Sandra T.E. v. Grindle

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.

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