Kiel Title IX Controversy

Case Name: Kiel Area School District Title IX Controversy

Type of Case: Freedom of Speech

Letter Issued: May 12, 2022

Current Status: On June 2, 2022, the Kiel Area School District “closed” a Title IX complaint and investigation against three middle school boys who were accused of sexual harassment for using “incorrect pronouns” when referencing a classmate.

Press Releases

KIEL DROPS TITLE IX COMPLAINT AGAINST MIDDLE SCHOOLERS AFTER WILL DEFENSE

July 2, 2022 | The Kiel Area School District “closed” a Title IX complaint and investigation against three middle school boys who were accused of sexual harassment for using “incorrect pronouns” when referencing a classmate.

Statement on Kiel Threats

May 27, 2022 | WILL President and General Counsel, Rick Esenberg, appeals for calm and an end to anonymous threats directed at Kiel.

WILL TO KIEL SCHOOLS: DROP TITLE IX COMPLAINT, INVESTIGATION OF EIGHTH GRADERS FOR USING “INCORRECT PRONOUNS”

May 12, 2022 | Attorneys with the Wisconsin Institute for Law & Liberty (WILL) issued a letter to administrators at the Kiel Area School District urging the district to drop a Title IX complaint and investigation against three eighth grade boys who are being accused of sexual harassment for using “incorrect pronouns” when referencing a classmate.

Background: Three eighth grade students in the Kiel Area School District were notified of a Title IX complaint and investigation for sexual harassment for using a biologically correct pronoun when referring to a classmate, instead of the student’s preferred pronoun of “they/them.” The District’s position appears to be that once a student informs others of alternate, preferred pronouns, any subsequent “mispronouning” automatically constitutes punishable sexual harassment under Title IX.

Sexual harassment, as defined in both Title IX and the Kiel Area School District’s policy, typically covers things like rape, sexual assault, dating violence, stalking, inappropriate touching, and quid pro quo sexual favors. None of that—or anything even close to it—is alleged in the complaint. While there is a catchall for “unwelcome conduct” that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education,” the mere use of a biologically correct pronoun, without significantly more, does not count, and if it did, it would violate the First Amendment. Schools of course can and should deal with teasing and bullying, but using so-called “incorrect pronouns” alone is not punishable, without more.

Further, the District failed to follow Title IX procedures and its own process. Both the District’s policy and Title IX regulations require notice of the allegations before beginning any investigation so that the accused has “sufficient time to prepare a response before any initial interview.” The District failed to provide a detailed notice of the allegations, instead providing only a generic letter, one day before the District sought to question the minor students, stating that the boys were accused of “using incorrect pronouns.” The District initiated its investigation and conducted interviews without first providing additional details or giving the boys and their families time to prepare.

WILL Action: On May 12, 2022, WILL attorneys issued a letter to administrators at the Kiel Area School District urging the district to drop a Title IX complaint and investigation against three eighth grade boys who are being accused of sexual harassment for using “incorrect pronouns” when referencing a classmate. WILL’s letter explained that the mere use of biologically correct pronouns not only does not constitute sexual harassment under Title IX or the District’s own policy, it is speech protected by the First Amendment.

Current Status: The Kiel Area School District “closed” a Title IX complaint and investigation against three middle school boys who were accused of sexual harassment for using “incorrect pronouns” when referencing a classmate.

In recent weeks, the District proposed various resolutions, but all within the Title IX framework. WILL and the families remained resolute in their position that the Title IX investigation was inappropriate and should be dismissed. WILL issued a follow-up letter to the District on June 2, making this clear. Hours later, the District relented and sent letters to the boys while announcing the investigation was “closed.”

WILL intends to follow up with the District to ensure that the Title IX sexual harassment complaints are removed from the boys’ academic records.