Case Information
*1 Before R IPPLE H AMILTON S T . E VE Circuit Judges . S T . E VE Circuit Judge
. Before arrival COVID pandemic spring ff Michelle Jauquet’s daughter, “Student A,” already experiencing exceed ingly di cult eighth grade year Notre Dame De Pere Catholic Middle School Wisconsin. One classmates, “Student B,” repeatedly inappropriately targeted 2803 A sexually suggestive beginning in fall and continuing into spring As a result bullying, Jauquet brought this suit on behalf herself and daughter, alleging violations by operator students’ school, Defendant Green Bay Area Catholic Education, Inc. (“GRACE”), well as breach contract and negligence under Wisconsin state law. dismissed claim prejudice for failing state and declined continue exercising supplemental jurisdiction over law claims. This ap peal followed.
For reasons explained below, rm court’s dismissal order.
I. Background
Over course several months between and Student B subjected Student A vile o ensive bullying, both in online. As described in complaint, Stu dent B began harassing Student A weekend trip September During trip, B repeatedly called A “slut” “skinny bitch” encour aged other classmates do same. On other occasions, Stu dent ridiculed weight appearance, cluding telling other classmates group chat Snap chat (an app known ability send disappearing mes sages ) “would hot” if she “weren’t pounds.”
‐ Student A and her mother did initially report har assment o cials, Student feared retaliation Student B and his friends. Jauquet, however, requested meeting with principal, Molly Mares, when Jau quet discovered sexually suggestive and vulgar posts Stu dent B’s Instagram account, another social networking ser vice. Though these particular posts were targeted her daughter, Jauquet concerned graphic nature posts. Jauquet also learned Student B texted picture exposing his naked genitalia female student another school; photo made way back students Notre Dame, who then widely shared picture. When Jauquet met with Mares December Mares agreed posts shared images were unacceptable.
After Jauquet’s meeting Mares, Student B escalated his cruel vicious campaign Student A. Days fore winter vacation, Student B told his classmates they should “buy [Student A] rope teach use it,” insinuating girl should hang herself. These comments caused experience “serious emotional distress” she emailed mother middle day help. Mares met Jauquet B’s parents same day. alleges Mares “coached” Stu dent B into giving “rote” apology A. Mares suspended three days, fell nal three days before winter vacation.
Create Snap, Snapchat, h ps://support.snapchat.com/en US/a/capture snap). Dancel Groupon, Inc.
Unsatis ed with the lack “any protective restorative measures other victim services” for Student A, Jauquet met with the President GRACE, Kim Desotell, and the school’s police liaison the next day. When the police liaison denied she had jurisdiction over ma tt er, Jauquet led com ‐ plaint Brown County Sheri ’s O ffi ce, and Sher ‐ i ’s O ce issued juvenile citation to Student B.
Frustrated by what Student A’s family saw an inade ‐ quate response from Notre Dame and GRACE, Student A’s grandfather sent multiple emails to and diocese lead ‐ ership about situation. Jauquet also threatened to pull Stu dent A her sister from school. Desotell responded forwarding necessary transfer paperwork to Jauquet.
Ultimately, Student A her sister remained Notre Dame, mother continued press Desotell to take stronger measures protect daughter from bullying school. response, Desotell sent email all eighth grade boys explaining would tolerate bul lying. Desotell further o ered move Student A’s seat away Student B’s. Desotell maintained had o ered victim services A, because Student A did appear need them—she said she was doing “okay now” during meeting. So Jauquet’s urging, Des otell met again, complaint acknowl edges “helpful” some degree. also al leges, however, Desotell used meeting criticize Jauquet family Ms. Jauquet particular “coach[ing] daughter more emotional.”
Beyond about interactions between Stu dent B, explains bullying part pa ern behavior B. Two years prior, B bullied another male student using anti LGBTQ slurs. In another example, referred student su ff ering from cancer as “the hunchback Notre Dame.”
The complaint describes school policies and practices Plainti ff believe foster “boys will be boys” atmosphere the school. The complaint accuses “cultural tol ‐ erance improper some cases illegal male sexual be ‐ havior under the traditional mantra ‘boys will boys.’ ” The complaint suggests the school imposes more restrictive dress code on girls than boys evidence accom ‐ modating “rape culture” whereby “male students ex pected bear responsibility controlling sexual arousal or keeping their sexual behaviors within accepted moral legal boundaries.” addition, complaint alleges tolerates both poor academic performance “obscene, dis respectful, disruptive behaviors” from boys tolerate girls. This situation “emboldens students like [Student B] escalate harassing behaviors, including sexual ones.” district court dismissed Plainti s’ claim nd
ing “fail[ed] allege delib erately indi erent alleged harassment” “al legations [were] too vague inde nite claim sexual discrimination part school.” On appeal, challenge district court’s dis missal their two reasons. First, they argue impr operly narrowed claim di rect discrimination Notre Dame. Second, they argue court’s ruling indirect discrimination contrary pled complaint. *6 6 20 2803
II. Discussion
We review court’s dismissal de novo, decision to dismiss claim prejudice an abuse discretion. Haywood v. Massage Envy Franchising, LLC , 887 F.3d 329, 333, 335 (7th Cir. 2018). Court may af fi rm on any ground supported record. Id. ; see Sand ers v. Venture Stores, Inc. , 56 F.3d 771, 773 (7th Cir. reviewing motion to dismiss based on Federal Rule Civil Procedure 12(b)(6), Court “construe[s] all any reasonable inferences light most favorable plainti .” Dix v. Edelman Fin. Servs., LLC , 978 507, 512 (7th Cir. 2020) (per curiam). “[W]hile need ‘detailed factual allegations’ survive 12(b)(6) motion dismiss, must allege su cient ‘to relief plausible face.’” Id. 512–13 (quoting League Women Voters Chicago v. City Chicago 722, (7th Cir. 2014); Bell Atl. Corp. v. Twombly U.S. 544, (2007)). At motion dismiss stage, plainti must set forth “adequate factual detail lift [their] claims from mere speculative possibility plausibility.” Schillinger v. Kiley Ashcroft Iqbal U.S. (2009)). A. Whether correctly dismissed
Title IX provides that: “No person United States shall, basis sex, be excluded participation in, be denied ts of, subjected discrimination under any education program activity receiving Federal nancial assistance.” U.S.C. § 1681(a). “The Supreme Court has terpreted provide individual 20 ‐ 2803 7 implied private right of action pursue claims of gender dis crimination federal court and has recognized number of constitute discrimination . ” Doe v. Columbia Coll. Chicago , 849, 854 (7th Cir. Cannon v. Univ. of Chicago , U.S. (1979)). plainti ff may allege “direct” “institutional” Title IX
violation by pleading facts show school itself dis criminated person on basis of their sex. See id. ff may also pursue theory of “indirect” discrimination way of student ‐ on ‐ student harassment is so severe harassment functionally excludes student school activities basis of sex. Davis Next Friend La Shonda D. v. Monroe County Bd. Ed. U.S. (1999). reviewed ff for both these theories Title discrimination found had alleged either theory. Indirect Sex Discrimination Davis Supreme Court held victims stu
dent student harassment could sue their school for dam ages if school had been deliberately indi erent severe pervasive school actual knowledge. U.S. “[R]ecipients [of federal funding] may be liable deliberate indi erence known acts peer sexual harassment.” Id. But, “[k]eeping mind how thoughtless even cruel children can one another, Supreme Court has interpreted both VI impose demanding standard holding schools o cials legally responsible one student’s mistreatment another.” Doe Galster 613–14 2014); see Columbia Coll. Chicago (noting de liberate indi erence “high bar”). First, *8 8 20 ‐ 2803 o cials must have actual knowledge of sex ‐ based harass ment. Galster , 768 F.3d at 613–14. Second, harassment must have been “so severe, pervasive, objectively o en sive can be said deprive victims of access opportunities ts provided by school.” Id . (quoting Davis , 526 U.S. at Third, school must have been deliberately indi erent harassment. Davis , U.S. at “To ensure school administrators continue enjoy fl exibility they require in making disci plinary decisions, will held liable unless response harassment is clearly unreasonable light of known circumstances.” Johnson v. Ne. School Corp. , 905, 911–12 (7th Cir. 2020) (internal quotations omi ed) (cit ing Davis , U.S. 648); Gabrielle M. v. Park Forest Chicago Heights, Ill. Sch. Dist. 824–25 (school’s response sexualized bullying victim student clearly unreasonable “in light each immedi ate disciplinary preventative steps [took] response [the bully’s] conduct[.]”). Supreme Court has cautioned cause action indirect limited. Allowing these kinds
suits “does mean recipients [of federal funds] can avoid liability only by purging schools actionable peer harassment administrators must engage particular disciplinary action.” Davis U.S. Moreover, victims do have “Title right make particular remedial demands. … fact, previously noted, courts should refrain second guessing disciplinary decisions made administrators.” Id. New Jer sey T.L.O. U.S. 342–43 n.9 (1985)); Gabrielle M. (same). 9
Here, the parties agree that deliberate indi ff erence is the only issue in dispute. GRACE has conceded that it is subject IX, GRACE does not contest that actual knowledge of the harassment. In motion dismiss, GRACE argued of Student did not rise level “depriv[ing her] access opportunities [and] ts provided school.” Galster F.3d at GRACE, however, has correctly abandoned line argument appeal; we agree with Plainti ff s cruel bullying was severe pervasive. See id. at 613–14. GRACE now agrees “‘[d]eliberate indi ff erence’ is [only] element issue this appeal.”
Although condemn Student B’s behavior, we agree with district not deliberately indif ferent A’s harassment. school responded promptly ff bullying complaints, not contain any bullying persisted beyond early January even though ff did le until April. Gabrielle M. (school did act deliberate indi erence as ma er law where promptly disciplined school bully). “This situation where school ‘learned problem did nothing.’” Johnson (quoting Rost ex rel. K.C. Steamboat Springs RE–2 Sch. Dist. 2008)). In case, o ffi cials sus pended primary perpetrator, B, several days December addition, met o ffi‐ cials several times, including once express purpose allowing voice concerns victim bully ing. School o cials o ered change seat class fa cilitated apology B. These acts all demon strate deliberately indi erent *10 10 20 2803 A’s harassment; school’s response harass ‐ ment was not “clearly unreasonable light known circumstances.” Johnson , 972 F.3d at 911–12; Gabrielle M. , 315 F.3d at 825. do not believe took su cient ac ‐
tion. But even if school’s response not as fulsome as parent would want child, “[a] neg ligent response not unreasonable, therefore will not subject liability [under IX].” Johnson , F.3d at 911–12. Here, seem particularly upset Stu dent not outright expelled Principal Mares “coached” him into issuing apology A. But, Da vis makes clear liability not give victims li cense demand particular remedial actions school. Davis , U.S. at Davis , Supreme Court speci cally warned courts not intrude upon decisions made cials. U.S. And this Court has recently empha sized point:
[W]e will second guess school’s disciplinary de cisions—even school’s decision impose any disciplinary measures—so long as those decisions clearly unreasonable. Indeed, judges “make poor vice principals.” And appropriate cases, courts can “identify response ‘clearly unreasonable’ as ma er law.”
Johnson Davis U.S. 648–49; Stiles ex rel. D.S. v. Grainger Cty., Tenn. 2016); Estate Lance Lewisville Indep. Sch. Dist. ‐ (5th Cir. 2014)); see also Karasek Regents Univ. Cal.
Here, court followed guidance dismiss ing Plainti ff s’ Title IX claim for student on student harass ment. Although recognize B’s inappropriate unacceptable comments made challenging years junior high even more stressful for A, school quickly disciplined B his bullying stopped. While it understandable Jauquet would preferred take even more decisive action punishing his behavior, require satisfy victim’s parent’s remedial requests. Direct Sex Discrimination also analyzed whether Plainti ff s al leged claim discrimination perpetrated directly GRACE but found Plainti “allegations too vague inde nite sexual discrimination on part school.” Cf. Columbia Coll. Chicago (plainti ff failed allege “facts could lead reasonable inference [the defendant school] denied him an t because his sex.”). contend culture Notre Dame
fosters environment discriminates female stu dents basis their sex. According complaint, generally permits “gender discriminatory policies practices that, addition direct impacts Plain ti ’s daughter, support sexual bullying allow fl ourish.” To these direct sex discrimi nation, point Notre Dame’s dress code, s maintain is more restrictive of girls’ clothing; to the higher academic standards girls are held compared boys GRACE; and GRACE’s tolerance of high level “obscene, disrespectful, and disruptive behavior[]” from boys it would not tolerate from girls. At oral argument, Plain ‐ ti pointed A’s experience Notre Dame as further support of discriminatory policies and practices.
“A [direct] discrimination requires plain ‐ ti ff allege (1) educational institution received federal fund ‐ ing, (2) plainti ff excluded from participation in or denied bene fi ts of an educational program, (3) educa ‐ tional institution in question discriminated ff based gender.” Columbia Coll. Chicago (cit ing Doe Purdue Univ. 2019)).
Here, parties do not dispute GRACE receives fed eral funding is subject IX’s requirements. With re gard second element exclusion from participation in or denial bene fi ts an educational program, com plaint does not specify what program bene t A able access because dress code di er ences school’s expectations students. fact, repeatedly emphasizes is an honor roll student suggest her academic status changed as result practices policies alleged. While possible general ma er school’s dress code, cul ture, response bullying could exclude student ts basis sex, pled facts this case support inference ex cluded because sex. alleged do reasonable inference ‐ particular plainti ff was excluded from the bene ts of an edu cational program. Schillinger at 994.
Even if ff were able to satisfy second element of a direct claim, fails to allege facts to contention that discriminated against basis of sex. At motion to dismiss stage, plainti must set forth “adequate factual detail to lift [her] claims mere speculative possibility plausibility.” Id. Iqbal U.S. at
In Columbia College dismissed male plainti ’s for failing state claim, where he alleged his college deprived him access his educa tion through its handling female student’s accusation sexual assault against him we rmed. at 854– 55. There, plainti ff accused discriminating him through its process handling sexual assault allegations after suspended plainti ff one year following formal disciplinary hearing, during plainti ff given an opportunity present exculpatory evidence. Id. 853. addition, plainti ff charged fostered an “anti male” campus culture through school’s approval various campus events showed commitment preventing remedying sexual violence. Id. But found “there [was] no way plausibly infer Columbia’s investigation adjudication tainted an anti male bias. [The ] fail[ed] allege particularized could lead reasonable inference [the school] denie d him t because his sex.” Id.
Here too, GRACE’s direct sex dis crimination too vague conclusory relief required by Federal Rule of Civil Procedure because there are insu cient facts “draw [a] reasonable inference that defendant is liable” Title IX sex discrimination. Schillinger , at 994. Although bullied Stu dent based on sex, complaint contains no facts a reasonable inference that school’s response impacted by A’s sex, or, more point, denied t through han dling B’s bullying based on A’s sex. See Columbia Coll. Chicago at 856. “A plainti ff cannot rely on [] generalized allegations alone, … but must combine them particular [her] case survive motion dis miss.” Id. at 855. complaint contains several other
direct discrimination are not supported by any facts. For example, alleges discriminates against female students by imposing more restrictive dress code girls than on boys. But does even say what dress code is. We previously recognized dress code can form basis Title violation, but mere existence dress code, by itself, evidence discrimination. See Hayden ex rel. A.H. Greensburg Cmty. Sch. Corp. Hayden we reversed court’s dismissal ’s based haircut policy requiring male basketball players wear short hair. Id. There, found did intentionally discriminate boys virtue short hair policy. Id. Hayden however, stand proposition di erences dress codes necessarily violate IX. id. (Manion, J., concurring part dis senting part). “[D]i ering grooming standards are dis crimination if they comparable.” Id. (collecting cases). Here, complaint did not specify what aspects dress code are more restrictive girls than for boys, either policy its enforcement. There are thus no facts can draw a reasonable inference dress code dis criminates female students. Schillinger
The complaint similarly devoid factual support its allegations holds female students higher standards academic performance behavior than male students. And contain permit a reasonable inference denied access ts because she allegedly held a higher standard academic performance. Without any fac tual show female students are treated di er ently than male students account sex, com plaint’s conclusory insu cient survive a motion dismiss. “Title IX requires systemic, substantial disparity amounts denial equal opportunity before nding violation statute.” Parker v. Franklin Cty. Cmty. Sch. Corp. (7th Cir. Davis U.S. 650). Plainti pled such case here. B. Whether district court abused its discretion dis
missing s’ claims with prejudice law claims without prejudice court did abuse discretion dismissing prejudice. “We will reverse court’s decision [to dismiss preju dice], when provides reasonable explanation why denied proposed amendment.” Gonzalez Koeneke West
Here, Plainti ff s made no e ff ort to amend their complaint or to add any speci fi cs to the complaint, the district court described as “vague inde fi nite.” Plainti ff did not seek reconsideration by the district court, seek leave fi le an amended complaint, or otherwise request an opportunity cure de fi ciencies their complaint. On appeal district court, they have not shown argued complaint could cured with additional could claim. Indeed, even oral argument, Plain ‐ ti s’ counsel asserted drafted was su ffi‐ cient. Under these circumstances, not an abuse dis cretion dismiss claim prejudice. Although leave amend ordinarily “freely given,” have “recog nized, many occasions, district court does abuse its discretion by denying motion leave amend when ff fails establish proposed amendment would cure de ciencies identi fi ed earlier com plaint.” Id. case, never even requested leave amend reconsideration before appealing district court’s order. As result, they demonstrated how they could cure complaint’s de cien cies, so dismissal prejudice unreasonable. “A court ‘abuse discretion failing order, sua sponte amendment [the complaint] [the plain ti ] never requested.’” Chaidez v. Ford Motor Co. 998, (7th Cir. 2019) (quoting Wagner v. Teva Pharms. USA, Inc. (7th Cir. 2016)).
Without federal case, ap propriately dismissed law without prej udice, thereby relinquishing subject ma er jurisdiction over remaining claims. O’Brien Vill. Lincolnshire (no abuse discretion declining exercise supplemental jurisdiction over state law claims); Williams Elecs. Games, Inc. Garrity (describing “sensible presumption” federal courts may dismiss law when all federal claims dropped out case prior trial).
III. Conclusion
For foregoing reasons, judgment FFIRMED .
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