                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3442

R ITA T RENTADUE,
                                             Plaintiff-Appellant,
                              v.

L EE R EDMON and P EKIN C OMMUNITY
H IGH S CHOOL D ISTRICT N O . 303,
                                          Defendants-Appellees.


          Appeal from the United States District Court
                for the Central District of Illinois.
          No. 1:06-cv-01296—Michael M. Mihm, Judge.



   A RGUED S EPTEMBER 23, 2009—D ECIDED A UGUST 18, 2010




 Before FLAUM, W OOD , and S YKES, Circuit Judges.
  S YKES, Circuit Judge. Sergeant Mark Cole, an instructor
in the Junior Reserve Officer Training Corps (“JROTC”)
program at Pekin High School in Central Illinois, sexually
abused a female student enrolled in the program. Cole
was criminally charged, convicted, and sentenced. Rita
Trentadue, the victim, then brought this lawsuit alleging
a § 1983 claim against Cole and his supervisor Major Lee
Redmon, and a Title IX claim against Pekin Community
2                                                No. 08-3442

High School District No. 303. Trentadue eventually
dropped her § 1983 claim against Cole. The district court
dismissed the claim against Redmon based on circuit
caselaw holding that Title IX displaces § 1983 as a
remedy against school officials for sex discrimination in
schools. See Delgado v. Stegall, 367 F.3d 668, 673-74 (7th
Cir. 2004); Boulahanis v. Bd. of Regents, 198 F.3d 633, 639-40
(7th Cir. 1999); Waid v. Merrill Area Pub. Sch., 91 F.3d 857,
861-63 (7th Cir. 1996). The district court then granted
summary judgment for the School District on the Title IX
claim because there was no evidence that school
officials knew of Cole’s behavior and failed to stop it.
Trentadue appealed.
  We affirm. The Supreme Court’s intervening decision
in Fitzgerald v. Barnstable School Committee, 129 S. Ct.
788, 797 (2009), held that Title IX was not meant to be
an exclusive remedy and therefore does not preclude
suit under § 1983 for gender discrimination in schools.
This displaces our circuit caselaw to the contrary and
undermines the basis for the district court’s dismissal
of the § 1983 claim against Redmon. But the parties
agreed that the record was fully developed on summary
judgment, and based on our review of that record, we
conclude there is no triable issue of material fact on
either the § 1983 claim against Redmon or the Title IX
claim against the School District.


                      I. Background
  During the 2003-2004 school year, Rita Trentadue was
a junior at Pekin High School and participated in the
No. 08-3442                                            3

JROTC program. Major Lee Redmon supervised the
program and Sergeant Mark Cole was an instructor.
Starting in the summer months before the school year
began and continuing through September 30, 2003, Cole
had sexual contact with Trentadue on multiple occa-
sions. The abuse occurred in the JROTC staff office at
Pekin High and while they were out on drills away
from the high school. On several occasions he moved
his hand across her chest or down the back of her pants
while giving her a hug. He also put his hand between
her legs while she was a passenger in his car returning
from drill practice. Most disturbing of all, when she
fell asleep under a tree during a nighttime drill, he put
his hand inside her pants and touched her genital area.
  In early November 2003, Trentadue told her mother,
Mary Hubner, about this sexual abuse, and on the
morning of November 5, Trentadue and her mother
went to the high school to report Cole’s misconduct to
Trentadue’s guidance counselor. They then notified
the school’s principal, who immediately contacted the
district’s superintendent and assistant superintendent
for instruction and personnel. The principal summoned
Cole, informed him of the allegations, and directed him
to report to the Pekin Police Station. The superintendent
and assistant superintendent followed and interviewed
Cole there. When Cole was asked what had happened
with Rita Trentadue, he responded with what was es-
sentially an admission. (He said: “I [expletive] up.”)
The superintendent then asked for and received Cole’s
resignation. Cole was charged with aggravated criminal
sexual abuse and official misconduct and later pleaded
guilty to these crimes.
4                                              No. 08-3442

  On the morning of November 5, as Trentadue and
her mother were reporting Cole’s abuse to school offi-
cials, Trentadue’s stepfather, Conrad Hubner, arrived at
the high school to confront Cole. Instead of finding Cole
in the JROTC office, however, Hubner found Major
Redmon and told him about Cole’s misconduct. Redmon
said he had no knowledge of Cole’s behavior. However,
according to Hubner, Redmon also said this: “Well this
incident has happened before, and it just in time goes
away.” Redmon did not elaborate on this statement at
the time and was not asked to explain it at his deposition.
He did, however, submit an affidavit in connection
with the summary-judgment motion stating that his
reference to “this incident” had nothing to do with
Cole but related instead to an instance of inappropriate
sexual contact between a female JROTC student and
Redmon’s predecessor as supervisor of the program.
Redmon explained that as a result of that incident, his
predecessor’s contract was not renewed.
  The local newspaper ran an article about Cole’s arrest
on November 6, the day after Trentadue disclosed the
abuse to school officials. After the charges against
Cole became public, two former Pekin High students
disclosed that they, too, had been sexually abused by
him while in the JROTC program. Mattie Sutton
reported that Cole had sexual contact with her on
several occasions in the spring of 2002, and Carrie
Selby reported that Cole had sexual intercourse with her
in 1996. Redmon testified that he was not aware of
these allegations until the victims publicly reported the
abuse after Cole’s arrest; in fact, Redmon was not even
No. 08-3442                                             5

employed in the Pekin High JROTC program in 1996
when Selby was sexually assaulted. It is undisputed that
no one else at the school, including the school admini-
strators, knew about any of these incidents until after
Cole resigned in November 2003.
   Trentadue filed this lawsuit in the Central District of
Illinois alleging a claim under 42 U.S.C. § 1983 against
Redmon and Cole for violation of her right to equal
protection, and a claim against the School District for
violation of Title IX, see 20 U.S.C. § 1681. Trentadue
later voluntarily dismissed her claim against Cole. The
district court dismissed the § 1983 claim against
Redmon based on caselaw in this circuit holding that
Title IX precludes § 1983 claims of supervisory liability
against school officials. After the completion of discov-
ery, the court entered summary judgment for the
School District on the Title IX claim, and Trentadue
appealed.


                      II. Analysis
A. Dismissal of the § 1983 Claim Against Major Redmon
  We review de novo the dismissal of the § 1983 claim
against Redmon. Justice v. Town of Cicero, 577 F.3d 768,
771 (7th Cir. 2009). Trentadue’s § 1983 claim rested on
a theory of supervisory liability, and the district court
dismissed it on the rationale that Title IX provides an
exclusive remedy against supervisory officials for
sex discrimination in schools and thus precluded
Trentadue’s § 1983 claim. This decision was correct under
6                                               No. 08-3442

then-controlling circuit precedent. E.g., Doe v. Smith,
470 F.3d 331, 339 (7th Cir. 2006); Delgado, 367 F.3d at 673-
74; Waid, 91 F.3d at 862; see also Middlesex County
Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1,
20 (1981).
  However, after the district court entered its final judg-
ment but before the parties filed their appellate briefs,
the Supreme Court held that Title IX does not displace
§ 1983 claims against school officials because it was not
intended to be the exclusive remedy for addressing
gender discrimination in schools. Fitzgerald, 129 S. Ct.
at 797. The Court concluded in Fitzgerald that
“§ 1983 suits based on the Equal Protection Clause
remain available to plaintiffs alleging unconstitutional
gender discrimination in schools.” Id.
  Trentadue argues, and the defendants concede, that
the district court’s dismissal order is erroneous under
Fitzgerald. We agree. Fitzgerald is clear that Title IX
was not meant to replace § 1983 claims alleging viola-
tions of the Equal Protection Clause. Trentadue’s com-
plaint states a cognizable § 1983 claim against Redmon
on a theory of supervisory liability for violation of her
equal-protection rights. Remand would ordinarily be
appropriate but is not necessary here. The evidentiary
record is fully developed, and both the § 1983 and
Title IX claims hinge on the same set of facts, which
Trentadue’s counsel acknowledged at oral argument.
Accordingly, we move to the question whether there is
a material factual dispute for trial on either of
Trentadue’s claims.
No. 08-3442                                                7

B. Summary Judgment on the Title IX and § 1983 Claims
  Our review is de novo, Springer v. Durflinger, 518
F.3d 479, 483 (7th Cir. 2008), and summary judgment
is appropriate when the record reflects that there is no
issue of material fact to be tried and the moving party
is entitled to judgment as a matter of law. FED. R. C IV.
P. 56(c); see also Springer, 518 F.3d at 483. We construe
the facts and draw all reasonable inferences in favor
of the nonmoving party—in this case, Trentadue. See
Springer, 518 F.3d at 484. Once the defendants have
shown that the facts entitle them to judgment in their
favor, the burden shifts to Trentadue to identify some
evidence in the record that establishes a triable factual
issue. Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 402
(7th Cir. 1998). To satisfy this burden, Trentadue must
show more than “some metaphysical doubt as to the
material facts,” Springer, 518 F.3d at 484 (quotation
marks omitted), and neither speculation nor generic
challenges to a witness’s credibility are sufficient to
satisfy this burden, id.
  Redmon’s liability under § 1983 as Cole’s supervisor
requires some evidence that he knew about Cole’s
sexual misconduct and facilitated, approved, condoned,
or turned a blind eye to it. Hildebrandt v. Ill. Dep’t of
Natural Res., 347 F.3d 1014, 1039 (7th Cir. 2003) (citing
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
Similarly, the School District’s liability under Title IX for
a teacher’s sexual harassment of a student requires evi-
dence that a school official with authority to institute
corrective measures had actual knowledge of Cole’s
8                                                  No. 08-3442

misconduct and was deliberately indifferent to it. Hansen
v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 605
(7th Cir. 2008).
  It is undisputed that no administrator or official in the
Pekin School District knew about Cole’s sexual abuse of
Sutton or Selby prior to their public disclosure of that
abuse in November 2003 following the local news re-
ports.1 It is also undisputed that no one at the school—
including Redmon, Cole’s JROTC supervisor—knew
about Cole’s abuse of Trentadue until she and her
mother reported it to school officials on November 5,
2003. As such, both of Trentadue’s claims turn on
whether Redmon knew about Cole’s sexual abuse of
Sutton or Selby.2 Her entire argument on this critical
point rests on the statement Redmon made to Conrad
Hubner, Trentadue’s stepfather, in which Redmon said
that “this incident has happened before, and it just in
time goes away.”


1
  Trentadue testified at her deposition that her ex-boyfriend
suggested that Cole may have had some sort of inappropriate
contact with Mattie Sutton. However, there is no indication
in the record, and Trentadue does not argue, that any school
officials were aware of this.
2
  For Trentadue to state a prima facie case against the School
District under Title IX, Redmon must also be considered a
school official with authority to institute corrective measures.
See Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d
599, 605 (7th Cir. 2008). We have not previously considered
whether the head of a JROTC program is such an official, but
we need not answer the question here because Trentadue
cannot establish the existence of a triable issue of fact.
No. 08-3442                                              9

  Trentadue maintains that a reasonable jury could take
Redmon’s reference to “this incident” to mean that
Redmon knew about Cole’s earlier abuse of either
Selby, Sutton, or both. This is little more than an invita-
tion to speculation. There is no evidence to support this
interpretation of Redmon’s reference to “this inci-
dent”—nothing, that is, to make it reasonable to infer
from his generic phraseology that Redmon had specific
knowledge of Cole’s prior misconduct involving Selby
or Sutton. To the contrary, Redmon testified via
affidavit that he had no knowledge of Cole’s abuse of
either student until they came forward and reported it
in November 2003. He also explained in the affidavit
that his reference to “this incident” was directed at mis-
conduct committed by his predecessor as supervisor
of the JROTC program, which had led to the nonrenewal
of the predecessor’s contract. As such, the burden
shifted to Trentadue to identify some evidence creating
a genuine issue for trial on the key threshold question
of Redmon’s knowledge of Cole’s prior sexual abuse of
his students. See Dugan, 142 F.3d at 402.
  Trentadue suggests Conrad Hubner’s deposition testi-
mony is enough to get her case to a jury. Hubner testified
that when Redmon said “this . . . has happened before” and
“just in time goes away,” he thought Redmon must have
meant that “the problem gets swept underneath the
rug” or “they ignore the problem.” This assumption, too,
is based on speculation, not evidence or inferences rea-
sonably drawn from evidence about Redmon’s prior
knowledge. Trentadue did not question Redmon at his
deposition about the meaning of this statement, and so
10                                               No. 08-3442

Redmon’s affidavit is the only explanation of it that is
properly in the record. This explanation is uncontro-
verted as an evidentiary matter and cannot be overcome
by mere speculation. See Adams v. Wal-Mart Stores, Inc.,
324 F.3d 935, 939 (7th Cir. 2003).
  Finally, Trentadue argues in the alternative that the
School District might be held liable under Title IX based
on a theory of student-on-student harassment. This
argument is premised on the isolation and mistreatment
she claims to have suffered after her disclosure of Cole’s
abuse became public. She reports that she lost nearly all
of her friends, other students taunted her, a student
put gum in her hair, and another was arrested for
making an unspecified threat against her. Trentadue
sought counseling and says she suffered from recurring
nightmares.
   A school district may incur Title IX liability for student-
on-student sexual harassment if the district was deliber-
ately indifferent to harassment that was so pervasive,
severe, and objectively offensive that it denied the
student equal access to education. Davis v. Monroe County
Bd. of Educ., 526 U.S. 629, 649 (1999); Gabrielle M. v. Park
Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 821
(7th Cir. 2003). Trentadue cites no legal support for
her alternative theory of Title IX liability and has other-
wise failed to adequately develop this argument, and
underdeveloped arguments are considered waived.
Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)
(insufficiently developed arguments are waived); see also
F ED. R. A PP. P. 28(a)(9). Apart from the waiver, however,
No. 08-3442                                              11

the record simply does not suggest Trentadue was sub-
jected to student-on-student sexual harassment that was
so pervasive, severe, and objectively offensive as to
deny her equal access to education in violation of
Title IX. See Gabrielle M., 315 F.3d at 822 (general accusa-
tions do not support a cause of action). The defendants
have noted, to the contrary, that Trentadue’s grades did
not suffer, she was not extensively absent from school,
she graduated with a class rank of 27 out of over 500, and
thereafter enrolled in college. See id. at 823. Therefore,
the record does not support Trentadue’s alternative
argument for Title IX liability.
  Cole’s treatment of Trentadue was appalling, but
the record falls short of establishing a basis for § 1983 or
Title IX liability against Redmon or the School District,
respectively. Accordingly, we A FFIRM the entry of sum-
mary judgment dismissing Trentadue’s Title IX claim
against the School District and likewise A FFIRM the dis-
missal of her § 1983 claim against Redmon, though on
the alternative grounds explained in this opinion.




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