By Luke Berg
As readers may be aware, in the spring of 2022 my colleagues and I at the Wisconsin Institute for Law & Liberty (WILL) represented three eighth-grade boys who were accused by the Kiel Area School District of “sexual harassment” under Title IX for “mispronouning.”
As we pointed out, “mispronouning” does not violate Title IX and is not “sexual harassment” under any reasonable definition of that term, and punishing students for their speech violates the First Amendment. The district had also violated Title IX’s clear procedural requirements. We urged the district to drop its misguided investigation, and it ultimately did.
Last summer, after this was all over, Mario Koran at Wisconsin Watch published an article suggesting that we had misrepresented the situation. Though untrue, we ignored it at the time. Koran, however, continues to accuse us of painting an “incomplete narrative,” most recently in the piece published on Jan. 24. He claims that this was really about bullying and we “withheld” that. His accusation is flatly contradicted by both the District’s charging document and our letter. Here’s what they actually say.
The entire basis for the “formal complaint of sexual harassment” sent to the boys and their parents was “mispronouning.” There was no reference to “bullying” or forms of conduct other than “mispronouning” in that complaint. You can see that complaint here. In the very first letter that we sent challenging the complaint, we acknowledged that there was a page and a half of “notes” from a music teacher attached to it and that these notes described “a few isolated incidents of teasing and arguments between the 8th grade students in question” – as is common in middle school – but the teasing went in both directions and did not come remotely close to anything that could be characterized as “sexual harassment.” Most importantly, the District never contended that it did. Had there been something more serious than ordinary middle-school banter, the formal complaint would have listed more than just “mispronouning” in the “allegations” section. It did not.
So not only did we not “hide” these accusations, we acknowledged them in the very letter challenging the District’s complaint. In other words, Koran now claims he “uncovered” something that we pointed out from the beginning.
Whatever certain district staff might want the public to believe now, until we got involved, their position clearly was that any “mispronouning” is automatically punishable “sexual harassment” under Title IX. Indeed, one of the examples given in the music teacher’s notes was one of the boys defending another student and saying, “what if he doesn’t want to call you by the pronouns. He doesn’t have to.”
If there is any doubt, what happened after proves there was no other “there” there. After we sent our initial letter, the district and their lawyer spent three weeks trying to save face by proposing various “informal resolutions” within the Title IX framework, while we remained resolute that the Title IX investigation was inappropriate and should be dismissed. On June 2, we sent a follow-up letter explaining that the district either needed to drop the investigation or go through with it, but then it needed to actually follow the Title IX process. Just a few hours later, the district dropped its investigation. The district still would not admit it had done anything wrong and blamed the students and external threats (which we repeatedly condemned), but the district’s unwillingness to follow through with their “mispronouning” complaint, after they had been called out, speaks volumes.
“Mispronouning” is not “sexual harassment” and it is not a violation of Title IX. Because the District alleged no other form of misconduct, there was no need to include it in the “narrative.” As for the minor incidents between the students in the notes, the very letter that we sent challenging the District’s complaint acknowledged and addressed those. Koran has “discovered” a “narrative” that we told him, and everyone else, about.
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Luke Berg is Deputy Counsel at the Wisconsin Institute for Law & Liberty.
Photo “Kiel Middle School” by Kiel Area School District.
