By Lorraine Bailey/Courthouse News
CHICAGO (CN) – The full Seventh Circuit held oral arguments Tuesday to decide whether a Wisconsin school district can be held liable for not taking action against a security guard who frequently “full frontal bear hugged” and massaged students, leading to accusations he sexually abused a middle school girl.
“The question posed by this case is, how far are we going to let a man touch a schoolgirl in the 21st Century?” plaintiff’s counsel Jeffrey Herman, a lawyer who specializes in high-profile sexual abuse lawsuits, told the court.
Jane Doe attended Whitehorse Middle School in the Madison Metropolitan School District from 2011 to 2014.
During this time, Willie Collins, a security assistant at the school and larger-than-life presence on campus, allegedly groomed and repeatedly sexually assaulted her, including touching her breasts and rubbing his penis against her clothed body.
Doe’s mother discovered the alleged abuse when the girl entered high school, and sued the school district seeking to hold it liable for failing to protect her daughter.
According to Whitehorse Principal Deborah Ptak, many students saw Collins as a mentor and confidant, and students – male and female – often ran up to give him a hug.
Given Collins’ regular physical contact with students, she did not think anything of his conduct toward Doe, and did not consider Collins’ hugs or shoulder massages that he regularly gave students to be sexual in nature.
Several school staff members did report seeing Doe kiss Collins on the cheek, and Ptak responded to these concerns by calling a meeting where she cautioned Collins about the need to set “strong boundaries” and told him “hugging and her jumping on him” was not appropriate.”
But Doe claims that Collins’ conduct was classic grooming behavior, and says he treated girls and boys differently – giving rise to a Title IX gender discrimination claim against the district for allowing sexual harassment in school.
A federal judge ruled for the school district, finding that Ptak and other school officials did not know about the alleged abuse despite certain red flags, and a three-judge panel of the Seventh Circuit affirmed in July.
At an en banc hearing Tuesday, the full court wrestled with the legal question of what constitutes “actual knowledge” of sexual harassment. A plaintiff in a Title IX suit must prove actual knowledge of misconduct, not just actual knowledge of the risks of misconduct.
“Little girls cannot consent to being touched by an older man,” Doe’s attorney, Herman, argued. “All touching by a man of this nature is unwelcome and inappropriate.”
Collins frequently gave little girls a “full frontal bear hug,” which Herman defined to the court as “chest-to-chest, private area-to-private area.”
Ptak was well aware that Collins hugged students – especially girls, according to Doe – and gave students shoulder massages. The principal’s actual knowledge of this conduct is actionable, Herman told the court.
“If this were the workplace, it would be sexual harassment,” Herman said.
U.S. Circuit Judge Diane Sykes was not convinced.
“Is it your position that the shoulder rubs alone are actionable?” Sykes asked, with disbelief evident in her voice.
“Yes, that’s inappropriate behavior,” Herman said.
“It may be inappropriate, but is it discrimination?” Sykes replied.
With a bit of an eye roll, U.S. Circuit Judge Michael Kanne asked how to tell the difference between a hug and a bear hug.
Herman explained that the school permitted “side hugs” but Collins gave students “full frontal” hugs with his private area touching the student’s private area.
Peggy Van Horn, the school district’s attorney, emphasized in her argument that “90 percent of the testimony says that hugs were initiated by students,” not by Collins. Later she added, “Some grooming behavior can also be considered mentoring behavior,” and said Ptak believed the hugs were a sign of Collins’ close connection with students.
But Chief U.S. Circuit Judge Diane Wood expressed concern that Principal Ptak may have disregarded clear warning signs of grooming, leaving a vulnerable girl in danger.
“I’m reluctant to put this at the foot of a 12-year-old,” Wood said. “They don’t have any brains,” she added to laughter, citing her experience raising her own children.
Rather, Judge Wood stressed that trained teachers passed serious concerns to the principal, who evidently found the hugs inappropriate enough to hold a meeting and tell Collins he needed to enforce strong boundaries.
Herman followed up on this point in rebuttal, arguing that Ptak had actual knowledge of Collins’ inappropriate behavior because she held this meeting, but she did nothing to prevent Collins from continuing to hug students, to ensure that his relationship with Doe was appropriate, or to inform Doe’s parents about possible concerns.
“The remedial measure was clearly unreasonable,” Herman said.
In response to a question from U.S. Circuit Judge David Hamilton, Van Horn informed the court that Collins still works for the school district after the district attorney declined to pursue criminal charges against him.
“This is a very important case, and a very timely case,” Herman said in an interview after the arguments.
Herman has represented victims in many high-profile cases nationwide, including alleged victims of Harvey Weinstein, accusers in the lawsuit against Elmo puppeteer Kevin Clash, and victims of Catholic priest sexual abuse in Miami.
“As a matter of law, a full frontal hug is harassment,” Herman said, especially in a school context because it is “always non-consensual.”
The attorney added that he is “very concerned” that Collins continues to work for the school district, despite these allegations against him. However, the lack of criminal charges against Collins has no bearing on the lawsuit.
The Seventh Circuit is expected to issue a ruling in the case within three months.