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Doe v. Galster

United States Court of Appeals, Seventh Circuit

September 19, 2014

JANE DOE, a minor, Plaintiff-Appellant,
v.
DON GALSTER, et al., Defendants-Appellees

Argued February 10, 2014

Page 612

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 09-CV-1089--Patricia J. Gorence, Magistrate Judge.

For JANE DOE, a Minor, Plaintiff - Appellant: Jeff Scott Olson, Attorney, Madison, WI.

For Don Galster, Elmbrook School District, Matthew W. Gibson, Defendant - Appellee: Jeffrey A. Schmeckpeper, Attorney, Kasdorf, Lewis & Swietlik, Milwaukee, WI.

Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and KENDALL, District Judge.[*]

OPINION

Page 613

Hamilton, Circuit Judge.

Plaintiff " Jane Doe" was born in Russia and came to the United States at the age of two when she was adopted by American parents. During her sixth and seventh grade years at Elmbrook School District's Pilgrim Park Middle School, several male classmates bullied her, sometimes hurling gendered or ethnic insults. The bullying turned violent near the end of seventh grade. Three boys were eventually charged with criminal battery and were expelled or withdrew from school.

Doe filed this suit against the Elmbrook School District and several school administrators under Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. She alleges that the bullying was motivated by her sex and ethnicity and that the school was legally responsible for it. Based on the same allegations, Doe also asserts a claim under 42 U.S.C. § 1983 for violations of the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment for the defendants, and Doe has appealed.

We affirm. Although Doe's classmates' actions were inexcusable, the undisputed evidence shows that the defendants are not legally responsible for those actions. Keeping in mind how thoughtless and even cruel children can be to one another, the Supreme Court has interpreted both Title VI and Title IX to impose a demanding standard for holding schools and school officials legally responsible for one student's mistreatment of another. School officials must have had " actual knowledge"

Page 614

of harassment " so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis v. Monroe County Board of Education, 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). To have actual knowledge of an incident, school officials must have witnessed it or received a report of it. Gabrielle M. v. Park Forest-Chicago Heights, Illinois School Dist. 163, 315 F.3d 817, 823-24 (7th Cir. 2003). To impose liability, school officials' response to known harassment also must have been " clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648.

In this case--even assuming Doe's harassers were motivated by her sex or ethnicity--once the defendants gained actual notice of behavior that could qualify as severe and pervasive, they took action against the wrongdoers that fell well within their broad discretion. In other words, the defendants were not deliberately indifferent to the harassment of Doe. That conclusion also defeats Doe's equal protection claim.

I. Factual and Procedural Background

Most of Doe's problems at school involved her classmate T.M. and two of his friends. Doe argues that school officials did not do enough to prevent the boys from harming her. Because we are reviewing a grant of summary judgment, we present the evidence in the light most favorable to Doe, the nonmoving party, giving her the benefit of conflicts in the evidence and reasonable inferences that might be drawn from it. See Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008).

T.M. and his friends began harassing Doe in sixth grade, though none of the harassment during that year was so severe or pervasive as to implicate Title VI or Title IX. Some of the incidents were witnessed by school officials or reported to an official by Doe. For example, T.M. erased some of Doe's schoolwork from a computer (she responded in kind), and he threw a ball at her in gym class. Teachers admonished T.M. not to do those things again. T.M. and a friend, J.Q., also called Doe " bitch" and " whore" on more than one occasion. Doe discussed this name-calling with Ms. Lakatos, a guidance counselor.

The harassment continued in the second semester of seventh grade. Initially, the incidents were similar to those from the previous year. One day T.M. opened Doe's binder and let the papers fall to the floor. A teacher saw this and told T.M. to help Doe pick the papers up. Another teacher intervened when M.C., one of T.M.'s friends, came into Doe's classroom and knocked papers off her desk. Also, the band director noticed Doe and T.M. pushing each other in band class one day and ordered both to serve a period of detention.

During that same semester, Doe and T.M. engaged in insults and name-calling. According to Doe, she once said something to upset T.M., and he replied by saying, " you're a stupid Russian." Doe and T.M. would also call each other " bitch" from time to time. Doe does not recall reporting these incidents to anyone and does not know whether any school official knew about them. She did report to Lakatos, whom she had continued to see regularly, that she was having trouble generally with T.M.

School administrators, knowing that Doe and T.M. did not get along, took steps to keep them apart. Sometime in March of their seventh grade year, Associate Principal Hinz had Doe and T.M. sign an agreement that they would stay away from each other. She also assigned them to different

Page 615

" Homework Club Rooms" and separated their lockers, which had been only two or three lockers apart.

Doe reported other specific incidents of harassment that did not involve T.M. or his friends to her mother and Lakatos, but she gave them conflicting accounts. In an email to Lakatos, Doe's mother explained that Doe told her that a boy had punched her in the stomach and had been suspended as a result, and that other children had harassed Doe on the bus for being Russian. Lakatos responded after speaking to Doe and school employees. Lakatos explained that no one had been suspended for punching Doe and that no school employee knew anything about a punch. Doe had told Lakatos that the punch was not hard and was meant for someone else. She had declined to tell Lakatos who harassed her on the bus, explaining that she wanted to put the issue behind her.

Lakatos encouraged Doe to report harassment and told her that any student who retaliated against her for making a report would be punished. Following the email exchange between Doe's mother and Lakatos, Doe sent Lakatos a note to apologize for lying to her. She said that she had made up the punch entirely but that the story about the bus was true. In Doe's later deposition for this case, she said that a boy she did not ...


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