Jane Doe v. Don Galster , 768 F.3d 611 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2551
JANE DOE, a minor,
Plaintiff-Appellant,
v.
DON GALSTER, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 09-CV-1089—Patricia J. Gorence, Magistrate Judge.
____________________
ARGUED FEBRUARY 10, 2014 — DECIDED SEPTEMBER 19, 2014
____________________
Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
KENDALL, District Judge. ∗
HAMILTON, Circuit Judge. Plaintiff “Jane Doe” was born in
Russia and came to the United States at the age of two when
∗ The Honorable Virginia M. Kendall, United States District Judge
for the Northern District of Illinois, sitting by designation.
2 No. 13-2551
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 ex-
pelled 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 Amend-
ments of 1972. She alleges that the bullying was motivated
by her sex and ethnicity and that the school was legally re-
sponsible for it. Based on the same allegations, Doe also as-
serts 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 inex-
cusable, 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 stu-
dent’s mistreatment of another. School officials must have
had “actual knowledge” of harassment “so severe, perva-
sive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or ben-
efits provided by the school.” Davis v. Monroe County Board of
Education, 526 U.S. 629, 650 (1999). To have actual knowledge
of an incident, school officials must have witnessed it or re-
No. 13-2551 3
ceived 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 moti-
vated 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 de-
fendants 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
non-moving 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 se-
vere 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
4 No. 13-2551
T.M. not to do those things again. T.M. and a friend, J.Q., al-
so called Doe “bitch” and “whore” on more than one occa-
sion. Doe discussed this name-calling with Ms. Lakatos, a
guidance counselor.
The harassment continued in the second semester of sev-
enth 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 no-
ticed 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 in-
sults 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 hav-
ing 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
“Homework Club Rooms” and separated their lockers,
which had been only two or three lockers apart.
No. 13-2551 5
Doe reported other specific incidents of harassment that
did not involve T.M. or his friends to her mother and Laka-
tos, 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 em-
ployee 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 know had in fact punched her but that she had not
reported it because she had not wanted him to get in trouble.
As seventh grade drew to a close, T.M.’s and his friends’
mistreatment of Doe escalated. One day late in the school
year, Doe drew on T.M.’s shirt with a marker. In retaliation
T.M. followed her to her locker and punched her in the face
with a closed fist. One of Doe’s friends saw part of the inci-
dent and alerted a teacher whose classroom was nearby. The
teacher asked Doe what had happened. Doe told her that
nothing had happened, assuring the teacher that she would
6 No. 13-2551
tell her if something had. Doe did not tell her parents or any
school official about the punch.
Sometime in May, not long after T.M. had punched Doe,
the two of them and other students, including T.M.’s friend
M.C., were at a track meet. While T.M. and M.C. were run-
ning their event, one of Doe’s friends dropped T.M.’s jacket
over the back of the bleachers to the ground and then left.
When T.M. returned, he found his jacket on the ground and
blamed Doe for dropping it there. He hit Doe with his
spiked track shoe on her arm and knee, breaking the skin,
drawing blood, and leaving several puncture wounds. He
told her that he would kill her if she told anyone. When Doe
was heading for the bus after the meet, T.M. and M.C. ap-
proached her from behind. M.C. hit her with his spiked track
shoe five or six times in the back of her thigh. No coaches
saw this, and Doe did not tell anyone at the time.
The final and most violent incident was on the last day of
school. Doe and other students were on the playground dur-
ing recess. T.M., M.C., and J.Q. were there playing basket-
ball. M.C. mistakenly thought that Doe and her friends were
laughing at him. After M.C. threw a ball at her and she
threw it back at him, the boys picked up sticks from the
woods and began chasing her. The boys caught her and hit
her with the sticks on her arm and back. They then stopped
for a while but soon began chasing her again. Doe ran past a
teacher who ordered the boys to put the sticks down, which
they did. But after the teacher was out of sight, M.C. picked
up a stick and hit Doe on her back again. No school official
saw Doe being hit, and she did not report what had hap-
pened at that time.
No. 13-2551 7
While recess continued, another teacher brought ice
cream to the students on the playground. Doe threw hers at
T.M. In response, he pushed Doe into a mud puddle, rubbed
dirt on her face, and kicked her in the back. At this point, a
teacher saw what was happening and intervened, sending
both of the students inside to see Associate Principal Hinz.
Hinz had Doe and T.M. complete written statements about
the incident. After telling them that she would be contacting
their parents, she allowed them to catch their buses home.
Hinz then called their parents.
When Doe got home, she told her parents what T.M. and
his friends had done to her that day and on previous occa-
sions. She and her father returned to the school to discuss
these events with Hinz. While they were there, Doe’s father
called the local police department. An officer arrived and in-
spected Doe’s wounds, noting multiple injuries: an “ex-
tremely red and puffy” welt twelve to sixteen inches long
across the middle of Doe’s back, as well as other welts sever-
al inches long on her arms and legs and puncture marks on
both legs.
The school district opened an investigation into the full
extent of what T.M. and his friends had been doing to Doe.
Principal Don Galster interviewed witnesses. He focused on
three incidents: the sticks incident, the track-meet incident,
and the incident in which T.M. punched Doe in the face at
her locker. Galster regarded these incidents as more serious
than and different from incidents earlier in the semester. The
school’s investigation was completed within twelve days.
The police also investigated. T.M. was charged with several
counts of misdemeanor battery, and the two other boys were
also charged with misdemeanor battery.
8 No. 13-2551
Principal Galster visited Doe and her parents in June or
July to apologize to Doe for what had happened, to assure
her that it was not her fault, and to let her know that there
had been an investigation. He told Doe and her parents that
he would be recommending that all three boys be expelled.
At some point that summer, Doe’s parents asked that she
be assigned to a different school in the district for the next
school year. School officials denied the request. Near the end
of the summer, Doe’s parents requested a safety plan but
were told that they “would have to trust” that Doe would be
protected. Facing expulsion, T.M. and M.C. withdrew from
the school district in July. In August, J.Q. was expelled.
The Does made a decision to move out of the Elmbrook
School District just before Labor Day, 2008. At the time the
Does decided to move, they knew that at least one of the
three boys had withdrawn, but the school district had not
told them that none of the boys would be returning to Pil-
grim Park for eighth grade. According to Superintendent
Matthew Gibson, there was a “tension between wanting to
ensure [sic] a victimized student … that she’s going to be
safe in the future and respecting the confidentiality of the
disciplined perpetrators.”
When Jane Doe gave her deposition testimony in 2012,
she was still in treatment for post-traumatic stress disorder,
but she had given three public addresses on the subject of
school bullying. She also pushed for the passage of Wiscon-
sin’s first anti-bullying law, and she has been recognized by
the Wisconsin legislature for her leadership on the subject.
No. 13-2551 9
II. Analysis
A. Doe’s Claims under Title VI and Title IX
Title VI of the Civil Rights Act of 1964 provides: “No per-
son in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d. Title IX of the Education Amendments of
1972 makes the same guarantee but substitutes “on the basis
of sex” for “on the ground of race, color, or national origin.”
20 U.S.C. § 1681(a). Title VI and Title IX are so similar that a
decision interpreting one generally applies to the other. Fitz-
gerald v. Barnstable School Committee, 555 U.S. 246, 258–59
(2009); Doe v. Smith, 470 F.3d 331, 338 (7th Cir. 2006).
The Supreme Court has set a high bar for plaintiffs seek-
ing 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.” Davis, 526 U.S. at 643 . A peer-
harassment plaintiff must demonstrate that the harassment
was discriminatory, the school officials had “actual
knowledge” of the harassment, the harassment was “so se-
vere, pervasive, and objectively offensive that it … deprive[s]
the victims of access to educational opportunities,” and offi-
cials were “deliberately indifferent” to the harassment. Id. at
650. The Court made clear that “courts should refrain from
second-guessing the disciplinary decisions made by school
administrators.” Id. at 648.
10 No. 13-2551
1. Discriminatory Harassment
Title VI protects students from discrimination only if it is
based on race, color, or national origin, and Title IX only if
based on sex. As noted above, there were some explicit ref-
erences to Doe’s Russian origin. Regarding sex, in the context
of adult employment, we have held that gendered words
like bitch and whore, even if used to describe both women
and men, can be strong evidence that the harassment at issue
is on the basis of sex. See Passananti v. Cook County, 689 F.3d
655, 665–67 (7th Cir. 2012) (reversing summary judgment for
employer because supervisor’s repeated use of “bitch” to re-
fer to plaintiff could support finding of sexually hostile envi-
ronment). The issue is more subtle in the school context be-
cause “at least early on, students are still learning how to in-
teract appropriately with their peers.” Davis, 526 U.S. at 651.
Children are often less aware of the import of their words
and actions. The district court concluded that no reasonable
jury could find that any of the bullying Doe suffered was
based on her national origin or gender. We are not as con-
vinced, but we need not resolve the issue because, as ex-
plained below, Doe’s claims fail for other reasons.
2. Actual Knowledge
School administrators learned of some of the more minor
incidents between Doe and other students contemporane-
ously, but it is undisputed that they did not witness and
were not told about the violent incidents until the evening of
the last day of her seventh grade year at the earliest. Doe ar-
gues, however, that counselor Lakatos and other school offi-
No. 13-2551 11
cials knew enough about the situation to trigger further in-
vestigation long before Doe’s last day of seventh grade.
School administrators certainly cannot escape liability by
putting their heads in the sand, but there is no evidence that
any school official willfully avoided learning of serious
threats to Doe’s safety or ability to obtain an education. The
standard set out in Davis is not satisfied by knowledge that
something might be happening and could be uncovered by
further investigation. The standard is “actual knowledge.”
School administrators have actual knowledge only of the in-
cidents that they witness or that have been reported to them.
Gabrielle M., 315 F.3d at 823–24. In this case, administrators
knew about the name-calling and a number of other dis-
putes between Doe, T.M., and others. There is no evidence,
however, that they knew before the last day of school about
the much more severe events that they did not witness: T.M.
punching Doe in the face, the attacks at the track meet, or
that day’s attacks with sticks.
3. Harassment that Denies Equal Access
Federal law does not protect students from commonplace
schoolyard altercations, including name-calling, teasing, and
minor physical scuffles. As the Supreme Court stressed in
Davis, “children may regularly interact in a manner that
would be unacceptable among adults.” 526 U.S. at 651. At
school they “often engage in insults, banter, teasing, shov-
ing, pushing, and gender-specific conduct that is upsetting
to the students subjected to it,” but “[d]amages are not avail-
able for simple acts of teasing and name-calling among
school children.” Id. at 651-52. This is true “even where these
comments target differences in gender.” Id. at 652. Instead, to
be actionable, the harassment must be serious enough to
12 No. 13-2551
“den[y] its victims the equal access to education that Title IX
is designed to protect.” Id.The incidents that the school district actually knew about
before the last day of school did not amount to severe har-
assment that denied Doe equal access to educational benefits
or opportunities. The name-calling and the various scuffles,
even when viewed in the light most favorable to Doe, would
have appeared to school administrators as the “simple acts
of teasing and name-calling among school children” con-
templated by the Supreme Court in Davis. 526 U.S. at 652.
We assume that relatively minor incidents could be so nu-
merous or incessant as to qualify as severe harassment under
Title VI or Title IX, but a reasonable jury could not find that
the incidents school officials knew about before the last day
of school rose to that level.
On the other hand, a reasonable jury could find that the
violent physical attacks toward the end of seventh grade
added up to severe or pervasive harassment that denied Doe
equal access to educational benefits or opportunities. These
attacks could qualify as “objectively offensive.” Davis,
526 U.S. at 650. In one, T.M. pushed Doe and punched her in
the face in the hallway after class. In another, T.M. and M.C.
repeatedly hit Doe with metal track spikes at a track meet,
making her limp and bleed. In yet another, all three of the
boys hit Doe with sticks on the playground on the last day of
school—leaving a foot-long welt on her back and other inju-
ries. The attacks eventually drove Doe out of the school dis-
trict.
A reasonable jury could find that the cumulative effects
of this abuse were comparable to harassment found in rare
cases to be sufficiently severe under Title VI and Title IX. In
No. 13-2551 13
Zeno v. Pine Plains Central School District, the Second Circuit
affirmed a jury verdict for plaintiff, finding that the severity
requirement was satisfied where the victim endured blatant
racial slurs and physical attacks that warranted police atten-
tion, including instances in which the victim was punched
and choked. 702 F.3d 655, 659–62, 667 (2d Cir. 2012). Because
of this abuse, the victim opted to graduate early with a lim-
ited diploma rather than stay and complete the work needed
for a full high school diploma. Id. at 663. Similarly, in Vance v.
Spencer County Public School District, the Sixth Circuit af-
firmed a verdict for the plaintiff, finding sufficiently severe
harassment where the victim’s harassers sexually proposi-
tioned her, yanked off her shirt, and stabbed her in the hand.
231 F.3d 253, 259 (6th Cir. 2000). Because of this harassment,
the victim began completing her studies at home. Id. And in
Murrell v. School District No. 1, the Tenth Circuit found that a
complaint sufficiently alleged severe harassment where the
victim was sexually assaulted for a month and was eventual-
ly hospitalized and then rendered homebound by the abuse.
186 F.3d 1238, 1248 (10th Cir. 1999).
Doe, too, was subjected to multiple incidents of physical
violence that merited police attention. Although Doe was not
hospitalized like the victim in Murrell or forced to begin
home-schooling like the victim in Vance, her family under-
standably decided to change school districts because of the
prospect that one or two of the three boys might return to
Pilgrim Park with Doe for eighth grade. The Does’ reasona-
ble decision to move to another school district is analogous
to the victim’s decision in Zeno to opt for an early graduation
and a lesser diploma rather than face more harassment. In
short, a reasonable jury could find that the violent attacks
Doe suffered—which ultimately resulted in her leaving the
14 No. 13-2551
school district—constituted severe harassment that caused a
negative and “systemic effect” on Doe’s education. Davis, 526
U.S. at 653.
4. Reasonableness of the District’s Response
The standard of deliberate indifference sets a high bar for
plaintiffs under Title VI and Title IX. See Davis, 526 U.S. at
643. School administrators must “continue to enjoy the flexi-
bility they require” in disciplinary decisions unless their re-
sponse to harassment is “clearly unreasonable.” Id. at 648–
49. The Court stressed in Davis that Title IX does not require
administrators to “engage in particular disciplinary action.”
Id. at 648. We echoed this concern in Gabrielle M. We said that
a “school may take into consideration administrative bur-
dens or the disruption of other students’ or their teachers’
schedules in determining an appropriate response [to peer
harassment].” 315 F.3d at 825. As the Fifth Circuit has ob-
served, “Judges make poor vice principals … .” Estate of
Lance v. Lewisville Indep. School Dist., 743 F.3d 982, 996 (5th
Cir. 2014).
Doe argues that the school officials knew about a pattern
of non-severe harassment by T.M. and his friends during
sixth grade and early in seventh grade, and that based on
that pattern, the school should have done more to investi-
gate and to prevent the violent acts that were committed
against Doe at the end of the seventh grade. If we accepted
that argument, however, we would be substituting a negli-
gence standard for both the severity and deliberate indiffer-
ence standards that control this case under Davis.
We agree instead with the district court that no reasona-
ble jury could find that the defendants responded with de-
No. 13-2551 15
liberate indifference to any of the bullying or harassment
that Doe suffered, including both the severe and non-severe
incidents. In Gabrielle M., we affirmed the grant of summary
judgment in a Title IX case partly on the ground that the
school district’s response to the peer harassment at issue was
not clearly unreasonable. 315 F.3d at 825. We emphasized:
“After each reported or observed instance involving Jason
[the harasser] and other students, Jason was disciplined and
steps were taken to prevent future inappropriate conduct.”
Id. at 824. Similarly in this case, after every reported or ob-
served incident of bullying involving Doe, school officials
promptly intervened. As the incidents persisted and escalat-
ed, so did the school’s responses.
The first incidents between Doe and T.M. occurred in the
sixth grade. School officials responded adequately to each
incident they knew about. When T.M. erased some of Doe’s
work in English class and Doe told the teacher, the teacher
spoke with T.M. and explained that what he did was wrong.
When the gym teacher saw T.M. throw a ball at Doe in gym
class, the gym teacher involved counselor Lakatos, who also
spoke with Doe about the name-calling between her and
T.M. The involvement of guidance counselors and school
psychologists is evidence that a school district was respond-
ing appropriately. Porto v. Town of Tewksbury, 488 F.3d 67, 76
(1st Cir. 2007); Gabrielle M., 315 F.3d at 824.
When the problems between Doe and T.M. resurfaced in
the second half of the seventh grade, the undisputed facts
show that school officials again responded swiftly and rea-
sonably to incidents they knew about. When a teacher saw
T.M. dump Doe’s papers on the floor, he ordered T.M. to
help her pick them up. When M.C. knocked papers off her
16 No. 13-2551
desk, a teacher intervened. When the band director noticed
Doe and T.M. pushing in band class, he gave both of them
detention. In addition, counselor Lakatos continued to meet
with Doe about once or twice a week.
School officials also took measures to reduce contact be-
tween Doe and T.M. by moving their lockers, assigning them
to different study groups, and asking them to agree to stay
away from each other. We found similar efforts showed that
a school’s response to harassment was not clearly unreason-
able in Gabrielle M., where school administrators assigned
the victim and harasser to different lunch and recess periods.
315 F.3d at 824–25. Similarly, in Porto v. Town of Tewksbury,
the First Circuit overturned a jury verdict and found that the
school district was not deliberately indifferent because offi-
cials had taken measures to separate the victims from their
harassers. 488 F.3d at 76.
The serious violence of the last day of school sparked a
further escalation in the school’s response to the bullying. On
that day, school officials responded promptly to two ob-
served incidents. When a teacher saw T.M. and his friends
chasing Doe with sticks, the teacher had the boys put the
sticks down. And later, when another teacher saw Doe
throw ice cream at T.M. and T.M. push Doe down into a
mud puddle, she sent them both to Hinz’s office, and Hinz
telephoned the students’ parents. Courts applying the delib-
erate indifference standard from Davis have regarded the in-
volvement of parents as evidence that a school district is re-
sponding to harassment in a reasonable manner. See, e.g.,
Estate of Lance, 743 F.3d at 1000–01 (applying Davis standard
to affirm summary judgment for school district; finding no
deliberate indifference where district engaged in a “pattern
No. 13-2551 17
of active responses” that included communicating with par-
ents).
Doe’s and her father’s visit to Principal Galster later that
day prompted his investigation into what exactly T.M. and
his friends had been up to. In his investigation, Galster
learned the full extent of what the boys had been doing to
Doe on the last day of school—hitting her violently with
sticks. He also learned about the track-meet incident and the
incident in which T.M. punched Doe’s face. Galster complet-
ed a thorough investigation, including interviewing witness-
es, within twelve days of learning of the severe harassment.
Cf. Zeno, 702 F.3d at 661, 671 (affirming a jury verdict for
plaintiff for peer harassment where school district’s Title VI
and Title IX compliance officer knew of reports of racial har-
assment but “elected not to investigate”). Not long after the
investigation, Galster met with the Does and informed them
of his decision to recommend the three boys for expulsion.
Doe points out, however, that over the summer, the
school district did not give her a formal safety plan even
though her parents requested one. Nor did the school dis-
trict grant her request to transfer to a different school. The
school district also did not inform the Does that the three
boys would not be returning to Pilgrim Park before the fami-
ly decided to move to another school district at the end of
August 2008. These facts still would not allow a reasonable
jury to find that the defendants’ actions were clearly unrea-
sonable.
First, Davis does not entitle plaintiffs to any specific re-
medial measure. E.g., Zeno, 702 F.3d at 666 (disclaiming a
victim’s right to specific remedies and according deference to
school officials). The school was not required by federal law
18 No. 13-2551
to give Doe a formal safety plan. We also do not see how fail-
ing to adopt a formal safety plan could be clearly unreason-
able in light of the fact that the harassing students were in
the process of being expelled, making a safety plan less nec-
essary.
Second, it is true that in Gabrielle M., we regarded the fact
that a school district granted the student-victim’s request to
transfer to a different school as evidence that the school dis-
trict’s response to her harassment was not clearly unreason-
able. 315 F.3d at 825. But that does not make the denial of
Doe’s request to transfer to a different school clearly unrea-
sonable, at least when Doe’s harassers were in the process of
being expelled and likely would not return to her school for
eighth grade and in fact did not return.
Finally, we do not think it clearly unreasonable that the
school district failed to tell the Does by a specific date that
summer that the boys would not be returning. As Superin-
tendent Gibson correctly explained, although Doe’s family
understandably would have liked to know what was hap-
pening in the boys’ expulsion hearings, school officials also
had to respect the privacy rights of the disciplined students.
See generally Wis. Stat. § 118.125 (confidentiality of pupil
records). Given this tension between the legal rights of all
the students involved, a reasonable jury could not find that it
was clearly unreasonable for school officials not to inform
the Does about the status of all three boys by the end of Au-
gust.
Nor is this a case where the school district responded
with half-hearted remedial measures. See, e.g., Zeno, 702 F.3d
at 668–71 (finding deliberate indifference where school dis-
trict repeatedly gave the same ineffective warnings in re-
No. 13-2551 19
sponse to known racial harassment). There was nothing half-
hearted about the expulsion of the three boys. We do not
mean to suggest here that expulsion of the harassers was the
only reasonable disciplinary route. School-age bullies also
have legal rights. See Goss v. Lopez, 419 U.S. 565 (1975). Fed-
eral law gives school officials wide discretion in making dis-
ciplinary decisions, especially as they have to balance the in-
terests of all concerned. In this case, however, the forceful-
ness of expulsion certainly demonstrates how seriously the
defendants took the boys’ bullying of Doe once they learned
its full extent.
The undisputed facts thus show that defendants’ re-
sponses to the known acts of severe peer harassment suf-
fered by Doe in this case were not deliberately indifferent.
We affirm the grant of summary judgment for the defend-
ants on Doe’s Title VI and Title IX claims.
B. Equal Protection Claim
For Doe’s equal protection claim to survive summary
judgment, she needed to offer evidence that the defendants
“acted with a nefarious discriminatory purpose … and dis-
criminated against [her] based on [her] membership in a de-
finable class.” Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir.
1996) (citations omitted). In addition, she needed to offer ev-
idence “that the defendants acted either intentionally or with
deliberate indifference.” Id. at 454; see also Gant v. Walling-
ford Board of Education, 195 F.3d 134, 140 (2d Cir. 1999) (“[T]o
succeed on a claim [for peer harassment under the Equal
Protection Clause], a plaintiff must show deliberate indiffer-
ence on the part of the defendants themselves.”); Murrell, 186
F.3d at 1249–51 (holding that teachers, administrators, and
20 No. 13-2551
school boards deny equal protection through deliberate in-
difference to peer sexual harassment).
As we found above in the Title VI and Title IX deliberate-
indifference analysis, the undisputed facts show that school
administrators responded to known acts of bullying and
harassment against Doe with prompt and escalating disci-
plinary and preventive measures. A reasonable jury could
not find that they acted with deliberate indifference to Doe’s
rights. Summary judgment on Doe’s equal protection claim
was appropriate as well.
The judgment of the district court is AFFIRMED.