Minor v. St. Mary's Springs Acad. of Fond Du Lac Wis., Inc.

• Decision Date: 16 August 2013
• Docket Number: Case No. 12–CV–1052–JPS.
• Citation: 965 F.Supp.2d 1025
• Parties: N.K. (a minor) and Jody Lueck, Plaintiffs, v. ST. MARY'S SPRINGS ACADEMY OF FOND DU LAC WISCONSIN, INC., Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

965 F.Supp.2d 1025

N.K. (a minor) and Jody Lueck, Plaintiffs,

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

Case No. 12–CV–1052–JPS.

United States District Court,

E.D. Wisconsin.

Aug. 16, 2013.

Paul A. Kinne, Robert J. Gingras, Gingras Cates & Luebke SC, Madison, WI, for Plaintiffs.

Jeffrey T. Nichols, Samuel C. Hall, Jr., Crivello Carlson SC, Milwaukee, WI, for Defendant.

ORDER

J.P. STADTMUELLER, District Judge.

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/ defining bullying- down. html. One must be careful not to label as bullying every single instance of spiteful conduct between children. Rather, as the bullying scholar 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 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 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, 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., Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir.1999). Nonetheless, the Court will try to wade through this minefield without 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 ethnicity ⁵ 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 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...