In an early application of the 7th Circuit’s ruling in Hively v. Ivy Tech Community College, 853 F.3d 339 (Apr. 4, 2017), U.S. District Judge James D. Peterson of the Western District of Wisconsin (which is in the 7th Circuit) ruled that an autistic man who used to be a student in the Eau Claire Area School District can maintain his action under Title IX and the Equal Protection Clause on a claim that he was subjected to harassment based on sex-stereotyping and a perception by other students that he was gay, and that school authorities who were informed of the harassment did not take any reasonable steps to address the situation. Bowe v. Eau Claire Area School District, 2017 WL 1458822, 2017 U.S. Dist. LEXIS 61496 (D. Wis., April 24, 2017).
Connor Bowe also asserted claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1974, as well as Title VI of the Civil Rights Act. Wrote Judge Peterson, summarizing the complaint, “Bowe’s schoolmates bullied him for many years. They called him names, such as ‘gay,’ ‘queer,’ ‘fag,’ ‘pussy,’ ‘stupid,’ and ‘butt boy.’ They shoved him and threw things at him. ‘At some point prior to’ February 2011, when Bowe was about to turn 14, [Principal Tim O’Reilly] and non-party Kevin Stevens, another District official, told some of Bowe’s classmates that Bowe suffered from autism. Bowe’s parents did not consent to the disclosure of Bowe’s disability. The bullying continued, and in fact grew more serious. Between February 2011 and February 2014, Bowe’s classmates called him ‘stupid,’ ‘fat,’ ‘weak,’ ‘fag,’ ‘pussy,’ ‘shit stain,’ and ‘bubble butt.’ They accused him of having ‘mental deficiencies’ and told him to ‘go fucking die.’ They threw things at him, threatened to hurt him, ‘physically assaulted him,’ threw eggs at his house, and left a bag of feces at his house. Bowe and his parents complained to [Principal David] Oldenberg, O’Reilly, and other District officials about the bullying multiple times a year each year from 2010 to 2015, but no District official took any action to end the bullying. Because of the bullying, Bowe’s grades fell significantly and he was prevented from fully participating in some of his classes.” We have reproduced the court’s summary in full so that readers can appreciate the severity of abuse Bowe claims to have suffered.
Bowe filed his complaint on November 14, 2016. The defendants moved to dismiss. They argued, as to the ADA and Rehabilitation Act claims, that Bowe had not alleged “facts sufficient to show that he was harassed based on his disability or that the harassment was sufficiently severe or pervasive,” according to Judge Peterson’s description of the motion. Who are they kidding? They tried to argue that because just a few of the items of verbal harassment might be linked to Bowe’s autism, he could not state a claim under the disability discrimination laws. Peterson rejected that argument. “When some incidents of harassment are alleged to be based on the plaintiff’s protected status, the court may consider allegations of other, more generalized harassment when determining whether the alleged harassment was severe enough to state a peer-harassment claim. One may reasonably infer from Bowe’s allegations that the totality of the harassment he endured was so severe that it changed the conditions of his education and created an abusive education environment.”
As to the Title IX sex discrimination claim, Peterson rejected the defendants’ argument that “Bowe has not plausibly alleged that he was harassed on the basis of sex.” To the contrary, he wrote, “As both parties recognize, allegations that a plaintiff was ‘harassed because of a failure to adhere to specific sexual stereotypes’ are sufficient to satisfy this element,” citing Hively. He noted a district court decision from Indiana that found that it was reasonable to infer harassment because of “failure to adhere to traditional male stereotypes” when a victim was called “gay” and “faggot” by bullies. While conceding the defendants’ contention that some courts have described as a “subtle” issue under Title IX the inference to be drawn when “young children” use “gendered words” to bully other children, Peterson pointed out that the cases defendants were relying on “show that the use of such words by middle- and high-school students may constitute sexual harassment.” Here, he wrote, “the consistent pattern of gender stereotype slurs alleged by Bowe makes it easy to infer that his classmates harassed him because of his failure to adhere to traditional gender stereotypes.”
In addition to his statutory claims, Bowe sought to hold two District officials liable for an equal protection violation under the 14th Amendment, asserting a “class-of-one” equal protection claim. Defendants argued that he had failed to allege that he was treated differently from others similarly situated. (What? Are they claiming that all students who complained of harassment were similarly blown off or ignored by school administrators?) Peterson rejected this argument, relying on Miller v. City of Monona, 784 F.3d 1113 (7th Cir. 2015), for the proposition that “‘plaintiffs alleging class-of-one equal protection claims do not need to identify specific examples of similarly situated person in their complaints,’ at least when the complaint does not otherwise reveal a rational basis for the difference in treatment.” Here, wrote Peterson, “Bowe alleges that O’Reilly and Oldenberg knew about the ongoing harassment but took no action to stop it. Taking these allegations as true, there is no rational basis for their treatment of Bowe. So Bowe’s equal protection claims will survive defendants’ motion to dismiss.”
The defendants also argued that because Bowe could have asserted claims under the Individuals with Disabilities Education Act (IDEA), he was required to file his charges with the Department of Education and exhaust administrative remedies before filing suit, but Peterson was unpersuaded, finding that Bowe’s claims arose independently under the various discrimination laws he cited, and did not require administrative exhaustion. At this point, the now 20-year-old Bowe is seeking a remedy for past actions, not suing under IDEA for an order to the school district to ensure that he receive the “free appropriate public education” promised under IDEA.
However, Peterson noted that Bowe “made no argument in support” of his direct ADA and Rehabilitation Act claims (and a racial discrimination claim under Title VI) in responding to the motion to dismiss, and so those claims were waived and would be dismissed in response to the district’s motion. Peterson also denied Bowe’s request to allow him to file an amended complaint to make up for any pleading deficiencies, finding that the original complaint, which withstood the motion to dismiss under Title IX and the Equal Protection Clause, was adequate to support his claims for the relief he is seeking. Thus, Peterson denied the defendants’ motion to dismiss the Title IX and Equal Protection claims, on which the case can proceed.
Bowe is represented by Paul A. Kinne, of Gingras, Cates & Luebke, S.C., Madison, WI.