual knowledge of sex-

based harassment.” Jauquet, 996 F.3d at 808. “Second, the harassment must have

been ‘so severe, pervasive, and objectively offensive that it can be said to deprive the

victims of access to the educational opportunities or benefits provided by the school.’”

Id. (quoting Galster, 768 F.3d at 614). “Third, the school must have been deliberately

indifferent to the harassment.” Id. (citing Davis, 526 U.S. at 648). A school will be

found “deliberately indifferent” only if its “response to the harassment or lack thereof

is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648.

Defendants argue that the allegations in Plaintiff’s complaint do not plausibly

allege sex-based harassment and thus are not actionable under Title IX. See Doe v.

Univ. of Chicago, 2017 WL 4163960, at *8 (N.D. Ill. Sept. 20, 2017). According to

Defendants, Plaintiff has alleged only that she was harassed because she reported

the sexual assault, not because of her sex. The Court disagrees.

For starters, even if Plaintiff’s claim was based solely on harassment she

received for reporting her assault, this may be sufficient to state a claim under Title

IX. “Retaliation against a person because that person has complained of sex

discrimination is another form of intentional sex discrimination encompassed by Title

IX’s private cause of action.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173

(2005). A school can be liable under Title IX for failing to take reasonable action to

stop peer harassment after a student reports a sexual assault. See, e.g., Reed v. S. Ill.

Univ., 2020 WL 3077186, at *4 (S.D. Ill. June 10, 2020); Doe v. Blackburn Coll., 2012

WL 640046, at *7 (C.D. Ill. Feb. 27, 2012).

But beyond that, Defendants’ characterization takes too narrow a view of

Plaintiff’s allegations and ignores relevant context. Plaintiff alleges that after the

assault, she was harassed with gendered and sexualized insults. She was also sent

videos depicting her alleged assailant reenacting the assault on another student, and

others in which students joined him in denigrating her. The fact that J.A. (a male)

allegedly suffered no backlash from his peers while Plaintiff (a female) was

threatened and insulted also permits an inference of gendered motivation, as it leans

into gender stereotypes in which women are criticized for engaging in sexual behavior

of any kind and ostracized for reporting abuse. Courts considering similar

circumstances have likewise found actionable Title IX claims. See, e.g., Doe v. Sch.

Dist. No. 1, Denver, Colo., 970 F.3d 1300, 1310 (10th Cir. 2020) (holding that

allegations of harassment including sexually charged insults, “rape jokes” about

plaintiff’s assailant, and comments about sexual consent were sufficient to allege sex-

based discrimination); Doe v. E. Haven Bd. of Educ., 200 F. App’x 46, 48 (2d. Cir.

2006) (“A reasonable fact-finder could conclude that, when a fourteen-year-old girl

reports a rape and then is persistently subjected by other students to verbal abuse

that reflects sex-based stereotypes and questions the veracity of her account, the

harassment would not have occurred but for the girl's sex.”).

Defendants’ cited case, Doe v. University of Chicago, 2017 WL 4163960 (N.D.

Ill. Sept. 20, 2017), is readily distinguishable from this one. There the plaintiff

brought a Title IX claim after two female students accused him of sexual assault and

filed a complaint against him for sexual misconduct. Id. at *7. The court found the

plaintiff had failed to allege harassment based on sex, noting a general agreement

among courts that “a false accusation of sexual assault is not, without more,

harassment based on sex, notwithstanding the sexual content of the accusation.” Id.

As explained above, the allegations in this case are not so limited—they allege

conduct other courts have found to constitute sex-based discrimination. The Court

therefore finds that Plaintiff has adequately alleged sex-based discrimination that is

actionable under Title IX.

II. Count II (Substantive Due Process)

Defendants do not dispute that students at public schools have protected

liberty and property interests in receiving an education free from invasion of their

physical safety. R. 14, at 8; see also Doe v. Sch. Dist. U-46 (“U-46”), 557 F. Supp. 3d

860, 871-72 (N.D. Ill. 2021). However, Defendants argue that they had no duty under

the Due Process Clause to protect Plaintiff from harassment by other students.

The purpose of the Due Process Clause “was to protect the people from the

State, not to ensure that the State protected them from each other.” U-46, 557 F.

Supp. 3d at 872 (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S.

189, 195-96 (1989)). “Accordingly, the Clause generally does not impose upon the

state a duty to protect individuals from harm by private actors.” D.S. v. East Porter

Cty. Sch. Corp., 799 F.3d 793, 798 (2015).

Here, no school official is alleged to have participated in Plaintiff’s

harassment—Plaintiff only claims that they failed to respond appropriately to

harassment carried out by other students. This would seem to foreclose liability

under the Due Process Clause. However, Plaintiffs cite to several cases discussing the

“state-created danger exception” to the general rule. That exception applies “when a

state actor’s conduct ‘creates, or substantially contributes to the creation of, a danger

or renders citizens more vulnerable to a danger than they otherwise would have

been.’” Id. (quoting Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993)).

Within the education context, the state-created danger exception has

ordinarily been applied when a state actor is directly responsible for the alleged

harassment. See, e.g., Sandra T.E. v. Sperlik, 639 F. Supp. 2d 912, 921-23 (N.D. Ill.

2009) (denying summary judgment on substantive due process claim where evidence

showed school officials tacitly approved sexual abuse being perpetuated by a teacher

against students). In contrast, court have found the exception inapplicable when the

harassment is carried out by other students. For example, in U-46, the plaintiff

asserted a substantive due process claim against school officials for failing to stop

bullying and sexual harassment by other students on the school bus. 557 F. Supp. 3d

at 872-73. The court found that Plaintiff had not alleged an “affirmative action” by

school officials that “create[d] or increase[d]” the danger, noting that “[g]enerally, for

the exception to apply, the victim must be ‘safe before the state intervenes and unsafe

afterward.’” Id. at 873 (quoting Sandage v. Bd. of Comm’rs of Vanderburgh Cty., 548

F.3d 595, 598 (7th Cir. 2008)); see also D.S., 799 F.3d at 798-99 (granting summary

judgment on substantive due process claim where bullying was largely carried out by

other students and evidence of teachers’ participation was very limited).

This latter category of cases is more akin to the situation here. Plaintiff does

not allege that Defendants took any affirmative action that created or increased the

danger of sexual harassment—indeed, the crux of her complaint is that Defendants

took no action at all. “[T]he exception’s requirement that the affirmative action ‘create

or increase’ danger ‘must not be interpreted so broadly as to erase the essential

distinction between endangering and failing to protect.’” U-46, 557 F. Supp. 3d at 873

(quoting Doe v. Vill. Of Arlington Heights, 782 F.3d 911, 917 (7th Cir. 2015)). The

Court concludes that Plaintiff has not sufficiently alleged that Defendants owed her

a duty to prevent peer-on-peer harassment under the Due Process Clause. Count II

in her complaint must therefore be dismissed without prejudice.

III. Count III (Procedural Due Process)

Plaintiff’s procedural due process claim likewise fails because she has not

alleged that Defendants themselves deprived her of a protected interest. Dunn v.

Fairfield Cmty. High Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir. 1998) (“The

touchstone of due process … is ‘protection of the individual against arbitrary action

of government.’”). Indeed, mapping the procedural due process framework onto her

allegations is difficult because that test concerns whether the state, in depriving a

person of a protected right, has provided constitutionally adequate process. See

Zinermon v. Burch, 494 U.S. 113, 125 (1990) (“In procedural due process claims, the

deprivation by state action of a constitutionally protected interest in “life, liberty, or

property” is not in itself unconstitutional; what is unconstitutional is the deprivation

of such an interest without due process of law.”). Plaintiff’s complaint lacks

allegations that Defendants deprived her of a constitutional right—it follows that she

has not stated a claim that they did so without sufficient process.1 Accordingly,

Plaintiff’s procedural due process claim in Count III is dismissed without prejudice.

IV. Count IV (Equal Protection)

Defendants assert Plaintiff has failed to allege the essential elements of an

equal protection violation and instead merely restates the allegations from her other

claims. Plaintiff’s only response is that her equal protection claim is “due to be

1 The Court also notes that Plaintiff’s due process claim appears to focus largely on

Defendants’ alleged failure to comply with internal policies governing discipline and

harassment, matters which are typically “irrelevant to the due process inquiry.”

Simonsen v. Bd. of Educ., 2002 WL 230777, at *3 n.14 (N.D. Ill. Feb. 14, 2002).

amended, rather than dismissed outright.” The Court takes this as a concession that

that her equal protection claim is deficient as it stands and therefore dismisses Count

IV without prejudice.

V. Count V (Monell Liability)

Monell liability cannot be imposed against a municipal corporation absent an

underlying constitutional violation. See City of Los Angeles v. Heller, 475 U.S. 796,

799 (1986). Because the Court has dismissed each of Plaintiff’s constitutional claims,

no basis for Monell liability remains. Count V is therefore dismissed without

prejudice.

VI. Claims Against Individual Defendants

Defendants move to dismiss all claims against individual defendants

Monaghan, Larson, Mitchell, Ochoa, McGann, and Jeffrey for failure to plead

personal involvement and for improper “group pleading.” The Court need not delve

into this issue, however, because the only claim remaining in Plaintiff’s complaint

arises under Title IX, and individuals are not proper defendants in such a claim. See

Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1019-21 (7th Cir. 1997). While

Plaintiff’s complaint also names the individual defendants in their official capacities,

this is redundant with her claim directly against the Board of Education. See id. at

1021 n.3. Accordingly, the Court dismisses all claims against all the individual

defendants without prejudice.

Conclusion

For the foregoing reasons, Defendants’ motion to dismiss [R. 14] is denied in

part and granted in part. The Court denies the motion as to Plaintiff’s Title IX claim

against the Board of Education in Count I. The Court grants Defendants’ motion to

dismiss as to all other claims in Counts II through V and further dismisses all claims

against the individual defendants. Dismissal of all claims is without prejudice to

Plaintiff seeking leave to amend. No later than twenty-one (21) days from the entry

of this order, Plaintiff may file a proposed amended complaint. Any proposed

amended complaint should be accompanied by a redline copy showing changes from

the original complaint, as well as a brief of no more than five (5) pages explaining

how the proposed amended complaint cures the deficiencies identified in this opinion.

Within fourteen (14) days of the entry of this order, the parties shall submit a

joint status report proposing a discovery schedule.

ENTERED:

Arnite MY Suchor.

Honorable Thomas M. Durkin

United States District Judge

Dated: July 1, 2022

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