Baumgardt v. Wausau School Dist. Bd. of Educ.

• Decision Date: 26 February 2007
• Docket Number: No. 06-C-487-C.,06-C-487-C.
• Citation: 475 F.Supp.2d 800
• Parties: N.B., Robin BAUMGARDT and Mark Baumgardt, Plaintiffs, v. WAUSAU SCHOOL DISTRICT BOARD OF EDUCATION, Paul Brusky, Mitchell King, Pamela Huston, State Farm Mutual Automobile Insurance Company, The Boller Group, Inc. and Marathon Savings Bank, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

475 F.Supp.2d 800

N.B., Robin BAUMGARDT and Mark Baumgardt, Plaintiffs, v. WAUSAU SCHOOL DISTRICT BOARD OF EDUCATION, Paul Brusky, Mitchell King, Pamela Huston, State Farm Mutual Automobile Insurance Company, The Boller Group, Inc. and Marathon Savings Bank, Defendants.

No. 06-C-487-C.

United States District Court, W.D. Wisconsin.

February 26, 2007.

Lawrence G. Albrecht, First, Albrecht & Blondis, S.C., Milwaukee, WI, for Plaintiffs Mark Baumgardt, Robin Baumgardt and N.B.

Nathan Fishbach, Lisa M. Arent, Whyte Hirschboeck Dudek S.C., Milwaukee, WI, for Defendants Wausau School District Board of Education, Paul Brusky and Pamela Huston.

John M. Moore, Bell, Gierhart & Moore, S.C., Madison, WI, Michele M. Ford, Crivello, Carlson & Mentkowski, Milwaukee, WI, for Defendant Mitchell King.

Claude Covelli, Boardman, Suhr, Curry & Field, Madison, WI, for Defendant State Farm Mutual Automobile Insurance Company.

Lori M. Lubinsky, Axley Brynelson, Madison, WI, for Defendant Community Insurance Corp. (Intervenor).

OPINION AND ORDER

CRABB, District Judge.

Plaintiff N.B. was sexually assaulted numerous times by defendant Mitchell King, her high school basketball and golf coach, over the course of several months in 2004. In this action for damages brought under 42 U.S.C. § 1983, 20 U.S.C. § 1681 (Title IX of the Education Amendments of 1972) and state law, plaintiff N.B. and her parents allege that the principal, the athletic director and various members of the school board knew about King's abuse, but failed to report it or otherwise prevent it from continuing, in violation of the due process and equal protection clauses of the Constitution and Title IX, which prohibits sex discrimination in education. In addition, plaintiffs assert a negligence claim under state law.

Defendants Paul Brusky (the principal), Pamela Huston (the athletic director) and Wausau School District Board of Education have moved to dismiss plaintiff's constitutional claims as preempted by Title IX and her negligence claim as barred by the doctrine of governmental immunity. (Because Brusky, Huston and the school board are the only three defendants implicated by this motion, I will refer to them collectively as "defendants" for the remainder of the opinion.) Defendants also seek dismissal of a state law statutory claim, but this part of the motion will be denied as unnecessary because plaintiffs have explained in their brief that they did not intend to bring such a claim.

Plaintiffs amended their complaint after defendants filed their motion to dismiss triggering a new motion to dismiss by defendants. However, briefing on the new motion is unnecessary because none of the changes made in the amended complaint affect the analysis of the issues raised in the first motion. Although plaintiffs added a new party (defendant Huston), she is in precisely the same position as defendant Brusky with respect to each of the claims at issue in the motion.

Defendants' motion will be granted with respect to plaintiffs' constitutional claims. Although plaintiffs make a persuasive argument that Title IX does not preempt claims other than those relating to sex discrimination, a contrary conclusion is required by Doe v. Smith, 470 F.3d 331 (7th Cir.2006), in which the court of appeals dismissed both equal protection and due process claims as preempted by Title IX. Accordingly, I must dismiss all of plaintiffs' claims against defendants Brusky, Huston and the school board that were brought pursuant to 42 U.S.C. § 1983.

Defendants' motion will be denied with respect to plaintiffs' negligence claim. Public officials in Wisconsin are not immune from suit when they disregard a "ministerial" duty or a "known danger." Plaintiffs have alleged that defendants knew plaintiff N.B. was being abused by defendant King. At the pleading stage, this is sufficient to show that defendants had a ministerial duty to comply with the child abuse reporting requirements of Wis. Stat. § 48.981 or to take some other action to protect plaintiff from the known danger of further abuse.

Plaintiffs allege the following facts in their amended complaint.

ALLEGATIONS OF FACT

In September 2003, plaintiff N.B. was a fourteen-year old freshman at Wausau West High School. Defendant Mitchell King, an employee of defendant Wausau School District Board of Education, was N.B.'s basketball and golf coach. N.B. was the sole female on the golf team.

In early 2004, King began telling N.B. that he had "sexual feelings" for her. Around the same time, the principal of the school, defendant Paul Brusky, expressed his concerns to defendant King that King was spending too much time with the female basketball players and exhibiting favoritism.

In March 2004, defendant King's sexual harassment of N.B. became more severe. After cupping her buttocks with his hand at a basketball game, he began calling her on the telephone and sending her text messages and emailing her, to tell her that he loved her and wanted to be with her. Later in the month, he rubbed her leg and kissed her cheek and neck while they were in his car.

In April 2004, King sexually assaulted N.B. twice before driving her home from golf practice. In one instance, he performed oral sex on her; in both instances he penetrated N.B. with his finger. During this same month, defendant Brusky met with King to discuss his "inappropriate" relationship with N.B.

King's sexual assaults and harassment of N.B. continued and worsened for several months. He sent her more graphic sexual messages. In May, the team stayed at a hotel for an overnight golf outing. King booked himself and N.B. in adjoining rooms in a separate wing from the remainder of the team. The school board was aware of these arrangements. That night, King raped N.B.

King sexually assaulted N.B. at least three other times in May and June: once in N.B.'s house and two other times before driving N.B. home from golf practice. After June, King kissed and inappropriately touched N.B. on dozens of other occasions while on school premises, sometimes in public.

In July, the school board president saw defendant King acting "flirtatious[ly]" and "inappropriately" with plaintiff N.B. The president informed several school officials, including defendant Pamela Huston, who was the athletic director of Wausau West High School and the direct supervisor of defendant King.

In August, defendant Brusky met again with King to discuss his relationship with N.B. Brusky told Huston that he had received information about an "inappropriate relationship" between King and N.B.

In late 2004, N.B.'s family discovered the abuse and reported defendant King's actions to the police, after which he was charged with sexually assaulting N.B. He later pleaded guilty to the charge.

Members of the school board, defendant Brusky and defendant Huston were aware that defendant King was sexually harassing N.B. Neither Brusky, Huston nor the other school board members investigated King's misconduct, informed the school's Title IX representative or reported King to county or state authorities.

The school board failed to train its employees about mandatory reporting requirements and procedures for suspecting child abuse and sexual harassment. It authorized defendant King to be alone while on school premises and at school-sponsored events.

OPINION

A. Constitutional Claims: Title IX Preemption

Plaintiffs bring their Title IX claim against the school board and their equal protection and due process claims against all of the defendants (other than the insurance companies). Because the Constitution is not self-enforcing, plaintiffs seek to raise their constitutional claims pursuant to 42 U.S.C. § 1983.

Enacted in 1871, § 1983 creates a cause of action for damages against any "person" who violates another's federally protected rights while acting "under color of law." In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983 may be used to enforce not only constitutional rights but federal statutory rights as well, suggesting that § 1983 could authorize a lawsuit for almost any violation of federal law. To curb the potentially limitless scope of Thiboutot, the Supreme Court has developed a number of doctrines that restrict reliance on § 1983 even in cases in which it would literally apply. E.g., Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (federal statute cannot be enforced through § 1983 unless Congress intended to create private right of action).

One of these doctrines was set forth in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981): "When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." In other words, if a plaintiff can obtain "comprehensive" relief under another statute, the court may assume that Congress did not intend to permit a parallel suit under § 1983. However, the question in Sea Clammers was a limited one: whether a plaintiff could bring a § 1983 action to enforce another statute that had its own enforcement mechanism, in that case the Clean Water Act and the Marine Protection, Research and Sanctuaries Act of 1972. Thus, under one interpretation, Sea Clammers simply recognizes that when Congress creates an express remedy for a violation of a statute, plaintiffs must respect the mechanism for enforcement Congress established rather than circumvent it by trying to enforce the statute under § 1983.

In one instance, the Court extended the Sea Clammers rule to preempt § 1983 constitutional claims that cover the same ground as a federal statute. Smith v. Robinson, 468 U.S. 992, 1011-12, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984) (disability discrimination claim under equal protection clause preempted by...