Minors Jane Doe I and II, by and through their Mothers and next friends Mary Doe I and II, filed this lawsuit against the Board of Education of the City of Chicago and Casino Cruz asserting various federal and state law claims stemming from Cruz's alleged sexual harassment of the minor Plaintiffs and the Board's alleged reckless indifference toward and failure to protect the minor Plaintiffs from such harassment. (Dkt. 1). In the Amended Complaint, Plaintiffs assert a Title IX discrimination claim (Count XVI) against the Board on behalf of both Jane Doe I and II and assert the following state-law claims against the Board and/or Cruz: sexual battery (Counts I and IX) and intentional infliction of emotional distress (Counts VII and XV) against Cruz; failure to supervise (Counts III and XI), negligence (Counts IV and XII), willful and wanton conduct (Counts V and XIII), negligent retention (Counts VI and XIV), and negligent failure to control the conduct of Cruz (Count VIII) against the Board; and negligent infliction of emotional distress (Counts II and X) against both the Board and Cruz. (Id. ). Jane Doe I also asserts a claim for false imprisonment (Count XVII) against Cruz. (Id. ). The Board moved to dismiss all claims asserted against it pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 42). For the following reasons, the Board's Motion to Dismiss (Dkt. 42) is granted in part and denied in part.
BACKGROUND
The following facts are taken from Plaintiffs' Amended Complaint and are accepted as true for purposes of the Board's Motions to Dismiss. Clark v. Law Office of Terrence Kennedy, Jr. ,
Casino Cruz was employed by the Board for nearly 20 years, first at Roberto Clemente High School (RCHS) from 1999 until February 2017 and then at Farragut High School from August 2017 until June 2018. (Dkt. 40 at ¶¶ 19, 118, 126). During his tenure at RCHS, Clemente served as security guard, assistant dean, swim instructor, swim team coach and volleyball coach. (Id. at ¶¶ 20-21). In these roles, Cruz regularly engaged in "grooming" or sexually inappropriate behavior with female students.
I. Prior Incidents at RCHS (1999-2016)
In 1999-2000, Cruz was a security guard and the female swim coach at RCHS. (Id. at ¶ 27). During that time, a female student reported to Dolly Irizarry, a teacher at RCHS, that Cruz told the student in front of other female students that she had a "hot pussy." (Id. at ¶ 27-29). Ms. Irizarry reported the conduct to RCHS administration who with the help of the Board commenced an investigation, including interviewing Irizarry and other female students, but never disciplined Cruz or contacted the Illinois Department of Children and Family Services (DCFS) about the comments. (Id. at ¶¶ 30-32). Cruz continued to work as a security guard and the female swim coach at RCHS. (Id. at ¶ 33).
In December 2002, M.T., a female student in Cruz's swim class, told RCHS administration that Cruz made her feel weird and did weird stuff to her and that Cruz regularly entered the women's locker room while she and other students were changing. (Id. at ¶¶ 36, 40). Other female students confirmed that Cruz would regularly walk in on girls changing in the locker room. (Id. at ¶ 43). One day while at the swimming pool, Cruz touched M.T.'s breast. (Id. at ¶ 37). M.T. told her mother that Cruz had touched her breast and her mother went to RCHS and reported the incident to RCHS Assistant Principal Conrad. (Id. at ¶ 38). Another time, Cruz threw M.T. into the pool. (Id. at ¶ 41). M.T. and her mother requested that the RCHS administration take action against Cruz. (Id. at ¶ 42). M.T. ultimately failed her swim class because she refused to be near Cruz. (Id. at ¶ 44). Eventually, M.T.'s mother contacted the Chicago Police Department who arrested Cruz on April 4, 2003 for physical battery against M.T. (Id. at ¶ 45). The Board and RCHS administration knew about the arrest yet continued to employ Cruz at RCHS. (Id. at ¶¶ 47-49).
In 2003-2004, R.L. was a student in Cruz's swim class at RCHS. (Id. at ¶ 50-52). After class, Cruz would regularly walk through the women's locker room while the female students were changing. (Id. at ¶ 54). R.L. told Cruz to stop doing so. (Id. at ¶ 54). R.L. and several other female students also told RCHS staff and administration that Cruz walked through the women's locker room while they were changing but RCHS administration ignored the conduct and took no action against Cruz. (Id. at ¶¶ 54-57).
In 2007-2008, S.H. was a student in a P.E. class moderated by Cruz. (Id. at ¶¶ 58-60). Cruz regularly walked into the women's locker room after class while female students were changing. (Id. at ¶ 61). S.H. and other female students in the class screamed at Cruz to stop doing so and notified RCHS staff and administration about his conduct but the RCHS administration never took any action against Cruz. (Id. at ¶ 65).
In 2012, a female student at RCHS filed a complaint received by the Board Investigations Unit and Law Department alleging Cruz sexually harassed her. (Id. at ¶ 66). The "Investigation Memorandum" provided to the Law Department reported that, according to the student, Cruz "flirt[ed]" with her, "hit[ ]" on her, "mess[ed]" with her, hit her in a playful manner, slapped
In January 21, 2014, several adult RCHS staff members observed Cruz slap a female student across the face multiple times while having a heated argument with her in a classroom. (Id. at ¶¶ 69-70). One witness reported the incident to DCFS. (Id. at ¶ 73). When RCHS Principal Marcey Sorenson learned of the incident, she called Cruz to her office and he admitted to slapping the student. (Id. at ¶ 74). The Board continued to employ Cruz and never disciplined him for the incident. (Id. at ¶¶ 75-76).
In Fall 2016, X.S., a female RCHS student, reported to her mother that Cruz played with her hair and made her feel uncomfortable. (Id. at ¶¶ 78-79). Her mother reported Cruz's conduct to a member of the Board Investigation Unit but the investigator never opened an investigation into the allegation or reported the conduct to DCFS. (Id. at ¶ 79).
In September 2016, Cruz was coaching the women's volleyball team and walked up behind a player, T.R., during warm-ups for a game and inappropriately touched her butt. (Id. at ¶ 82-83). The incident was reported to Assistant Principal Crosen who in turn never disciplined Cruz for his conduct or reported the incident to DCFS. (Id. at ¶¶ 84-85).
II. Jane Doe I and II Incidents (2016-2017)
A. Jane Doe I
When Jane Doe I started at RCHS in Fall of 2016, Cruz was the Dean of Students and a security guard stationed at the screening area on the first-floor entrance of the school. (Id. at ¶¶ 87-88). In September 2016, Jane Doe I forgot her ID and was directed to Cruz to obtain a temporary ID in order to be admitted into the school. (Id. at ¶¶ 89-90). Instead of handing the ID to Jane Doe I, Cruz "placed it on her forehead and proceeded to touch and caress [her] face with the back of his hand," making Jane Doe I feel "very nervous and scared." (Id. at ¶¶ 91-92).
On October 21, 2016, while dropping Jane Doe I off at school, her father approached Cruz and told him he would "kick Cruz's ass if [he] ever touched his daughter again." (Id. at ¶ 93). RCHS Dean of Students Albert Lawson witnessed the confrontation but never reported any incident to DCFS. (Id. at ¶ 94).
In or about late October 2016, Cruz placed Jane Doe I in a fifth-floor classroom alone with him making it clear she was not free to leave and directed her to type something on one of the computers in the room about an interaction with her boyfriend. (Id. at ¶¶ 94-95). Cruz leaned over Jane Doe I while she typed, "placed his head very close to [her] head and placed his arm on her arm," and then "leaned and pushed his body into [her] body and called her 'baby girl.' " (Id. at ¶¶ 96-97). Jane Doe I pushed her self away but "felt disgusted and scared because she could not get out of the fifth floor room." (Id. at ¶ 97).
In early November 2016, RCHS security guard Darlene Sierra Clark broke up an argument between Jane Doe I and another student and took Jane Doe I to Cruz. (Id. at ¶ 98). Cruz initially spoke angrily to Jane Doe I but, after Clark left the room, "soften[ed] his tone, rubb[ed] Jane Doe I's arm and [told] her it would be ok." (Id. at ¶ 99). Also in early November, Jane Doe I was talking loudly on an escalator in RCHS when Cruz "came up from behind her, touched [her] on her waist and whispered
Shortly thereafter, Jane Doe I reported to Clark and RCHS Dean of Students Christopher Ellis that she did not like the way Cruz touched her and that Cruz "made her feel weird and uncomfortable." (Id. at ¶ 101). Clark and Ellis reported this to Dean Lawson and Principal Sorenson who determined the encounter with Cruz was "non-sexual." (Id. at ¶ 102). Neither Lawson, Sorenson, Clark nor Ellis reported the incident to DCFS. (Id. at ¶¶ 102-103). However, in January 2017, CPD reported the incident to DCFS, who investigated and ultimately "Indicated" the complaint after finding credible evidence of child abuse and/or grooming by Cruz. (Id. at 103).
B. Jane Doe II
Jane Doe II also started as a freshman at RCHS in Fall of 2016. (Id. at ¶ 104). In or about mid-December 2016, Jane Doe II was riding up an escalator at RCHS when Cruz "quietly approached [her] from behind, put his arm around [her], touched her inner thigh and said '... whats up F ...?' " and then continued up the escalator. (Id. at ¶¶ 106-108). The encounter caused Jane Doe II to "flinch away from Cruz and feel angry and uncomfortable" and she immediately told her teacher and her mother what happened. (Id. at ¶¶ 109-10). Her mother contacted RCHS and the RCHS administration contacted DCFS and CPD about the allegations. (Id. at ¶¶ 110-11).
Jane Doe II and her mother were told a "Safety Plan" would be implemented to protect Jane Doe II but it never was. (Id. at ¶ 112). Cruz remained in the school and followed Jane Doe II to her classes "making it impossible for [her] to continue to attend RCHS." (Id. at ¶ 114). As a result, in January 2017 she transferred to another school outside of the Chicago Public School district to get away from Cruz. (Id. at ¶ 115).
C. Cruz's Arrest and Suspension
On January 17, 2017, CPD arrested Cruz and charged him with battery of Jane Doe I and Jane Doe II. (Id. at ¶ 117). Despite instructions that Cruz was not to have any contact with Jane Doe I or II, RCHS allowed Cruz to access RCHS where Jane Doe I was still a student. (Id. at ¶ 117). Cruz's continued intimidation of Jane Doe I caused her to experience "mental anguish, humiliation, and emotional and physical distress." (Id. at ¶ 117). In or about February 2017, the Board suspended Cruz with pay due to the arrest. (Id. at ¶ 118).
III. Incidents at Farragut (2017-2018)
In August 2017, the Board transferred Cruz to work as a security guard at Farragut High School. (Id. at ¶ 119). Cruz was still awaiting a criminal trial for the battery of Jane Doe I and II at the time. (Id. at ¶ 120).
In January 2018, a Farragut teacher reported to Farragut administration via email that several female students had complained of inappropriate behavior by Cruz that made them feel uncomfortable, including playing with female students' pony tails, telling a student to come closer so he could smell her perfume, walking behind female students on the stairs and "star[ing] at their butt," and pushing a student's head as she entered a classroom. (Id. at ¶ 122-124). The teacher also reported that she observed Cruz and a female student screaming and hitting each other in the hallway. (Id. at ¶ 123). The Farragut administration forwarded the email to Farragut Principal Hamacker who in turn forwarded it to the Board Investigation Unit and Law Department. (Id. at ¶ 125).
LEGAL STANDARD
"To survive a motion to dismiss under 12(b)(6), a complaint must 'state a claim to relief that is plausible on its face.' " Adams v. City of Indianapolis ,
DISCUSSION
Plaintiffs assert various federal and state law claims against the Board, all arising from Cruz's alleged sexual harassment of female students at CPS high schools, including Jane Doe I and II. (See Dkt. 40). Specifically, Plaintiffs claim the Board acted with deliberate indifference to Cruz's sexual harassment of minor female students in violation of Title IX of the Education Amendments of 1972,
I. Title IX Claim
Title IX provides in relevant part that "[n]o 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."
The Board argues Plaintiffs' Title IX claim should be dismissed for failure to sufficiently plead that Cruz's alleged sexual harassment of Jane Doe I and II was so severe or pervasive that it altered the conditions of their education or that the Board was deliberately indifferent to the sexual harassment.
A. Sufficiently Severe or Pervasive to Alter the Conditions of Education
To prevail on their Title IX claim, Plaintiffs must allege harassment "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." Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ. ,
The Board argues Plaintiffs' allegations fall short of harassment sufficiently severe or pervasive to deprive them of educational opportunities because they fail to allege their academic performance was affected by the alleged harassment, relying primarily on Hendrichsen . (See Dkt. 42 at 5). In Hendrichsen , a university student sued the university under Title IX alleging sexual harassment by her professor created a hostile learning environment.
These cases are distinguishable from Plaintiffs' claim first because the courts in Hendrichsen and Gabrielle were considering a motion for summary judgment and therefore "privy to all the information concerning the impact on the harassment on the victim's education." See, e.g., S.G. v. Rockford Bd. of Educ. , No.
More importantly, however, none of the cases involve a Title IX claim for teacher-on-student harassment of a minor student; rather, they involve either a claim under Title VII for workplace harassment or a claim under Title IX for student-on-student harassment or teacher-on-student harassment of an adult student. This distinction is significant, as recognized by the Supreme Court in Davis :
Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. Indeed, at least early on, students are still learning how to interact appropriately with their peers....
The fact that it was a teacher who engaged in harassment in Franklin and Gebser is relevant. The relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX's guarantee of equal access to educational benefits and to have a systemic effect on a program or activity. Peer harassment, in particular, is less likely to satisfy these requirements than is teacher-student harassment.
It follows from Davis not only that courts must view harassment between adults differently than harassment involving a minor but also that courts require a greater showing that the alleged harassment affected a minor student's educational experience where her alleged harasser is a peer. See, e.g.,
Therefore, Plaintiffs need not allege specific facts showing precisely how their academic performance was affected, i.e. lower grades, increased absenteeism, etc., a required in the cases cited by the Board. The allegations that Cruz's misconduct made Jane Doe I feel "very nervous," "scared," "disgusted," "weird," uncomfortable" and "intimated" while at school and caused her to experience "mental anguish, humiliation, and emotional and physical distress" and that his misconduct made Jane Doe II feel "angry and uncomfortable" while at school and caused her to transfer to another high school outside the CPS district are sufficient to give rise to a reasonable inference that they were subject to sexual harassment by their teacher that deprived them of the same educational opportunities available to other students. In fact, the fact that Jane Doe II transferred to a different school district is sufficient in and of itself to allege Title IX liability as to her. See, e.g., Rockford Bd. of Educ. ,
B. Deliberate Indifference to Known Incidents of Harassment
As stated above, to succeed on a Title IX claim, a plaintiff must also show both that the school district had actual notice of the alleged harassment and acted deliberately indifferent to it. Hansen ,
Under Gebser , "a plaintiff in a Title IX damages suit based on a teacher's behavior must prove both 'actual knowledge of misconduct, not just actual knowledge of the risk of misconduct, and ... that the officials having that knowledge decided not to act on it.' " Hansen ,
Here, Plaintiffs sufficiently allege the Board had actual knowledge of Cruz's sexual harassment of female students at RCHS before any incident involving Jane Doe I or II occurred. By Fall of 2016, at least seven incidents of harassment by Cruz had been reported to RCHS administration, four of which occurred within the four years leading up to the incidents involving Jane Doe I and II. These complaints were made by students, parents and even RCHS employees who witnessed the harassment or abuse first hand. In several instances, the allegations were confirmed by other students and in one instance Cruz actually admitted to the RCHS principal that he in fact abused a female student. In yet another, the police actually arrested Cruz for physical battery based on the parent's complaint. See, e.g., Doe 4 v. Freeburg Cmty. Consol. Sch. Dist. No. 70,
II. State Law Claims
The Board argues that Plaintiffs' remaining state-law claims against it are barred by the Illinois Tort Immunity Act, 745 ILCS 10/1-101 et seq. The Board cites various provisions of the Tort Immunity Act, each of which is addressed in turn below. The Tort Immunity Act provides affirmative defenses, Van Meter v. Darien Park Dist. ,
The Board alternatively argues that it cannot be liable for any claim involving Cruz's sexual assault of Jane Doe I and II because (a) Cruz was not acting within the scope of his employment when he committed the alleged sexual misconduct and (b) the Board had no duty to Jane Doe I or II to prevent criminal acts committed by Cruz.
A. Failure to Enforce Board Policies, §§ 2-103, 2-205
The Board claims that Sections 2-103 and 2-05 of the Tort Immunity Act provide it absolute immunity from liability for any alleged failure to enact, follow or enforce the law or its own rules or policies. (Dkt. 42 at 8-9). Specifically, the Board seeks to dismiss Plaintiffs' claims for NEID, failure to supervise, and negligent failure to control Cruz's conduct (Counts II, III, VIII, X and XI) which allege the Board "fail[ed] to document complaints received against Cruz in violation of [Board] policies" (Dkt. 40 at ¶¶ 145(c), 152(c), 200(c), 207(c) ) and failed to warn or disclose to individual female students and their parents the past complaints received against Cruz. (Id. at ¶¶ 144(d), 152(d)-(f), 183, 200(d), and 207(d)-(f) ). The Board argues the latter allegation "indirectly criticiz[es] the Board policy and procedure related to parent and student notifications, warnings and/or other communications and the nature and extent of any prior investigations." (Dkt. 42 at 6).
Section 2-103 of the Act immunizes local public entities from liability for "an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law." 745 ILCS 10/2-103. Section 2-205 similarly immunizes any public employee from liability "for any injury caused by his adoption of, or failure to adopt, an enactment or by his failure to enforce any law."
Section 2-103 and 2-205 apply to claims based on violations of "law," which the Act defines to include any "constitutional provision, statute, ordinance or regulation" or any "rule ... or order ... having the force of law." See 745 ILCS 10/1-203, 1-205, 1-208. The Board claims that its "policies" have the force of law as required under Section 2-103 and 2-205 on two grounds: (1) pursuant to 105 ILCS 5/34-19 which provides that the "by-laws, rules and regulations" established by the Board for the management of its schools "shall have the force of ordinances" (Dkt. 42 at 8) and (2) as part of the School Code. (See Dkt 42 at 8-9, Dkt. (citing to Doe v. Vill. of Schaumburg ,
B. Failure to Provide Police Protection, § 4-102
The Board next claims that it is immune from liability for any claim arising out its alleged failure to provide protection to Plaintiffs from Cruz's alleged misconduct under Section 4-102 of the Act. Specifically, the Board seeks to dismiss Plaintiffs' claims for NEID, failure to supervise, negligence, willful and wanton conduct, and negligent failure to control Cruz's conduct-which allege the Board "fail[ed] to protect" Jane Doe I and II despite knowing Cruz had sexually harassed other female students (see, e.g., Dkt. 40 at ¶¶ 145(b), 152(b), 156(d) ) and "fail[ed] to properly investigate and protect students" from misconduct that would likely result in injury (see, e.g., id. at ¶¶ 159. 214)-on this basis. (Dkt. 42 at 9-10).
Section 4-102 immunizes local public entities and public employees from liability for failing to provide police protection services or inadequate police protection services:
Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.
745 ILCS 10/4-102. Where applicable, Section 4-102 applies both to negligent and willful and wanton misconduct. DeSmet ex rel. Estate of Hays v. Cty. of Rock Island ,
Section 4-102 codified the common law public-duty rule that a public entity is under no duty to provide and is not liable for its failure to provide adequate government services, such as police protection. Albert v. Bd. of Educ. of City of Chi. ,
Throughout the Complaint, Plaintiffs allege the Board failed to protect them in various ways including by failing to supervise Cruz, to discipline Cruz, to implement a "safety plan," to properly investigate past complaints against Cruz, and to warn or disclose past complaints against Cruz to female students and their parents. (See, e.g., Dkt. 40 at ¶¶ 76, 113, 156, 182). In determining whether these safeguards constitute "police protection services," the Court must focus on the purpose of providing these safeguards in the first place and not on the conduct causing the alleged injuries. Ortega-Piron ,
C. Failure to Supervise, § 3-108
The Board claims that it is immune under Section 3-108 of the Act from liability for Plaintiffs' "failure to supervise" claims (Counts III and XI) and negligence claims based on its alleged "failure to adequately supervise" Cruz (Counts IV, XII and VIII). (See Dkt. 40 at ¶¶ 156, 211, 185). Section 3-108 provides:
(a) Except as otherwise provided in this Act, neither a local public entity nor a public employee who undertakes to supervise an activity on or the use of any public property is liable for an injury unless the local public entity or public employee is guilty of willful and wanton conduct in its supervision proximately causing such injury.
(b) Except as otherwise provided in this Act, neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property unless the employee or the local public entity has a duty to provide supervision imposed by common law, statute, ordinance,code or regulation and the local public entity or public employee is guilty of willful and wanton conduct in its failure to provide supervision proximately causing such injury.
745 ILCS 10/3-108. This provision provides immunity only for negligent conduct; it does not apply to allegations of willful and wanton misconduct (id. ) and, therefore, provides no immunity to the Board for Plaintiffs' failure to supervise claims in Counts III and IX. (See Dkt. 40 at ¶¶ 152, 207 (alleging the Board was "willful and wanton" in failing to supervise Cruz) ). Plaintiffs' negligence and negligent failure to control conduct claims, however, include no such allegations of willful and wanton misconduct (see
D. Implication of Discretionary Policy Decisions, § 2-201
The Board argues it is immune under Section 2-201 of the Act from liability for Plaintiffs' failure to supervise, negligence, willful and wanton misconduct, negligent retention, negligent failure to control Cruz's conduct claims (Counts III-VI, VIII, XI-XIII) because they implicate policy decisions made by the Board related to employee discipline, supervision, and retention. (Dkt. 42 at 11-13). Section 2-201 immunizes public employees from liability where the injury claimed is based on a discretionary policy decision:
Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.
745 ILCS 10/2-201 ; see also, e.g. , Doe ex rel. Doe v. White ,
Illinois courts apply a two-part test to determine which employees may be granted immunity under Section 2-201 : the employee (1) must "hold[ ] either a position involving the determination of a policy or a position involving the exercise of discretion," and (2) must also have engaged in both the determination of policy and the exercise of discretion when performing the act or omission from which the plaintiff's injury resulted."
The Board argues generally that "all allegations related to the Board's actions or inactions relative to Cruz's employment would have involved a determination of policy and an exercise of discretion." (Dkt. 42 at 12). But deciding whether Section 2-201 applies is a fact-specific inquiry and can be done "only on the particular facts established in a particular case." White ,
E. Negligence Claims based on Criminal Conduct Committed by Cruz
Finally, the Board moves to dismiss any negligence claim against it based on criminal conduct committed by Cruz on the
Specifically, the Board argues it cannot be held liable for NEID based on Cruz's sexual battery of Plaintiffs because Cruz was not acting within the scope of his employment when he committed the sexual misconduct. (Dkt. 42 at 13-14). Whether an employee acted within his or her scope of employment is relevant where the plaintiff seeks to hold a defendant liable under a theory of respondeat superior. See Glade ex rel. Lundskow v. United States ,
In support of its argument, the Board cites to Doe ex rel. Doe v. Lawrence Hall Youth Services in which a student alleged among other things that a school negligently supervised him by allowing him to sneak off campus and engage in sexual activity with a female teacher.
The Board next argues that all negligence claims based on Cruz's criminal
Additionally, the Board could be held liable for each of these claims under an alternative theory of liability: breach of the duty under Illinois law to protect Jane Doe I and II against harms created by their own conduct. See id. at 515 ("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.") (citing Cuyler v. United States ,
Accordingly, the Court denies the Board's motion to dismiss any of the negligence claim asserted against it based on criminal conduct committed by Cruz on either of these bases.
CONCLUSION
For the reasons stated above, the Board's Motion to Dismiss (Dkt. 42) is granted in part and denied in part. The Court dismisses without prejudice Plaintiffs' claim for Negligent Failure to Control Conduct of Cruz (Count VIII) and claims for Negligence based on the failure to supervise Cruz (Counts IV, XII). All
Notes
On February 5, 2019, the en banc Court of Appeals will hear argument in Jane Doe No. 55 v. Madison Metropolitan School District (No. 17-1521), which asks that court to consider the appropriate level of proof for actual notice in a Title IX claim, urging it to adopt the "substantial risk" standard that the majority of its sister circuits have, as opposed to the "almost certain risk" standard that the now-vacated panel opinion purported to apply. Because the plaintiffs' allegations here exceed the latter, higher bar, Jane Doe No. 55 does not control the disposition of the Board's motion, and the Court need not consider the issue any further.