United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
Connor Bowe is a young man with Asperger's Syndrome who
attended defendant Eau Claire Area School District. He brings
suit against the District and two of its principals,
defendants David Oldenberg and Tim O'Reilly, alleging
that they were deliberately indifferent to the harassment and
bullying that he suffered as a student.
move for summary judgment. Dkt. 26. There is no dispute that
Connor was severely bullied by his classmates throughout
middle and high school and that defendants' efforts
failed to stop the bullying. The facts of this case are
deeply disturbing, and what happened to Conner at the hands
of many of his classmates was shameful. But under the legal
standard applicable to this case, defendants are liable only
if they were deliberately indifferent to Connor's plight.
Applying this standard to the undisputed facts, the court
concludes that defendants' responses were not clearly
unreasonable, and they are entitled to summary judgment.
following facts are material and, except where noted,
Tim O'Reilly is the principal of DeLong Middle School;
defendant David Oldenberg is the principal of Memorial High
School. Both schools are within defendant Eau Claire Area
School District. Plaintiff Connor Bowe attended these schools
as a student from 2008 until his graduation in 2015.
(whom the court will refer to by first name to distinguish
from his parents, Pegi and Glen Bowe) was diagnosed with
Asperger's Syndrome as a young child. He was the victim
of bullying in middle and high school. For example, his
fellow students called Connor “gay, ”
“queer, ” “fag, ” “pussy,
” “douche bag, ” and “shit stain,
” Dkt. 53, ¶¶ 30, 37, 77; put gum in his
hair; threatened to kill his family; told him to “go
fucking die, ” id. ¶ 82; left a bag of
feces at his house; and egged his house.
Connor's tenure as a student in the District, Connor and
his parents complained of more than 30 discrete acts of
bullying. Defendants investigated each complaint, which
generally involved interviewing the students involved, and
sometimes the investigation included referring the matter to
the police or speaking to the classroom teacher. If the
investigation uncovered “inappropriate action, ”
defendants “would respond with . . . calls home or . .
. corrective action plans.” Dkt. 40 (O'Reilly Dep.
23:10-12). The “corrective action” ranged from
“counseling” the student, to suspension, and in
some cases referral for criminal charges.
relatively modest example of bullying that Connor contends
was not appropriately redressed occurred in eighth grade gym
class. Connor “got very upset” when he played
goalie and his fellow students “had decided they
weren't going to let him out” of the goalie
position. Dkt. 39 (Pegi Bowe Dep. 36:17-20). In response,
Pegi and Glen met with the gym teacher, O'Reilly, and
Connor's speech and language pathologist and agreed that
“[i]f [Connor] wanted to be goalie, that was fine, but
he had to have a way out.” Id. at 37:2-3. Pegi
and Glen “suggested . . . that he not be goalie
again.” Id. at 37:3-4. Within “a couple
of days, ” Connor played goalie again. Id. at
examples highlight the range of defendants' responses,
which often focused on counseling the students involved. When
Connor got into a fight with a middle school student,
O'Reilly referred the incident to the police, who
investigated and determined that the fight began when Connor
“said something derogatory to the other student”
and then threw the student's notebook. Dkt. 54, ¶
25. Connor acknowledges that he sometimes acted as the
aggressor. See, e.g., id. ¶¶
105-10 (listing Connor's acts precipitating points of
“conflict, ” which included calling other
students “faggot, ” “whore, ”
“homo, ” “queer, ” and “lard
ass” and threatening to “shove a hockey stick up
[a student's] ass, ” “fuck [a student's]
mother, ” and “beat [a student] until his face
was unrecognizable”). According to Connor, his
“improper behavior towards others is the result of the
bullying leveled against him.” Dkt. 53, ¶ 116.
Connor and the other student were both suspended from school.
When they returned, O'Reilly met with them to discuss
respectful behavior and asked the school police liaison to
“innocuously supervise Connor in the halls between
classes to observe if any inappropriate or bullying behavior
was being directed at Connor by other students.”
Id. ¶ 29.
a couple of other examples, when Pegi and Glen reported that
a high school student called Connor a “shit stain,
” Oldenberg investigated, determined that “Connor
instigated the comment by saying inappropriate comments to
the other student, ” talked to the other student and
his parents, and explained, in a meeting with Connor and the
other student, that they should not call each other names.
Id. ¶ 74. After the meeting, “there were
no more issues with that student.” Id. When
Pegi and Glen reported that another high school student told
Connor to “go fucking die, ” the school
investigated but could not confirm that the incident
occurred. Id. ¶ 75. A month later, Oldenberg
set up a mediation between Connor, a student who made a
“death threat, ” and their parents. Id.
¶ 76. (It's unclear whether this is the same student
who said “go fucking die” or another student.)
“There were no more substantive issues between Connor
and this boy following the mediation.” Id.
bullying culminated in two acts that took place outside of
school. In November 2013, during Connor's junior year of
high school, Pegi and Glen told Oldenberg that someone left a
bag of feces at their house and, weeks later, that their
house had been egged. Oldenberg met Pegi and Glen at a gas
station to view surveillance video of several boys buying
eggs shortly before the egging took place and helped to
identify one of the boys. He instructed teachers to pay
attention to students' conversations to try to track down
the other eggers. And he helped the school police liaison
investigate and interview the eggers, several of whom
admitted to leaving the bag of feces, too. In addition to
out-of-school consequences (criminal charges and a civil
suit), the perpetrators faced in-school consequences:
Oldenberg met with each of their parents, temporarily
suspended them from athletics and other extracurricular
activities, and required them each to read a book on
bullying, write a report, and meet with him to discuss the
book “as a strategy for addressing their
behavior.” Id. ¶ 89. After this, neither
Connor nor his parents reported any further bullying,
although Connor contends that the bullying continued
throughout his time in the District.
move for summary judgment on Connor's claims against the
District under the Americans with Disabilities Act (ADA), the
Rehabilitation Act (RA), and Title IX, and Connor's
claims against Oldenberg and O'Reilly under the Equal
Protection Clause. Summary judgment is appropriate if the
moving party “shows that there is no genuine dispute as
to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). To avoid summary
judgment, the opposing party “must set forth specific
facts showing that there is a genuine issue for trial.”
Id. A party may not simply rely on the allegations
in its ...