N K et al v. St Mary's Springs Academy of Fond du Lac Wisconsin Inc

Filing 35

ORDER signed by Judge J P Stadtmueller on 8/16/13 GRANTING in part 19 Defendant's Motion for Summary Judgment insofar as it relates to Plaintiffs' Title VI, Title IX, and punitive damages claims, and DENYING in part 19 Defendant's Motion for Summary Judgment insofar as it relates to Plaintiffs' state law claims; DISMISSING Plaintiffs' state law claims for lack of jurisdiction; and, all claims in this matter having been disposed, DISMISSING this matter. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
N.K. (a minor) and JODY LUECK,
Plaintiffs,
v.

Case No. 12-CV-1052-JPS

ST. MARY’S SPRINGS ACADEMY OF
FOND DU LAC WISCONSIN, INC.,
Defendant.

ORDER

Bullying is an extremely serious problem in our country, and it has
grown in both scope and visibility in recent years. With the advent of social
networking sites, bullied children often find themselves without the benefit
of a safe harbor. Not only must they be on guard at school, but also now at
home, where there are digital portals—computer, tablet, and phone—to yet
more ridicule. The national media has covered the issue extensively, after
several horrifying incidents that ultimately led to suicide.1
With that increased visibility, though, there has also been a growing
recognition amongst those who have covered bullying extensively
that society must be careful to define the term “bullying” properly.
Emily Bazelon, Op-Ed, Defining Bullying Down, N.Y. TIMES , March 11,
2013. Available online at http://www.nytimes.com/2013/03/12/opinion/definingbullying-down.html. One must be careful not to label as bullying every single
instance of spiteful conduct between children. Rather, as the bullying scholar

1

The Court will not go into detail or specify the widely-publicized names of
those who took their young lives after suffering from bullying; suffice it to say that
a quick Google search for bullying yields an unbelievably large number of stories
on the topic.

Emily Bazelon has pointed out in the New York Times, psychologists tend
to identify bullying as a repeated course of conduct involving a power
imbalance—typically one individual with more social status “lording it over
another person, over and over again, to make him miserable.” Id.
This is an exceedingly difficult distinction to make. Teachers and
parents are not privy to every interaction between children, and thus cannot
know the precise contours of a given situation. And, of course, biases (both
innate and developed) play a role, too. Parents of children who have been
treated poorly are, perhaps, more likely to assume the best of their child and
the worst of others—that their child has been the victim of repeated and
entirely unwarranted bullying.2 Teachers, on the other hand, have a limited
set of observations that inform their diagnosis of the situation: the quality of
a child’s schoolwork, interactions with the child’s parents, and the nature of
the child’s interaction with his fellow students, among many other things.
The ability of any given judge to diagnose a situation fares no better.
To be sure, a judge will have access to an extensive amount of documentation
on the topic—from depositions of school employees, students (both allegedly
bullies and the bullied), and parents; to disciplinary referral forms; to copies
of communications between school officials and parents.
This Court had access to all of those items, and yet still believes the
picture is somewhat unclear. Here is what the Court can say: a group of
students at St. Mary’s Springs Academy (“St. Mary’s”) repeatedly teased the
plaintiff, a minor student whom the Court will refer to as N.K. They made

2

Meanwhile, parents of the perpetrators, reluctant to view their child as a
bully, probably would see such negative actions as “kids being kids” or as a two
way street between the children.

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exceptionally rude comments about N.K.’s ethnicity, perceived sexuality, and
demeanor. The conduct lasted for several months, and caused N.K. enough
pain that his mother, Jody Lueck (also a plaintiff in this matter) made several
incursions to St. Mary’s on N.K.’s behalf. If that were the full story, the Court
would have no trouble labeling this a clear-cut case of bullying. But, as with
most everything in life, this situation is not so cut and dry, for N.K., himself,
apparently was not an entirely innocent victim. Indeed, the evidence shows
that he, too, occasionally made disparaging remarks, including racial
epithets, to certain classmates and took other aggressive actions against the
alleged bullies. Perhaps this resulted from his being fed up with several
months of bullying. Perhaps he invited some of the other students’ conduct
in a classic case of escalating hostility. Perhaps it was a little of both. In the
end, the question of “who started it?” revolves around “he said she said”
reports. Those are playground inquiries without a clear answer. Indeed,
perhaps there is no answer. Most every piece of information in this story has
been filtered through the underdeveloped but highly active minds of middle
school students before ever reaching an adult. In all likelihood, N.K. believes
he was entirely the victim, whereas the alleged bullies probably view him as
an occasional aggressor. In the end, the Court—and the parents and teachers
involved—may never actually know which is the case. Suffice it to say that,
while the Court empathizes with N.K., it is reluctant to make a definitive
determination that he was, in fact, the victim of bullying
Nor, in the final analysis, would such a definitive statement be
determinative. The Court is not required to decide, legally, whether N.K. was
bullied. Rather, the Court is called upon to answer only whether St. Mary’s
should be held liable under Title VI and Title IX of the Civil Rights Act for

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racial and gender discrimination against N.K., due to its failure to stop the
alleged bullies’ hateful actions.3
That is a very tough question, and the foregoing discussion—while
not necessary to answer the question, itself—hopefully clarifies two very
important considerations. First, the Court sympathizes with N.K.4 and all
victims of such negative behavior. The Court shares the belief that N.K. and
every other child should be able to pursue their education without the added
pressure of dealing with such negative influences. However, second, the
Court cannot make that belief a reality. Indeed, no court decision will ever
be able to end bullying. There will always be spats between children. Certain
children will always say and do nasty things to one another. Try as they
might, school officials will not be able to stop this, either, even if courts such
as this one were to begin holding schools liable when their students engaged
in reprehensible behavior. No matter how many judgments courts may hand
out, the often cruel nature of children will still prevail over newly
propagated rules and instructions.
As such, the Court views its task, here, as searching for some culpable
action on behalf of the school that could reasonably support a discrimination
claim. However, the scope of the Court’s inquiry is limited, as “[j]udges must
be sensitive to the effects on education of heavy-handed judicial intrusion
into school disciplinary issues.” Doe v. St. Francis School Dist., 694 F.3d 869,

3

N.K. alleges several other claims for relief, which the Court will discuss
later; however, the centerpiece of his argument are the Title VI and Title IX
discrimination claims.
4

The Court has extensively reviewed all of the submitted evidence, and
there is no doubt that N.K. was the subject of frequent and seemingly unwarranted
nasty behavior by his fellow students.

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873 (7th Cir. 2012). Anything more extensive would take the remarkably grey
area of assessing and addressing behavioral problems out of the hands of
those on the front lines and place it in the hands of a reviewer (the judge)
who was not present and will never be able to fully understand the dynamics
of a school situation. This is not to say that the Court believes a school can
never be liable under the theory advanced by N.K. Of course, as the Court
will discuss further, if there is evidence to establish knowledge and deliberate
indifference on the school’s behalf, then the school may very well be
liable—and rightly so. But, here, St. Mary’s simply is not so culpable, and the
Court will not expand or relax the standards to find otherwise.
Thus, for the following reasons, the Court is obliged to grant St.
Mary’s motion for summary judgment and dismiss this action.
1.

BACKGROUND
At the outset, the Court must note that there are very few facts that

the parties do not dispute in this matter. At almost every turn of N.K.’s and
Lueck’s proposed findings of fact, St. Mary’s counters with several affidavits
that directly contradict N.K.’s statements. And, N.K.’s and Lueck’s responses
to St. Mary’s proposed findings are not much different—although St. Mary’s
proposed findings and replies are typically more firmly planted in citations
to the record. Obviously, someone is not telling the truth, but the Court does
not feel it appropriate to make credibility determinations on the state of the
record. Most often, N.K.’s and Lueck’s proposed findings rely on Lueck’s
own affidavit and unclear references in the record—essentially, they are
nothing more than the sort of conclusory allegations the Seventh Circuit has
often frowned upon. See, e.g., Gobitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir.
1999). Nonetheless, the Court will try to wade through this minefield without
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discounting too many of Lueck’s facts, in an attempt to draw all reasonable
inferences in her favor, as it must. EEOC v. Target, 460 F.3d 946, 954 (7th Cir.
2006).
N.K. enrolled at St. Mary’s in the middle of his sixth grade year, in
2011. (PPFF ¶ 7). The harassment he complains of apparently did not begin
immediately; in fact, it only began to ramp up in August of 2011, when N.K.
tried out for the school’s football team. (See PPFF ¶ 8). At that time, his
teammates began a barrage of insults and insulting behavior toward N.K.
(See, e.g., PPFF ¶¶ 9–11). This included various insults referencing N.K.’s
ethnicity5 and perceived homosexuality.6 (PPFF ¶¶ 9–10).7 It also escalated
to physical touching, as certain classmates would occasionally feign sexual
acts against N.K., and perform various other classic bullying activities, from
ruffling his hair, to pushing him into lockers, to mocking the way he ate and
walked. (PPFF ¶ 11).
This intense harassment prompted Lueck to speak to two officials at
St. Mary’s—Erin Flood, an assistant principal with control over the lower

5

N.K. is of Asian descent, and so his teammates variously called him
“Mongol,” “gook,” and “Wang,” among various other racial epithets
6

N.K.’s teammates referred to his sexuality often, regularly calling him a
“fag” or “faggot,” “gay,” a “queer,” a “girl,” and a “queen”; they also made fun of
N.K. and his close male friend for being a gay couple, and directed them to make
Asian babies together.
7

While St. Mary’s disputes many of these facts, it does not point to
countervailing evidence to show that the facts are untrue. In fact, St. Mary’s only
objects to the content of the alleged statements from N.K.’s teammates. N.K. has
produced some genuine evidence to establish these facts. Therefore, the Court cites
them with approval, here, at this stage of the proceedings. However, the
defendants are certainly correct that the nature of those statements is not ultimately
a material fact.

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grades of St. Mary’s, and Bobbijo Amerling, an administrative assistant.
(PPFF ¶ 16). At that time, Lueck told both Flood and Amerling that students
had been calling N.K. various names at football practice. (PPFF ¶ 16). Flood
responded to the complaint by interviewing four students and contacting
their parents. (DPFF ¶ 82).
Apparently the school did not respond quickly enough to satisfy
Lueck, because Lueck filed a “TABB” report with the school on September
7, 2013. (PPFF ¶ 20). TABB reports are part of St. Mary’s Turning Around
Bullying Behaviors, or “TABB,” program. (DPFF ¶¶ 17–19). Both St. Mary’s
employees and also parents may file a TABB report, after which time St.
Mary’s employees—who have received training—may conduct an
investigation on the facts of the complaint. (DPFF ¶¶ 17–19). Lueck filed one
of these TABB reports, in which she indicated that N.K. was being harassed
by other students, including on Facebook. (PPFF ¶ 20). Unfortunately, Flood,
who was tasked with investigating the report, never looked into the
Facebook allegations. (PPFF ¶ 23, and Def.’s Resp. thereto).
The school did, however, arrange for a PowerPoint presentation to be
presented to N.K.’s class on September 19, 2011, which addressed the
prevention of bullying. (DPFF ¶ 19).
Unhappy with St. Mary’s response to her report, Lueck again
approached Ms. Flood later in September of 2011. (PPFF ¶ 24). This time,
Lueck reported that N.K.’s fellow students had begun calling him the name
of another student who had previously left St. Mary’s, allegedly as a result
of bullying. (PPFF ¶ 24).
Lueck also got in touch with N.K.’s football coaches and told them
about the racial comments that players were making to N.K. (PPFF ¶ 25). The

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coaching staff obviously took this report seriously, as they immediately
discussed the matter with each other through email exchanges, then
addressed the issue with the team; one coach even spoke directly with a
player who had allegedly been one of the main instigators of the insulting
behavior. (PPFF ¶ 28, 97).
Shortly thereafter,8 Lueck again met with Flood to address the issues
at football practice, and to address the fact that Lueck had gotten in touch
with N.K.’s coaches. (PPFF ¶ 29). Lueck also again brought up allegedlyoccurring Facebook harassment. (PPFF ¶ 30). Lueck asserts that Flood
refused to act on either aspect of her complaint, but fails to cite supporting
evidence in favor thereof. (Pl.’s Resp. 7).
Lueck continued to complain to Flood. She allegedly informed Flood
of continued harassment and a “hit list,” which was rumored to include
names of students who others wanted to leave school. (PPFF ¶¶ 31–32).
Flood’s actions failed to satisfy Lueck, and therefore Lueck alleges that
she began filing multiple TABB reports. (PPFF ¶ 36). In fact, she alleges that
she filled out nineteen TABB reports during the first half of November. (PPFF
¶ 36). St. Mary’s disputes that allegation, pointing to affidavits from Flood
and Amerling, who state that they do not remember receiving any TABB

8

As with much of the facts in this case, the parties dispute the precise time
of this meeting. Lueck asserts that the meeting occurred in October of 2011, while
Flood believes the meeting occurred in December of 2011. They have filed crossaffidavits on this fact (and many others). Ultimately, the precise time of the meeting
is not extremely relevant, and the Court need not resolve this dispute.

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reports from Lueck.9 (PPFF ¶ 36). These reports contained the same
allegations of mistreatment by N.K.’s classmates—bigoted insults and
occasional physical mistreatment of N.K. (PPFF ¶ 36).
Lueck then had more contact with St. Mary’s officials and teachers,
though the nature of that contact is largely disputed. She had a parentteacher conference with N.K.’s teachers on November 16, 2011. (PPFF ¶ 37).
She asserts that she told N.K.’s teachers everything that had been going on;
the teachers disagree, and stated in their depositions that Lueck was
generally positive at the conference. (PPFF ¶ 37, and Def.’s Resp. thereto).
Lueck alleges that she next contacted Flood, only to be rebuffed; Flood, of
course, denies that this conversation occurred and further denies that she
ever rebuffed Lueck. (PPFF ¶ 38, and Def.’s Resp. thereto). Lueck also asserts
that she filed more TABB reports, a fact that Flood and Amerling both
dispute. (PPFF ¶¶ 39–40, and Def.’s Resp. thereto).
Throughout this time, N.K. occasionally told his teachers that his
fellow students were calling him names or bullying him. (DPFF ¶¶ 33, 35).
These situations were all addressed, or N.K. informed the teachers that he
was joking, or the problem had abated. (DPFF ¶¶ 34, 36).

9

This allegation is like much of Lueck’s—based solely on her own
declaration. St. Mary’s has turned over many documents and seems to have been
extremely open throughout discovery, and therefore the Court has trouble
believing that St. Mary’s would fail to file or destroy TABB reports it received from
Lueck. But that is apparently what she wants us to believe, as she has not produced
any copies of these allegedly submitted reports. Perhaps she merely filled out the
reports but failed to turn them in—that is all her proposed findings refer to. But, if
that is the case, then that fact is totally irrelevant, and both Lueck and her attorney
should be aware of that fact. Nonetheless, because the Court does not view this as
a material fact, the Court will disregard the dispute.

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N.K. then had an altercation with another student on December 1,
2011. (PPFF ¶ 41). At that time, he fought with another student. (PPFF ¶ 41,
49). The parties—both N.K. and the other student—dispute the actual
sequence of events leading to this altercation, and precisely who the
aggressor was. (PPFF ¶ 49, and Def.’s Resp. thereto). Shortly after the
altercation, Flood told Lueck that she believed N.K. was responding to a
form of bullying when he fought with the other student. (PPFF ¶ 48).
Nonetheless, both N.K. and the other student received equal punishment for
their fight. (PPFF ¶ 49, and Def.’s Resp. thereto). As an aside, the Court notes
that it does not appear that Flood created a TABB report at the time of the
altercation or when Lueck reported bullying on the football team; as to the
latter, Flood reported that she believed that the coaches had addressed the
situation appropriately and that the season was done, leading her to
conclude that a TABB report was unnecessary. (PPFF ¶ 46, and Def.’s Resp.
thereto).
Lueck also claims that she requested a safety plan for N.K. shortly
after his altercation. (PPFF ¶ 50). She alleges that she asked to be allowed to
drop N.K. off late and pick him up early from school. (PPFF ¶ 51). She states
that Flood refused to accommodate this request, informing her that doing so
would result in N.K. receiving unexcused absences. (PPFF ¶ 51). Flood
disputes that this ever occurred, and also disputes that Lueck filed additional
TABB reports during the month of December.
It is clear and admitted, though, that at some point—possibly around
this time in December—Flood suggested that Lueck tell N.K. to attempt to
not react to the bullying. (PPFF ¶ 54). At the same time, she informed Lueck
that the school could not do anything without proof of the harassment or

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alleged “hit list,” and that any problems would not be fixed overnight. (PPFF
¶ 54).
Things apparently calmed down somewhat after the Christmas break.
Lueck alleges that she met with Flood or other teachers only approximately
three times between January of 2012 and March of 2012. (PPFF ¶¶ 55–57). Of
course, Lueck’s recollection of those meetings is vastly different than Flood’s.
Lueck recalls Flood suggesting that N.K. change the way he acted, advising
against N.K. seeing an outside counselor, and refusing to provide a safety
plan. (PPFF ¶¶ 55–56). Flood, on the other hand, disputes that any of those
allegations occurred. (Def.’s Resp. to PPFF ¶¶ 55–56). At a parent-teacher
conference in February of 2012, N.K.’s teachers all stated that they were not
aware of any bullying to N.K.
The apparent calm was not to last, though. On April 4, 2012, N.K.
began participating in a Facebook conversation about a group picture. (PPFF
¶ 58). The conversation quickly devolved into insults between N.K. and
several other students, most notably M.B. (PPFF ¶ 58). At this point, though,
it is very important to note the true nature of this conversation. (See Kinne
Aff., Ex. M). N.K. participated in this conversation willingly and even
aggressively insulted M.B. on numerous occasions therein. (See Kinne Aff.,
Ex. M). This is not necessarily a material fact, but it is important to note that
N.K.’s and Lueck’s recitation of the facts on this are extremely one-sided and
fail to acknowledge N.K.’s own participation in the racially derogatory
nature of the conversation.
Shortly after this Facebook incident occurred, N.K. flipped M.B.’s
desk over in class. (PPFF ¶ 62). Flood investigated the incident and
determined that N.K. should be suspended for a half day, as punishment.

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(PPFF ¶¶ 64–66). Before making that determination, though, she met with
Lueck and N.K., at which time she showed them a copy of the Facebook
discussion, with N.K.’s own contributions highlighted. (PPFF ¶ 66). Flood
explained the seriousness of N.K.’s actions, suggested that he take
accountability in front of his classmates, and informed him that further
repercussions would follow for similar behavior. (PPFF ¶¶ 67–68).
Shortly after this incident, N.K. was involved in another: he slapped
another student and pushed his head into his computer. (PPFF ¶ 71). As a
result, Flood filled out a TABB report, which she asserts was based upon the
general negative attitude of the class, and N.K. was assigned to complete a
bullying presentation with other members of the class. (PPFF ¶ 72, and Def.’s
Resp. thereto).
To address these issues, Lueck requested a joint meeting with Flood,
St. Mary’s president and priest, and another parent to discuss what she
believed were bullying problems at the school. (PPFF ¶ 70). The school held
this meeting. (PPFF ¶ 73). At some point thereafter, Lueck asked the school’s
guidance counselor about receiving a safety plan to help address N.K.’s
needs; the counselor offered Lueck a brochure for a camp designed to help
children stand up for themselves. (PPFF ¶ 73).
The school then held another meeting, on April 19, 2012, at which
many of N.K.’s fellow students and their parents were present. (PPFF ¶ 75).
The meeting did not go the way that Lueck would have liked (the parties, of
course, disagree over who is to blame for that), and she believes that the
meeting was an attack on her and N.K.. (PPFF ¶ 75).
Apparently, that was enough for her. She withdrew N.K. from school
on April 23, 2012, and demanded that St. Mary’s implement a safety plan for

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him. (PPFF ¶¶ 76–77, 80). St. Mary’s refused to do so, and when Lueck did
not return N.K. to school, St. Mary’s threatened and ultimately filed a
truancy complaint against Lueck, which were ultimately dismissed because
Lueck registered to homeschool N.K. (PPFF ¶ 77–81, 88).
Lueck then brought this case against St. Mary’s. The parties engaged
in discovery and the matter is now before the Court on St. Mary’s motion for
summary judgment.
2.

DISCUSSION
The Court should grant summary judgment here, if it finds that there

is no genuine dispute as to any material fact and that St. Mary’s is entitled to
judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must
consider whether to do so on a number of claims. First, and most
importantly, it must address the plaintiffs’ Title VI and Title IX claims, which
it will address together. If it finds that either the Title VI or Title IX claims
should survive dismissal, then it must address the plaintiffs’ state law claims.
(Pl.’s Resp. 28). If, however, it dismisses those claims, then it need not rule
upon them. (Pl.’s Resp. 28). Finding the latter, as the Court discusses later, it
will dismiss those claims without ruling upon them. Finally, the Court will
also dismiss the plaintiffs’ punitive damages claims, as they assent to that
dismissal. The Court now turns to the substance of St. Mary’s motion for
summary judgment as it relates to the plaintiffs’ Title VI and Title IX claims.
2.1

Title VI and Title IX Discrimination Claims

Both Title VI and Title IX are targeted toward recipients of federal
funds. Parker v. Franklin Cty. Community School Corp., 66 F.3d 910, 917 (7th
Cir. 2012). Title VI prohibits racial discrimination by such recipients, while
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Title IX prohibits discrimination on the basis of gender. Id. The Supreme
Court has interpreted both laws to imply a private right of action entitling a
successful plaintiff to damages. See, e.g., Cannon v. University of Chicago, 441
U.S. 677, 717 (1979); Franklin v. Gwinnett Cty. Public Schools, 503 U.S. 60, 76
(1992); Grove City College v. Bell, 465 U.S. 555 (1984). The Seventh Circuit has
also recognized the similarities between the two claims, noting that the two
“operate in the same manner.” See, e.g., Doe v. Smith, 470 F.3d 331, 338 (citing
Cannon, 441 U.S. at 684–85), abrogated on other grounds as recognized by
Trentadue v. Redmon, 619 F.3d 648 (7th Cir. 2010).
Generally, to prevail on a claim for hostile educational environment
under Title VI or Title IX, as the plaintiffs are putting forth, here, they must
show that the student participated in a federally-funded program that was
so pervasively hostile to the student’s race or gender that he was deprived
of access to the educational benefits of the program. See, e.g., Qualls v.
Cunningham, 183 Fed. Appx. 564, 567 (“To establish a hostile educational
environment under Title VI, Qualls must show that the alleged harassment
was severe or pervasive enough to deprive him of access to educational
benefits.”). Here, where the plaintiffs are suing a school under what is
essentially a respondeat superior theory, they must also prove that an official
of the school had “actual knowledge” of, and was “deliberately indifferent
to,” the conduct in question. See, e.g., Doe v. St. Francis School Dist., 694 F.3d
869, 871 (citing Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 285
(1998)); Doe v. McLean Cty. Unit Dist. No. 5 Bd. of Directors, 593 F.3d 507, 512
(7th Cir. 2010); Hansen v. Bd. of Trustees, 551 F.3d 599, 605 (7th Cir. 2008);
J.F.K. v. Troup Cty. School Dist., 678 F.3d 1254, 1260 (11th Cir. 2012)).

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The Court views these requirements as essentially three separate
elements: (1) program acceptance of federal funding; (2) pervasive hostility
to race or gender in the program; and (3) actual notice and deliberate
indifference on behalf of the school district. It will address each separately,
below.
2.1.1

St. Mary’s Acceptance of Federal Funds

St. Mary’s does not dispute that it accepts federal money. (PPFF ¶ 90,
and Def.’s Resp. thereto). Therefore, the Court will accept the fact as true,
and find that this requirement is satisfied.
2.1.2

Pervasive Race- or Gender-Based Hostility

To find that race- or gender-based hostility is actionable, the Court
must first find that the hostility is “‘so severe, pervasive, and objectively
offensive’ that it has a ‘concrete, negative effect,’ on the victim’s access to
education.” Gabrielle M. v. Park Forest-Chicago Heights, IL, School Dist., 315 F.3d
817, 821 (7th Cir. 2003) (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
633 (1999)). The Seventh Circuit, however, has acknowledged that there is a
threshold question in these cases of whether the alleged hostility was, in fact,
based upon race or gender. See, e.g., Gabrielle M., 315 F.3d at 821 (“There is a
threshold question, altogether reasonable and rational, of whether a five or
six year old kindergartner can ever engage in conduct constituting ‘sexual
harassment’ or ‘gender discrimination’ under Title IX.”) This is likely based
upon the Supreme Court’s recognition in Davis that children “regularly
interact in a manner that would be unacceptable among adults,” leading
some students to “engage in insults, banter, teasing, shoving, pushing and
gender-specific conduct that is upsetting to the student subjected to it.” 526
U.S. at 651–52. This has led at least one district court in this circuit and others
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from other circuits to examine whether the harassers were actually motivated
by personal animus, instead of one’s protected class. See, e.g., Vidovic v.
Mentor City School Dist., 2013 WL 395263, at *17 (N.D. Ohio January 31, 2013);
Burwell v. Pekin Community High School Dist. 303, 213 F. Supp. 2d 917, 930–31
(C.D. Ill. 2002).
St. Mary’s urges this Court to take the same approach, but the Court
does not believe it is appropriate, here. To begin, it is an extremely slippery
slope to attempt to divine whether the harassers’ intentions were based upon
race or gender hostility or something more personal—particularly at the
summary judgment stage. Moreover, the racial epithets and gender-based
insults used here were extremely specific, going precisely to N.K.’s personal
characteristics. This is strong evidence that the harassers were motivated, at
least in part, by N.K.’s race and gender. Granted, this is a very difficult
determination to make—and, if this case were to proceed to trial, it would
likely be an issue over which the parties could present evidence. It is nearly
impossible to know what transpired in the heads of N.K.’s harassers and, for
that reason, it would be particularly inappropriate to grant summary
judgment on that basis.
The next question the Court must answer goes to whether the hostility
was based upon N.K.’s race or gender. Quite clearly, some of the comments
were directed at N.K.’s race, and would therefore be actionable under Title
VI if they had the requisite negative effect upon him. On the other hand, the
offensive comments related to his gender are much more difficult to place
within Title IX’s protections. More specifically, the gender-based comments
derived primarily from N.K.’s perceived homosexuality and effeminacy.
Certain of the students testified that names like “fag” or “faggot” were not

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used to actually mean homosexual, but are generally used terms, potentially
taking them outside of the realm of hostility based on N.K.’s perceived
homosexuality. Nonetheless, the Seventh Circuit and other courts have
recognized that discrimination based upon one’s failure to conform to
stereotypical gender ideals may result in a finding of gender discrimination.
See, e.g., Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1064 (7th Cir.
2003); Doe v. Brimfield Grade School, 552 F. Supp. 2d 816, 823 (C.D. Ill. 2008);
Howell v. North Central College, 320 F. Supp. 2d 717, 720 (N.D. Ill. 2004); Theno
v. Tonganoxie Unified School Dist., 377 F. Supp. 2d 952, 964 (D. Kansas 2005).
As such, given that much of the harassers’ rhetoric seems to have been based
upon N.K.’s failure to conform to gender stereotypes, the Court believes it
would be inappropriate to dismiss the Title IX claims on that basis at this
time.
The final question the Court must address in this regard is whether
the harassment was so pervasive as to have a “concrete, negative effect” on
N.K.’s access to education. Davis, 526 U.S. at 633. St. Mary’s argues that the
alleged harassment did not impact N.K.’s grades negatively and, therefore,
did not have the requisite negative effect. The Court sees this as much more
of an issue for trial; it could be that, while N.K. succeeded in school, he
perhaps could have excelled were it not for the alleged harassment. Moreover,
Lueck ultimately determined that the environment was so hostile that she
removed him from school—perhaps that was her choice, but if evidence at
trial were to establish its necessity, then the Court believes that a rational
finder of fact could determine that the harassment had a concrete, negative
effect on N.K.’s education.

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For all of these reasons, summary judgment would be inappropriate
on the basis of the grounds mentioned above.
2.1.3

Actual Knowledge and Deliberate Indifference

As such, the Court next turns to examine whether St. Mary’s had
actual knowledge of the alleged harassment and were deliberately indifferent
to it. E.g., St. Francis, 694 F.3d at 871. This is because a school cannot be held
vicariously liable. Id.
On the actual knowledge requirement, the Seventh Circuit has made
clear that school officials must have “actual knowledge of misconduct, not
just actual knowledge of the risk of misconduct.” Id. (quoting Hansen, 551
F.3d at 605; J.F.K., 678 F.3d at 1260). Recently, the Seventh Circuit found that
this was not satisfied where school officials and fellow teachers had felt that
a teacher who eventually assaulted a student treated her victim in a
potentially inappropriate way. St. Francis, 694 F.3d at 872–73. The officials
there knew the offending teacher treated her relationship with the student
“like a crush.” But, they did not know that any actual sexual harassment had
occurred, leading the Seventh Circuit to conclude the district lacked actual
knowledge.
The situation is slightly different—and slightly more egregious—here.
St. Mary’s argues that its officials and teacher did not have any actual,
firsthand knowledge that students were harassing N.K. using language
based upon his ethnicity and perceived sexual orientation. And, to an extent,
they are correct. Indeed, there is no evidence that any teacher or official had
ever witnessed the use of these terms. However, Lueck’s and N.K.’s reports
of the use of terms is much more concrete than the vague statements
provided about the teacher in St. Francis. There, fellow teachers and officials
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had only a general sense that the offending teacher was acting
inappropriately. Here, on the other hand, Lueck and N.K. actually reported
firsthand occurrences of racial- and sexuality-based hostility. Given that,
particularly in middle school and high school, students will be aware enough
to hide their bigoted language from authority figures, the Court believes that
these firsthand reports were likely enough to create actual knowledge on St.
Mary’s behalf.
However, even if St. Mary’s had that requisite knowledge, it did not
act with deliberate indifference, and therefore the Title VI and Title IX claims
against it must be dismissed. Davis made clear that deliberate indifference is
a high bar for plaintiffs to clear: it exists “only where the recipient’s response
to the harassment or lack thereof is clearly unreasonable in light of the
known circumstances.” 526 U.S. at 648. This “does [not] require funding
recipients to remedy peer harassment” or punish every allegedly offending
student. Gabrielle M., 315 F.3d at 825. Moreover, as earlier noted, the Seventh
Circuit recognizes that “[j]udges must be sensitive to the effects on education
of heavy-handed judicial intrusion into school disciplinary issues.” St.
Francis, 694 F.3d at 873.
St. Mary’s actions were not “clearly unreasonable” and certainly did
not rise to the level of deliberate indifference. It is clear from the record that
St. Mary’s officials investigated incidents after they were reported, spoke
with students, and held conferences with parents and teachers, all regarding
Lueck’s and N.K.’s reports of bullying. They also provided their students and
teachers with lessons and training on bullying prevention. Thus St. Mary’s
took regular and positive action to address the situation. In the Court’s eyes
that is eminently reasonable.
Page 19 of 23

Lueck insists that she filed 40 TABB reports, but cannot establish
evidence of a single one. This makes Lueck’s assertions highly questionable.
Moreover, regardless of that huge number of reports, the question is whether
St. Mary’s actions were “clearly unreasonable.” Assuming that she actually
did file the complaints, Lueck likely did not inspire confidence as a reasonable
source by doing so, thus further justifying—if only in Lueck’s mind’s
eye—any perceived inaction on St. Mary’s behalf.
Finally, N.K.’s own actions—brushing off his own reports of bullying
(DPFF ¶ 36) and using derogatory language against other students (DPFF
¶¶ 55–56)—would have justified any tendency on St. Mary’s behalf to treat
this situation as one of “kids being kids.”
Holding that St. Mary’s was not deliberately indifferent is also
squarely in line with past Seventh Circuit decisions. In Hendrichsen v. Ball
State University, the Seventh Circuit held that the University was not
deliberately indifferent to sexual harassment by one of its teachers when it
revealed the victim’s identity to the teacher, failed to interview certain
witnesses, and did not take extremely swift action against the teacher. 107
Fed. Appx. 680, 685 (2004). In doing so, it particularly faulted the plaintiff for
failing to explain why “what the university did do—promptly investigating
the situation as soon as she told them about it,” and warning the teacher,
should have been considered clearly unreasonable. Id. (emphasis in original).
The Court is faced with much the same case here—the plaintiffs argue that
St. Mary’s should have taken certain additional steps, but fail to make a
persuasive argument as to why the steps that were taken were
“clearly unreasonable.” And, while certainly summary judgment should be
precluded where the school made no effort to stop harassment, see Davis, 526
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U.S. at 654; Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1243 (10th
Cir.1999), that is certainly not the case here, where the evidence amply
demonstrates that St. Mary’s took steps that were both appropriate and
reasonable under the circumstances to stop the harassment. St. Mary’s has
some level of flexibility to address student conduct—it is not required to take
disciplinary action against every student accused of misconduct, for instance.
Gabrielle M., 315 F.3d at 825 (“Davis disapproved of a standard that would
force funding recipients to suspend or expel every student accused of
misconduct.”); see also Davis, 526 U.S. at 648.
Moreover, the Court must remain cognizant of the fact that it may
only look to instances where St. Mary’s had at least actual notice of the
incidents to determine that they were deliberately indifferent to those
incidents. Gabrielle M., 315 F.3d at 823–24 (“Courts, therefore, have focused
on reports or observations in the record of inappropriate behavior to
determine when school officials had actual notice.”). Here, after practically
every report or observed incident, the school followed up in some way,
either by investigating the occurrence or by punishing involved students.
Accordingly, it is clear that St. Mary’s was not deliberately indifferent to
those occurrences about which it had actual notice. Deliberate indifference
is an element of a Title VI claim, and therefore the plaintiffs have the burden
of establishing competent evidence of that fact. See Smith v. Severn, 129 F.3d
419, 427 (7th Cir. 1997). The plaintiffs failed to establish that evidence—in
reality relying almost entirely upon Ms. Lueck’s own self-serving statements
in a declaration—and, therefore, the Court is obliged to dismiss this action
on its merits.

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For all of these reasons, the Court must conclude that St. Mary’s did
not act with deliberate indifference. Therefore, it must grant St. Mary’s
motion for summary judgment on the Title VI and Title IX claims.
Furthermore, though the plaintiffs did not brief these issues extensively, both
parties have made passing reference to certain of plaintiffs’ claims, which
derive from allegations of discrimination based upon both religion and
financial status. To the extent that plaintiff asserted those claims, they too
must be dismissed, as they were based upon Title VI and Title IX, and the
Court has held that such claims will not lie due to the lack of deliberate
indifference.
2.2

Dismissal of Punitive Damages and State Law Claims

The plaintiffs have assented to have their punitive damages claims
dismissed. Furthermore, because the Court will grant summary judgment on
the Title VI and Title IX claims, it lacks jurisdiction over the state law
claims—as this is not an action based upon diversity—and will, therefore,
dismiss those claims without addressing their merits.
3.

CONCLUSION
For the foregoing reasons, the Court will grant St. Mary’s motion for

summary judgment. It will also dismiss the plaintiffs’ state law claims for
lack of jurisdiction.
Accordingly,
IT IS ORDERED that St. Mary’s motion for summary judgment
(Docket #19), be and the same is hereby GRANTED in part, insofar as it
relates to the plaintiffs’ Title VI, Title IX, and punitive damages claims, and
DENIED in part, insofar as it relates to the plaintiffs’ state law claims;

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IT IS FURTHER ORDERED that the plaintiffs’ state law claims be
and the same are hereby DISMISSED for lack of jurisdiction; and
IT IS FURTHER ORDERED that, all claims in this matter having been
disposed, this matter be and the same is hereby DISMISSED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 16th day of August, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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