                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-2700
NICOLE DELGADO,
                                               Plaintiff-Appellant,
                                v.

JAMES C. STEGALL and
WESTERN ILLINOIS UNIVERSITY,
                                            Defendants-Appellees.

                         ____________
            Appeal from the United States District Court
                for the Central District of Illinois.
              No. 01-1332—Michael M. Mihm, Judge.
                         ____________
         ARGUED APRIL 5, 2004—DECIDED MAY 4, 2004
                         ____________



  Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.
  POSNER, Circuit Judge. Nicole Delgado, a former student
at Western Illinois University, a state university, claims to
have been harassed by a professor at the university named
James Stegall. She filed this suit for damages against the
university under Title IX of the Educational Amendments of
1972, 20 U.S.C. §§ 1681-1688, and against Stegall under the
Civil Rights Act of 1871, 42 U.S.C. § 1983. The district judge
granted summary judgment for both defendants. He ruled
that Delgado had failed to establish a violation of Title IX by
2                                                 No. 03-2700

the university and that Title IX provides the exclusive
federal remedy for a teacher’s misconduct toward a student;
the latter ruling let Stegall off the hook.
  Delgado, a music student at Western Illinois, was hired by
her voice teacher, Stegall, to be his “office assistant” during
her sophomore year. The record does not reveal the duties
of the position except that they were somehow connected to
Stegall’s job as choral director. Part-time work for professors
is a common activity of college students, and although
sexual harassment of university employees is not actionable
under Title IX if the employee could obtain relief under Title
VII, Waid v. Merrill Area Public Schools, 91 F.3d 857, 861-
62 (7th Cir. 1996); Lakoski v. James, 66 F.3d 751, 753-58 (5th
Cir. 1995), there is no contention that the kind of part-time
position that Delgado held (whatever exactly it involved),
even though it made her an employee of the university,
precludes her from complaining that she was harassed as a
student and therefore can seek a remedy under Title IX. We
cannot find any cases dealing with the question but it seems
to us that harassment of a student interferes with her
educational experience whether or not she is also a part-
time employee; the harassment of a nonstudent employee
could have no such effect.
  Stegall made advances to Delgado after she became his
office assistant, repeatedly asking her “Do you love me?”
and “Would you ever marry a man like me?” He would also
ask her for hugs, rub her shoulders, and tickle her. Troubled
by these attentions, she confided her distress to another
music teacher, a woman, who told her to “remove herself
from the situation, get herself to counseling, get her parents
involved, and go see the chair and/or the dean.” She did
speak to a counselor about things that were bothering her,
including “the uncomfortableness of the comments [Stegall]
was making.” But neither the counselor nor the music
No. 03-2700                                                 3

teacher reported Stegall’s misconduct to his dean or any
other university official. Eventually, however, though only
after transferring to another college, Delgado filed a com-
plaint with Western Illinois University against Stegall. The
university responded by directing him to undergo training
in proper behavior toward female students and by placing
“a letter . . . in Dr. Stegall’s personnel file, outlining the
actions to be taken and the method for evaluating their
effectiveness.”
  It turns out that Stegall had made advances to three other
woman students, but they had never filed complaints and
his conduct hadn’t come to the attention of the university
administration. Actually there had been a fourth episode,
ten years earlier, that had led to a complaint being made to
the university about Stegall but Delgado makes nothing of
this—in fact does not even mention it in her briefs.
  Two years before Stegall’s alleged harassment of Delgado,
his dean, James Butterworth, Dean of the College of Fine
Arts and Communications at the university, had investi-
gated possible sexual harassment by unnamed members of
the art faculty. Stegall was and is a member of the music
department, however, and no harassment by music faculty
had been reported. Butterworth responded to the allegations
concerning the art department by recommending to the
university’s president and provost the elimination of alcohol
from social events sponsored by the department at which
both teachers and students were present, the convening of
meetings with current and incoming students to discuss the
university’s rules on fraternization and harassment, and the
distribution of copies of the rules to all faculty. The recom-
mendations were adopted and implemented.
  Title IX prohibits sex discrimination in educational pro-
grams or activities supported by federal grants. 20 U.S.C.
4                                                 No. 03-2700

§ 1681(a). The only remedy specified in the statute is the
elimination of the federal funding, § 1682, but in Cannon v.
University of Chicago, 441 U.S. 677, 717 (1979), the Supreme
Court held that the statute by implication entitles a person
injured by a violation to sue for damages. When, however,
the claim for damages is based on the behavior of a teacher
or of some other employee of the Title IX recipient, the
plaintiff must prove that “an official of the [defendant
educational institution] who at a minimum has authority to
institute corrective measures . . . has actual notice of, and is
deliberately indifferent to, the teacher’s misconduct.” Gebser
v. Lago Vista Independent School District, 524 U.S. 274, 277
(1998); see also id. at 290-91; Davis v. Monroe County Board of
Education, 526 U.S. 629, 642-43 (1999); Gabrielle M. v. Park
Forest-Chicago Heights, Illinois School Dist. 163, 315 F.3d 817,
821 (7th Cir. 2003); Hayut v. State University of New York, 352
F.3d 733, 750-53 (2d Cir. 2003). Western Illinois concedes
that both Dean Butterworth and the chairman of the music
department were officials clothed with the requisite author-
ity. But it denies that either of them had actual notice of
Stegall’s misconduct toward Nicole Delgado (or any other
student—which Delgado, by failing to mention the incident
ten years earlier, has in effect conceded) or was deliberately
indifferent to that misconduct.
  Here a peculiarity of the Supreme Court’s formula should
be noted. Ordinarily, actual notice and deliberate indiffer-
ence are alternative paths to proving knowledge. Deliberate
indifference means shutting one’s eyes to a risk one knows
about but would prefer to ignore. Boncher v. Brown County,
272 F.3d 484, 486 (7th Cir. 2001); Collignon v. Milwaukee
County, 163 F.3d 982, 988 (7th Cir. 1998); Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1314 (11th Cir. 2001). It thus
corresponds to the criminal definition of reckless-
ness, Delaney v. DeTella, 256 F.3d 679, 686 (7th Cir. 2001);
Collignon v. Milwaukee County, supra, 163 F.3d at 988;
No. 03-2700                                                      5

Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); Weaver
v. Shadoan, 340 F.3d 398, 410 (6th Cir. 2003), which the law
treats as the equivalent of intentionality. TRW Title Ins. Co.
v. Security Union Title Ins. Co., 153 F.3d 822, 828 (7th Cir.
1998); United States v. Ladish Malting Co., 135 F.3d 484,
488 (7th Cir. 1998); J.I. Case Credit Corp. v. First National Bank,
991 F.2d 1272, 1278 (7th Cir. 1993); McGinty v. State, 193 F.3d
64, 69-70 (2d Cir. 1999). For “if a person with a lurking
suspicion goes on as before and avoids further knowledge,
this may support an inference that he has deduced the truth
and is simply trying to avoid giving the appearance (and
incurring the consequences) of knowledge.” United States v.
Ramsey, 785 F.2d 184, 189 (7th Cir. 1986); see also United
States v. Giovannetti, 919 F.2d 1223, 1226-29 (7th Cir. 1990).
But under the Supreme Court’s formula, the plaintiff in a
Title IX damages suit based on a teacher’s behavior must
prove actual knowledge of misconduct, not just actual
knowledge of the risk of misconduct, and must also prove
that the officials having that knowledge decided not to act
on it.
   There is less to the distinction than meets the eye. Obvi-
ously a school’s officials know in a general sense that there
is a risk that one or more of its teachers will harass a student
sexually, even if no such incident has ever occurred in the
school. That is not the kind of knowledge that establishes
recklessness should the officials take no action against the
risk. When the cases speak of a “known” or “obvious” risk
that makes a failure to take steps against it reckless they
have in mind risks so great that they are almost certain to
materialize if nothing is done, Higgins v. Correctional Medical
Services of Illinois, Inc., 178 F.3d 508, 511 (7th Cir. 1999); West
By and Through Norris v. Waymire, 114 F.3d 646, 650-52 (7th
Cir. 1997); Billman v. Indiana Dept. of Corrections, 56 F.3d 785,
788 (7th Cir. 1995); Coleman v. Rahija, 114 F.3d 778, 785-
86 (8th Cir. 1997), for it is only in such cases that reckless-
6                                                No. 03-2700

ness regarding the consequences if the risk materializes
merges with intention to bring about the consequences
(more precisely, to allow the consequences to occur though
they could readily be prevented from occurring). And that
ought to be enough for liability under Title IX.
  So if, for example, Stegall had been known to be a serial
harasser, Butterworth might well be found to have had a
sufficient approximation to actual knowledge that Delgado
would be harassed to satisfy the Supreme Court’s standard.
After all, in Davis the Court required knowledge only of
“acts of sexual harassment” by the teacher, Davis v. Monroe
County Board of Education, supra, 526 U.S. at 641, not of pre-
vious acts directed against the particular plaintiff. See also
id. at 653-54 (attaching significance to the fact that there
were “multiple victims who were sufficiently disturbed by
G. F.’s misconduct to seek an audience with the school
principal”); Baynard v. Malone, 268 F.3d 228, 238 (4th
Cir. 2001); P.H. v. School District of Kansas City, 265 F.3d
653, 661-63 (8th Cir. 2001). But Stegall was not known by
anyone in the university administration, such as Dean
Butterworth, to be harassing other students. To repeat,
Delgado attaches no weight to the ten-year-old episode,
which would in any event be only weak evidence that
Stegall’s current students were at so high a risk of being
harassed by him that university officials’ knowledge of the
earlier episode would make them reckless for having failed
to take steps to prevent a recurrence.
  Delgado’s second claim is against Stegall and is based not
on Title IX (which it could not be based on because only the
educational institution itself—the grant recipient—can be a
defendant in a suit under that statute, Boulahanis v. Board of
Regents, 198 F.3d 633, 640 (7th Cir. 1999); Smith v.
Metropolitan School Dist., 128 F.3d 1014, 1018-21 (7th Cir.
1997); Kinman v. Omaha Public School Dist., 171 F.3d 607, 609-
No. 03-2700                                                    7

11 (8th Cir. 1999)), but on 42 U.S.C. § 1983, which creates a
remedy for a person who is deprived of his or her federal
rights under color of state law. Stegall is a state actor who,
if the facts alleged by Delgado are correct, as we must
assume in the posture of the case before us that they are,
used his position to discriminate against her on the basis of
her sex, in violation of her federally protected right to the
equal protection of the laws. Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 66-67 (1986). The question is whether by
enacting Title IX Congress intended to extinguish the right
to sue under section 1983 that Delgado would otherwise
have. The district judge felt constrained by this court’s
decisions to answer yes, though he also expressed his dis-
agreement with those decisions and with the result that they
seemed to him to dictate in this case. We think his instincts
were sound, but that the cases in question are distinguish-
able from the present one.
  The doctrine to which Stegall appeals originated in
Middlesex County Sewerage Authority v. National Sea Clammers
Ass’n, 453 U.S. 1, 20-21 (1981), and goes by the name of the
“sea clammers” doctrine. The plaintiffs in that case sought
relief from pollution against state officials under federal
statutes that provided comprehensive and fully adequate
remedies. The Supreme Court had recently held, however,
that section 1983, though typically used to enforce federal
constitutional rights, reaches infringements of federal
statutory rights as well. Id. at 19; Maine v. Thiboutot, 448 U.S.
1, 4-8 (1980). This ruling opened up the possibility that
anyone who had a federal statutory remedy for a harm
inflicted under color of state law could tack on a claim for
relief under section 1983 as well. Worse, even if Congress
hadn’t intended that a particular federal statute be enforce-
able by private damages suits, a person injured by a viola-
tion of the statute would be able to enforce it privately
under section 1983. By doing so he would not only be
8                                                 No. 03-2700

bypassing the need to show that Congress in enacting the
statute had intended that there be a private right to enforce
it, but indeed acting contrary to Congress's intent. So, in the
sea-clammers case, the Court decided to limit Thiboutot:
after rejecting the plaintiffs’ statutory claims, the Court held
that section 1983 was not an available alternative because “it
is hard to believe that Congress intended to preserve the
§ 1983 right of action when it created so many specific
statutory remedies.” 453 U.S. at 20. The completeness of
those remedies showed that Congress “intended to supplant
any remedy that otherwise would be available under
§ 1983.” Id. at 21.
  The sea-clammers doctrine has been applied in a variety
of contexts since its creation. See, e.g., PrimeCo Personal
Communications, Ltd. Partnership v. City of Mequon, 352
F.3d 1147, 1151-53 (7th Cir. 2003); Lollar v. Baker, 196 F.3d
603, 608-10 (5th Cir. 1999); Mattoon v. City of Pittsfield, 980
F.2d 1, 5-6 (1st Cir. 1992); Zombro v. Baltimore City Police
Dept., 868 F.2d 1364, 1366-70 (4th Cir. 1989). Of particular
significance for the present case is our application of it
in two cases that provide the entire basis for Stegall’s ar-
gument and the district court’s ruling. They are Waid v.
Merrill Area Public Schools, supra, 91 F.3d at 862-63, and
Boulahanis v. Board of Regents, supra, 198 F.3d at 639-40. In
Waid a teacher, and in Boulahanis student athletes, complain-
ing of sex discrimination, brought suit against the educa-
tional institution itself under Title IX, and also against
employees of the institution under section 1983, and we
held that the sea-clammers doctrine barred the section 1983
claims. The individual defendants in the two cases, how-
ever, were not teachers or other ordinary employees. In
Waid they were the school district’s director of curriculum
and the principal of the school that had passed over Waid
for a permanent appointment, and we described them as
“officers” and “officials” of the school district. 91 F.3d at
No. 03-2700                                                  9

862. In Boulahanis, similarly, the individual defendants are
described as university “officials,” though without further
specification. 198 F.3d at 639.
   It is easy to see why Title IX might be thought to supplant
section 1983 suits against the school officials responsible for
the policy or practice that violates Title IX, though not all
courts agree. Compare Pfeiffer v. Marion Center Area School
District, 917 F.2d 779, 789 (3d Cir. 1990), which we followed
in Waid and Boulahanis, and also Bruneau ex rel. Schofield v.
South Kortright Central School District, 163 F.3d 749, 756-
59 (2d Cir. 1998), with Crawford v. Davis, 109 F.3d 1281, 1283-
84 (8th Cir. 1997); Seamons v. Snow, 84 F.3d 1226, 1233-34
(10th Cir. 1996), and Lillard v. Shelby County Board of Educa-
tion, 76 F.3d 716, 722-24 (6th Cir. 1996), all rejecting the
holding of Pfeiffer. The issue was expressly left open by the
Supreme Court in Gebser. 524 U.S. at 292. Title IX, especially
having been interpreted in Cannon to provide a damages
remedy, furnishes all the relief that is necessary to rectify
the discriminatory policies or practices of the school itself.
But it is quite otherwise in a case such as this, in which the
malefactor is a teacher whose malefaction is not a policy or
a practice for which the school could be held liable under
Title IX. In Bruneau, Crawford, and Lillard, teachers were
named as section 1983 defendants along with school
officials, but nothing was made of the distinction between
the two types of defendant. The distinction is crucial. The
only possible effect of applying the sea-clammers doctrine
to this case would be to immunize Stegall from liability for
his federal constitutional tort. How this could be thought to
have been intended by Congress when it enacted Title IX
without providing any damages remedy, or to advance the
policies of that statute, is beyond us.
  Stegall argues feebly that since states often indemnify
their employees for tortious misconduct, the university may
10                                                No. 03-2700

be harmed financially if he is held liable to Delgado under
section 1983. If such liability pinches the university, then it
can cease indemnifying such tortfeasors; no statutory
change would be necessary, because Illinois law requires the
state to indemnify its employees only for the torts they
commit within the scope of their employment. 5 ILCS
350/2(d); Nichol v. Stass, 735 N.E.2d 582, 587 (Ill. 2000); cf.
745 ILCS 10/9-102; Doe v. City of Chicago, 360 F.3d 667,
670 (7th Cir. 2004); see generally Dan B. Dobbs, The Law of
Torts § 273, p. 733 (2000). At common law the duty of
indemnity actually runs the other way—the employee who
commits a tort for which his employer is liable under the
doctrine of respondeat superior has a duty to indemnify the
employer if the latter is sued and loses. Id. § 333, p. 906; W.
Page Keeton et al., Prosser and Keeton on the Law of Torts § 51,
p. 341 (5th ed. 1984); Restatement (Second) of Agency § 401
and comment d (1958). Conceivably a university will have
to pay a higher wage to teachers if they are exposed to the
possibility of suit, but that is not a plausible basis for
imputing to the Congress that enacted Title IX an intent to
repeal the section 1983 rights of students. The legislators
who enacted Title IX would be startled to discover that by
doing so they had killed all federal remedies for sex dis-
crimination by teachers of which the school lacked actual
knowledge.
  Stegall is asking us in effect to rule that Congress in Title
IX repealed by implication a swatch of section 1983, though
there is no possible conflict between these two federal
statutes in cases in which relief is sought against a teacher
or other nonmanagerial employee and no hint of such a
purpose in the background or history of Title IX. The
Supreme Court has said that where two federal statutes can
coexist, the later one is not to be deemed to have repealed
the earlier one unless there is some indication of a congres-
No. 03-2700                                                 11

sional intent to do so, even though the result may be
(though not in this case) to give the plaintiff a choice of
federal remedies. Branch v. Smith, 538 U.S. 254, 273 (2003);
J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S.
124, 141-44 (2001). Even without a presumption against
repeals by implication, Stegall’s argument would fail
because there is no reason to suppose that holding that Title
IX wiped out a big piece of section 1983 would serve any of
the purposes that animated Congress in passing Title IX.
Delgado’s suit against Stegall must therefore be reinstated.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                     USCA-02-C-0072—5-4-04
