A federal judge in the Western District of Wisconsin has let stand part of a lawsuit brought by a plaintiff against a school district and various officials, which she claimed were indifferent to the fact that she was being sexually assaulted by her high school basketball and golf coach over a period of several months in 2004.
The individual defendants — Paul Brusky (the principal), Pamela Huston (the athletic director) – successfully argued that Title IX preempts the plaintiff’s 42 U.S.C. § 1983 claim. However, the court ruled against the defendants on the question of whether the plaintiff’s negligence claim was barred by the doctrine of governmental immunity.
The incidents leading to the litigation started in 2004 when Coach Mitchell King began telling the plaintiff, then 14, that he had “sexual feelings” for her. Around the same time, the principal of the school, defendant Paul Brusky, expressed his concerns to the coach that he “was spending too much time with the female basketball players and exhibiting favoritism.”
The coach’s actions toward the player intensified in April 2004 when he sexually assaulted her twice before driving her home from golf practice. “During this same month, defendant Brusky met with King to discuss his ‘inappropriate’ relationship with (the plaintiff),” noted the court.
“King’s sexual assaults and harassment of (the plaintiff) continued and worsened for several months. … In May, the team stayed at a hotel for an overnight golf outing. King booked himself and N.B. in adjoining rooms in a separate wing from the remainder of the team. The school board was aware of these arrangements. That night, King raped (the plaintiff).”
The abuse continued over the summer, becoming more and more obvious to various officials. When the plaintiff’s family became aware of the abuse in late 2004, they reported the abuse to the police, who arrested King.
“Members of the school board, defendant Brusky and defendant Huston were aware that defendant King was sexually harassing (the plaintiff),” wrote the court. “Neither Brusky, Huston nor the other school board members investigated King’s misconduct, informed the school’s Title IX representative or reported King to county or state authorities.
”The school board failed to train its employees about mandatory reporting requirements and procedures for suspecting child abuse and sexual harassment. It authorized defendant King to be alone while on school premises and at school-sponsored events.”
The plaintiffs (the victim and her mother) sued for damages brought under 42 U.S.C. § 1983, 20 U.S.C. § 1681 (Title IX of the Education Amendments of 1972) and state law. They also alleged that “the principal, the athletic director and various members of the school board knew about King’s abuse, but failed to report it or otherwise prevent it from continuing, in violation of the due process and equal protection clauses of the Constitution and Title IX.” The plaintiffs also asserted a negligence claim under state law.
The defendants moved to dismiss the plaintiff’s constitutional claims as preempted by Title IX and her negligence claim as barred by the doctrine of governmental immunity.
The court granted the defendants’ motion with respect to the plaintiffs’ constitutional claims. “Although plaintiffs make a persuasive argument that Title IX does not preempt claims other than those relating to sex discrimination, a contrary conclusion is required by Doe v. Smith, 470 F.3d 331 (7th Cir. 2006), in which the court of appeals dismissed both equal protection and due process claims as preempted by Title IX. Accordingly, I must dismiss all of plaintiffs’ claims against defendants Brusky, Huston and the school board that were brought pursuant to 42 U.S.C. § 1983.”
Turning to the negligence claim, the court decided against applying the doctrine of governmental immunity.
“Public officials in Wisconsin are not immune from suit when they disregard a ‘ministerial’ duty or a ‘known danger.’ Plaintiffs have alleged that defendants knew (the plaintiff) was being abused by defendant King. At the pleading stage, this is sufficient to show that defendants had a ministerial duty to comply with the child abuse reporting requirements of Wis. Stat. § 48.981 or to take some other action to protect plaintiff from the known danger of further abuse.”
N.B., Robin Baumgardt And Mark Baumgardt v. Wausau School District Board Of Education, Paul Brusky, Mitchell King, Pamela Huston, State Farm Mutual Automobile Insurance Company, The Boller Group, Inc. And Marathon Savings Bank; W.D. Wis.; 06-C-487-C, 2007 U.S. Dist. LEXIS 14164; 2/26/07
Attorneys or Record: (for plaintiffs) Lawrence G. Albrecht, First, Albrecht & Blondis, S.C., Milwaukee, WI. (for defendants) Lisa M. Arent, Whyte Hirschboeck Dudek S.C., Milwaukee, WI. John M. Moore, Bell, Gierhart & Moore, S.C., Madison, Wi; Michele M. Ford, Crivello, Carlson & Mentkowski, Milwaukee, WI. Claude Covelli, Boardman, Suhr, Curry & Field, Madison, WI. Lori M. Lubinsky Axley Brynelson, Madison, WI.
