SDR board, superintendent sued over treatment of nonbinary student

A mother and her nonbinary minor child, a former Rhinelander High School student, filed a lawsuit in federal court last week alleging the Rhinelander school board and school superintendent Eric Burke “repeatedly refused to recognize or respect (the child’s) gender identity” and (undertook) “a series of discriminatory and highly stigmatizing actions against them based on their sex, gender identity, and nonbinary status.”

Brooke Johnson-Paquette filed the lawsuit Oct. 31, in the U.S. District Court for the Western District of Wisconsin, on behalf of her child. The River News is not naming the juvenile plaintiff who, the complaint notes, has completed high school by taking courses through another school district and no longer resides in the community.

According to the complaint, the child was “assumed to be a girl at birth” but has identified as nonbinary since approximately 2018 and uses they/them pronouns.

While the child’s family supports their “right to live and be treated consistent with that gender identity” defendants School District of Rhinelander Board of Education, Superintendent Eric Burke, and their agents, employees, and representatives, have repeatedly refused to recognize or respect (the child’s) gender identity and have taken a series of discriminatory and highly stigmatizing actions against them based on their sex, gender identity, and nonbinary status,” the complaint alleges.

The complaint accuses the district of the following:

•  Denying (the child) equal access to restrooms at school and requiring them to use a single-occupancy restroom; 

• Intentionally and repeatedly using their birth name and incorrect pronouns, and failing to appropriately inform substitute teachers and other staff members of their preferred name and pronouns, resulting in those staff referring to (the child) by their birth name or incorrect pronouns in front of other students; 

• Ignoring (the child’s) complaints of multiple incidents of sex-based harassment due to their gender identity and labeling student-on-student harassment as “peer harassment” instead of the proper designation of sex-based harassment;

• Failing to investigate or document the sex-based discrimination and harassment experienced, and reported to staff, by (the child);

• Failing to provide equal access to educational opportunities by denying (the child) access to in-person class instruction, and instead forcing (the child)to utilize online self-directed learning materials; 

• Violating school district policies on reporting, investigating, and documenting sex-based discrimination occurring within the school district; 

• Failing to train employees on district policies and procedures related to nondiscrimination policies;

• Failing to involve the district’s Title IX Coordinator in nearly all the sex-based harassment experienced and reported by (the child).

Other specific allegations include that a teacher made “snide” comments to the child regarding their name, another student was caught trying to take photos of the child without permission, and a classmate used a derogatory slur after “bumping into” the child in a school hallway.

While the classmate admitted to the conduct, the complaint states the incident was documented as “peer mistreatment” and not sex-based harassment in school records.

Through these actions, defendants have “discriminated against (the child) on the basis of sex, including on the basis of their gender identity, nonbinary status, and nonconformity to sex-based stereotypes, in violation of Title IX of the Education Amendments of 1972 and on the basis of sex and nonbinary status in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution,” the complaint alleges. “Defendants’ actions have denied (the child) full and equal access to the School District of Rhinelander’s education program and activities on the basis of (the child’s) nonbinary identity and sex.”

The complaint notes that the Rhinelander school district receives federal funds from the U.S. Department of Education and the U.S. Department of Health and Human Services, and, as such, is subject to Title IX of the Education Amendments of 1972, which prohibits sex discrimination against any person in any education program or activity receiving federal financial assistance. The Board is “vicariously liable for the acts or omissions of its employees, agents, and representatives, including those of the other Defendant Burke and other school administrators, staff, and volunteers,” the complaint states.

As a result of the actions of the district, district staff, and students (the child’s) family suffered a significant financial loss as well as extreme stress, anxiety, and fear, the complaint alleges. A declaratory judgment and damages are requested.

“I believe that the allegations in the complaint help understand the trauma inflicted on this family,” plaintiff’s attorney Brent Eisberner wrote in a statement to the River News. “It’s unfortunate that litigation had to occur, but the school had been unresponsive for quite some time to settle this matter outside of court. We are working on formal service of the lawsuit, as required, and hope to have that done in the near future.”

In July, the U.S. Department of Education’s Office for Civil Rights (OCR) announced that the School District of Rhinelander had entered into a voluntary agreement resolving an Title IX investigation involving the same child.

“OCR’s investigation reflects that during the 2021-22 school year, a nonbinary student and their parent reported to the district that students repeatedly mocked and targeted the student during multiple classes, while multiple teachers repeatedly used incorrect pronouns for the student and one teacher removed the student from class on the ground that the teacher could not protect the student from harassment by the other students,” the Department of Education explained in a press release. “In addition, OCR reviewed evidence that students bumped the harassed student in the hallways and called the student a derogatory slur for LGBTQI+ people. Ultimately, the district responded to these allegations of harassment by changing the student’s schedule to attend school in-person for only three classes and to take additional classes through self-directed study. Based on the evidence in the investigation to date, OCR is concerned that the district response to the persistent harassment limited the student’s participation in school activities. Additionally, the information produced in the investigation does not reflect the district taking steps to ensure the student’s equal access to education with their peers.”

The school district’s commitments in the voluntary resolution agreement included:

• Evaluating whether compensatory services or other services are necessary for the harassed student due to the instructional time the student missed when attending in-person classes on an only part-time basis.

• Providing training to all district administrators and staff regarding the district’s obligation, in compliance with Title IX, to respond to complaints of sex-based harassment.

• Providing age-appropriate information programs for students to address sex-based harassment, including what students should do if they believe they or other students have experienced such harassment. 

• Conducting a climate survey to assess the prevalence of sex-based harassment and obtain suggestions for effective ways to address harassment.

In response to an inquiry from the River News regarding the resolution of the OCR investigation, Burke offered the following statement.

“We continuously provide training to our students and staff, so agreeing to provide more training (on discrimination, harassment and bullying) was a commitment we have already embraced,” he told the River News in July. “The District is committed to providing a safe environment for all students.” 

The River News contacted Burke on Wednesday, after learning that a federal lawsuit had been filed. 

He referred the newspaper to attorney Ron Stadler who offered the following comment: “The District and Mr. Burke deny that there was any violation of law. The complaint mischaracterizes facts and misconstrues the law. The District welcomes the opportunity to set the record straight in these proceedings.”

Heather Schaefer may be reached at [email protected].