October 29, 2024 at 5:55 a.m.
One year later, civil lawsuit against school district still pending
Nearly seven months after attorneys for the School District of Rhinelander filed a motion to dismiss the case, a federal lawsuit filed last fall related to the district’s treatment of a non-binary student remains pending.
In a complaint filed on Oct. 31, 2023, Brooke Johnson-Paquette and her child alleged that Rhinelander school officials “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.”
According to the complaint, the child was “assumed to be a girl at birth” but has identified as nonbinary since approximately 2018.
The complaint accuses the district of:
• 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).”
The school district’s motion to dismiss, filed during the first week of April, alleges the case should be dismissed because plaintiffs do not have a viable legal claim.
“A plaintiff’s obligations to provide the ‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do,” the district has argued.
The district also alleged that the plaintiffs “cannot show that declaring to be nonbinary is protected as ‘sex’ under Title IX.
“‘Non-binary’ is an umbrella term that includes those whose identity falls outside of or between male and female identities; as a person who can experience both male and female, at different times, or someone who does not experience or want to have a gender identity at all,” the district alleged. “Plaintiff alleges that as a nonbinary person, things like dividing classes into ‘boys and girls’ is discriminatory. But if a nonbinary person is neither male nor female, then it is hard to understand how Title IX’s prohibition on sex-based discrimination can extend to one’s nonbinary status.”
“Declaring that one is neither gender and then being treated like every other male and female student is not punishing one for being gender non-conforming,” the district argued.
Even if Title IX applies to a student’s nonbinary status, the plaintiffs do not have an actionable claim of direct discrimination, the district contends.
“Plaintiff has never been treated differently because Plaintiff’s sex does not align with the male or female sex,” the district’s motion reads. “Plaintiff has been treated the same as all other students, male or female.”
The district also disputes the argument that the child was subjected to a hostile educational environment due to the behavior of other students and some staff members.
“As a threshold matter, none of these specific actions are severe or pervasive enough, alone or in conjunction, to create a hostile educational environment,” the district argued. “A few instances of students making isolated insensitive comments does not rise to the level of severe and pervasive harassment. Simple teasing or being called an offensive name is not enough to constitute harassment because ‘in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education. Federal law does not protect students from commonplace schoolyard altercations, including name-calling, teasing, and minor physical scuffles.”
Even if the “isolated incidents” could rise to the level of a hostile educational environment, the district argued its responses to the reports of peer-on-peer harassment were not unreasonable or deliberately indifferent.
“The prevailing case law establishes that a school is not deliberately indifferent as long as it takes ‘some’ affirmative steps to investigate and remediate the situation,” the district argued. “In contrast, the Supreme Court has indicated that deliberate indifference to harassment would require the school to ‘deliberately ignore requests for aid’ and ‘know[ingly] refus[e] to take any action.’ In other words, ‘courts have found the issue of deliberate indifference to preclude dismissal . . . when the school made no effort whatsoever to either investigate harassment, stop it, or discipline the offending student.”
“A prompt investigation into allegations of harassment evidences reasonable action,” the district contends. “Likewise, speaking to a student about name calling, involving guidance counselors, reducing contact between students, and asking students to stay away from each other have all been held to show that a school’s response to harassment was not clearly unreasonable. Communicating with the parents of the students who committed acts of harassment and the parents of the victim is evidence that a school district did not act with deliberate indifference.”
“School districts are not required to prevent peer harassment or to take any particular disciplinary action in response to harassment,” the district’s attorneys continued. “Moreover, a school does not act unreasonably just because a plaintiff feels that the school’s disciplinary decision was insufficient to resolve their concerns.”
“The Supreme Court has set a high bar for plaintiffs seeking to hold schools and school officials liable for student-on-student harassment. School officials are given broad latitude to resolve peer harassment and are liable only in ‘certain limited circumstances,” attorneys for the district wrote.
On Oct. 21, the parties filed a joint motion requesting the court amend the current scheduling order.
“The parties are approaching the point where they must start considering whether to expend the time and resources to prepare motions for summary judgment and then preparing for trial,” the joint motion reads. “This consideration is made more complicated for Defendants as their motions to dismiss focused on threshold issues related to whether a claim can even be brought against them, and any arguments on summary judgment would need to be made in the alternative in the event that Plaintiffs’ claims were to survive the motion to dismiss. With the motion to dismiss still under advisement of the Court, the parties believe that good cause exists to amend the current scheduling order. Amendment of the scheduling order would provide more certainty to the litigants and conserve judicial resources by not presenting a second set of dispositive motion filings before the Court.”
Magistrate Judge Andrew Wiseman responded to the motion by striking the deadline for the filing of dispositive motions. For now, all other dates and deadlines remain as scheduled.
At present, the case is scheduled for jury trial in April 2025.
Heather Schaefer may be reached at [email protected].
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