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Bowe v. Eau Claire Area School District

United States District Court, W.D. Wisconsin

February 7, 2018

CONNOR BOWE, Plaintiff,

          OPINION & ORDER


         Plaintiff 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.

         Defendants 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.


         The following facts are material and, except where noted, undisputed.

         Defendant 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.

         Connor (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.

         During 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.

         One 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 37:10-11.

         Other 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.

         To cite 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.

         The 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.


         Defendants 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 ...

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