Lawsuit Against Kiel School District

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
A.W. a minor, individually

By and through their Parents,
AMY WEMPNER and DAN WEMPNER
Case No. 1:22-cv-1178
v.
KIEL AREA SCHOOL DISTRICT,
Defendant.
COMPLAINT
NOW COMES PLAINTIFF, A.W., individually, by and through their parents AMY
WEMPNER and DAN WEMPNER, by their attorneys McDonald Legal Practice by Joseph
McDonald and by Gingras, Thomsen, and Wachs, by Robert J. Gingras and Kimberly D. Sweatt
hereby state and allege as follows:
PROLOGUE
On July 27, 2020, Amy Wempner, Dan Wempner, and A.W. reported that student-on-
student racial harassment and bullying to Athletic Director Steve Walsh. Upon investigation,
KASD determined that bullying did occur and, with the involvement of the ACLU and the
Wisconsin Department of Public Instruction (DPI), KASD agreed to a Stipulated Corrective
Action Plan. The KASD school board knowingly delayed the implementation of the CAP and
failed to fulfill the conditions of the CAP within the agreed upon timeline. During this delayed
period, other students, including the Wempner’s son, M.W., were victims of racial bullying as
well. Some of the following allegations are discrete incidents, whereas others can be consolidated
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Case 1:22-cv-01178-WCG Filed 10/04/22 Page 1 of 27 Document 1
into a general allegation that a racially hostile environment was created and maintained. KASD
acted deliberately indifferent to the racially hostile environment in violation of Title VI.
PARTIES
1. Plaintiff A.W., a minor, individually, by and through their parents, Amy Wempner
and Dan Wempner, is a resident of the State of Wisconsin and currently resides in Kiel, Wisconsin.
At all times relevant to this Complaint, Plaintiff A.W. did and currently resides in the Eastern
District of Wisconsin.
2. Defendant, Kiel Area School District (“KASD”), is a public education school
district and governmental entity created under Wisconsin Stat. § 118, et. seq. At all times relevant
to this Complaint, KASD is a publicly funded school district and government entity as those terms
are used under Title VI. At all times relevant to this Complaint, KASD was engaged in the
management and government of said school district and was responsible for the actions of its
employees and for developing and implementing official policy for the district and for protecting
its students and supervising staff.
JURISDICTION AND VENUE
6. This court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 for the
Title VI claims.
7. These claims may be venued in the Eastern District of Wisconsin pursuant to 28
U.S.C. § 1391, insofar as all of the parties live and/or conduct business in the Eastern District of
Wisconsin, and the circumstances giving rise to this complaint occurred in this district.
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NATURE OF PROCEEDINGS
8. This is a Civil Rights claim brought under 42 U.S.C. 2000d et. seq. known as Title
VI of the 1964 Civil Rights Act seeking damages, costs, and attorney’s fees against the Kiel Area
School District.
FACTUAL ALLEGATIONS
9. Over the course of several years, A.W. was subjected to student-on-student racial
harassment and discrimination at the Kiel Area School District (KASD), including but not limited
to the incidents of racial harassment and discrimination set forth below.
10. The racial discrimination suffered by A.W. as a result of KASD’s deliberate
indifference occurred in the middle school and high school. Kiel Middle School teaches grades
fifth through eighth. Kiel High School teaches grades ninth through twelfth.
11. According to the National Center for Education Statistics within the U.S.
Department of Education, the Kiel Middle School reported four Black students among 333
students, three Black students among 352 students, and one Black student among 303 students in
the 2018-2019, 2019-2020, and 2020-21 school years respectively.
https://nces.ed.gov/ccd/elsi/default.aspx?agree=0 (last visited Oct. 4, 2022).
12. According to the National Center for Education Statistics within the U.S.
Department of Education, the Kiel High School reported five Black students among 416 students,
four Black students among 390 students, and five Black students among 322 students in the 2018-
2019, 2019-2020, and 2020-21 school years respectively.
https://nces.ed.gov/ccd/elsi/default.aspx?agree=0 (last visited Oct. 4, 2022).
13. A.W. identifies as African American.
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14. In August, 2017, Amy Wempner and Dan Wempner adopted A.W. and have been
his legal guardians ever since. Amy and Dan Wempner have four biracial adopted children enrolled
in KASD.
15. During the 2017-2018 school year, A.W. enrolled in Kiel Middle School as an
eighth-grade student under the guardianship of Amy Wempner and Dan Wempner.
16. Over the course of several evaluations, it was determined that A.W. suffered from
dyslexia and PTSD. As a result, A.W. was provided with an Individualized Education Plan (IEP).
17. During the 2017-2018 school year, A.W. played sports at Kiel Middle School.
18. During the 2018-2019 school year, A.W. attended Kiel High School where he
played varsity football as a freshman. At some point, A.W. was invited to a SnapChat group for
Kiel High School football players, run and maintained by the student athletes of Kiel High School.
19. Several unreported incidents of student-on-student racial bullying occurred.
20. In October 2019, a student football player, R.L., called A.W. “nigger” during class.
A teacher heard the slur and reported it to the administration for investigation.
21. Upon information and belief R.L. was suspended for a couple of pre-season
scrimmage football games, but otherwise faced no consequences for calling A.W. a racial slur.
22. As a result of the athletic suspension, a large group of students, including students
on the football team, retaliated against A.W., by starting a “Free R.L.” campaign in opposition to
his suspension and proponent of the open use of the word “nigger.”
23. In March 2020, a student football player posted a photo of President Barack Obama
with the subtitle, “The Nigger Pass” in the SnapChat group for Kiel High School football players.
24. On July 24, 2020, Amy Wempner discovered racial comments within the student
athlete SnapChat group regarding A.W. and an Asiann student that read:
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J.R.: Did [A.W.] delete snap
Cause he’s gone
...
J.V.: It’s because he’s black
R.L.15 he’s here you just can’t see him
It’s getting dark out
J.V. I can only see teeth and eyes
D.H. teeth, eyes, and handcuffs
J.V. Ah forgot about the handcuffs
[Image of black face mask with the words “Thanks China”]
Everyone buy this for school
R.L. lmfao
D.H. can I change the word China to Chinks
J.V. Yes
R.L. Yeah fuck that dragon kid
Came dressed like a highlighter this morning
J.V. He’s goona (sic) be the one to bring it
26. On July 24, 2020, Amy Wempner emailed KASD Athletic Director Steve Walsh,
to report the statements. Mr. Walsh responded that he could meet with her on July 27, 2020.
27. On July 27, 2020, Amy Wempner met with Mr. Walsh and recounted the bullying
statements made to and about A.W. Mr. Walsh responded that, he was not surprised “[I] had been
waiting for something like this to happen,” and, “these kids have no filter.” During that meeting,
Mr. Walsh recommended that, “a transfer [out of the district] would probably be best for A.W.”
28. On July 29, 2020, Amy Wempner emailed Head Coach of the Kiel High School
football team, David Esswein, to request a meeting with him, A.W., and herself. Ms. Wempner
also informed Mr. Esswein that A.W. would not attend the morning workout. They agreed to meet
on July 30, 2020. Head Coach David Esswein advised A.W. to cease attending practices and not
to attend the Kiel Football Alumni Golf Outing, but if he wanted to be on the team, he would have
A.W.’s jersey at the golf outing for him. Coach Esswein recommended that The Wempners transfer
A.W. to the Fond du Lac School District, because that school district is more diverse than Kiel.
29. On July 30, 2020, Amy Wempner emailed Superintendent Brad Ebert to request a
meeting. They agreed to meet the following Monday.
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30. On July 31, 2020, Amy Wempner emailed Superintendent Ebert notifying him that
on July 24, 2020 she discovered that racist remarks were made toward and about A.W. in the
SnapChat group for Kiel High School football players. She also notified Superintendent Ebert that
A.W. was invited to the Kiel Football Alumni Golf Outing but A.W. felt uncomfortable attending
the event because the three offending students, J.V., R.L., and D.H. would be in attendance. Ms.
Wempner communicated to Mr. Ebert that, “absolutely every staff member I have approached has
said that they are not surprised at the racist remarks. This is an incredible statement on the culture
of the district. A district where my husband and I have three more children enrolled. All minorities.
My son has endured racism in the Kiel School District since he arrived.”
31. On August 3, 2020, Amy Wempner emailed Middle School Principal Deb Sixel
because A.W. was being retaliated against for complaining about racial harassment in the school.
Specifically, Ms. Wempner notified Principal Sixel that student A.K. sent A.W. a snapchat
message stating, “if this is u or ur mom I’m asking to talk to you about this if this is about racism
why have u not brought this up before And are u for real leaving the rest of us to then.”
32. On August 3, 2020, Ms. Sixel responded in an email, “Thanks, Amy. I would agree,
at this point not to respond. I did just finish the meeting with Vogels around 5:30. The parents are
certainly upset and have put in some consequences themselves. I suggested that she look at
SnapChat. I will be following up on a few others (Conner Meyer) tomorrow.”
33. On August 6, 2020, Amy Wempner met with Principal Sixel. After the meeting,
Ms. Wempner emailed Principal Sixel thanking her for the meeting, and asking about options as
the family considered a transfer out of the KASD. Ms. Sixel responded to her email and addressed
several issues, including a transfer out of KASD, how to educate the offenders, and discipline.
Specifically, with respect to a transfer out of KASD, Principal Sixel stated, “I really do feel that a
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smaller school, while certainly not perfect, provides an environment where yes, everyone knows
everyone, it can also be a more safe, supporting environment. People REALLY do care. I know it
doesn't feel that way right now.” In response to educating the offenders, Ms. Sixel stated, “I think
the boys in question and really the whole team, need more education with equity, inclusiveness,
and plainly- just what's acceptable and what isn't! - when brainstorming with Coach Esswein, who
I really feel wants to make a difference and change the culture, we talked a lot about the vision he
has for the team- we spoke about bringing in a speaker that the kids would find impactful--like a
"change agent" type of speaker, possibly from a college level- to share a personal story and get at
the heart and soul." In response to punishment, Ms. Sixel stated, “Dr. Ebert will be making a
decision regarding consequences and actions going forward. I plan to make recommendations in
my summary to Dr. Ebert about the HS culture, additional training, a zero-tolerance environment,
and additional focus on inclusiveness of ALL students- (disabilities, race, origin, etc.) We may
have work to do, but as I stated, I AM hopeful that there will be change.”
34. On August 7, 2020, Amy Wempner replied to Principal Sixel’s email and asked
about ways KASD can show A.W. that he belongs. Ms. Wempner offered ideas on what KASD
can do to create safer spaces for minority students. Ms. Wempner did not receive a response to this
email.
35. Between August 7 and August 11, 2020, with an understanding that no decisions
regarding a transfer out of KASD had been made, and that the matter would remain confidential,
during a team meeting Coach Esswein, without conferring with the Wempner family, informed the
football team that A.W. would be leaving and attending another school because he was racially
harassed.
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36. On August 11, 2020, Amy Wempner emailed Principal Sixel at 8:01 AM to request
an update about the status of the investigation. At 6:58 PM, Principal Sixel informed Ms. Wempner
that the investigation was complete, she met with Brad Ebert on Monday and, “this is still an active
investigation until [Mr. Ebert] closes it out and responds to all involved. I shared with him the
concern that the Coach may have said something at practice, he is looking into it.” Amy Wempner
requested a copy of the investigation report but was denied.
37. Due to the ongoing pervasive student-on-student racial harassment against A.W.,
which was not being addressed by KASD, The Wempners made the decision to transfer A.W. to
Fond du Lac High School.
38. At the August 19, 2020 KASD School Board Meeting, the School Board removed
the agenda item discussing the school’s bullying and harassment report. School Board Member
Meyer stated,
Reporting was very very low–specifically zero at the high school. I think we all
know bullying and harassment are always under-reported. An idea I heard from a
district more than several states away from us, and this could pertain to bullying
and harassment . . . is their district has an outside service that you contact. So if you
have a concern about confidentiality, if you’re concerned about repercussion, either
as a student or as a staff member, there’s a number you can call to assert a
complaint. In my opinion, I think that is something we can explore for the safety of
our staff and for the benefit of our staff and safety of our students.
The Board scheduled a future agenda item to discuss “mitigation strategies and myths about
harassment.”
39. On August 20, 2020, A.W. wrote a letter to the Wisconsin Interscholastic Athletic
Association (WIAA) for varsity waivers, which explained his circumstances at the time.
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40. On August 20, 2020, Amy Wempner also wrote a letter to the WIAA advocating
for varsity waiver on behalf of A.W. where she explained the racial harassment and bullying and
KASD’s lackluster response to A.W.’s safety.
41. On August 24, 2020, Amy Wempner requested a copy of the KASD’s final decision
pursuant to District Policy 5517.
INVOLVEMENT OF THE ACLU AND DPI
42. On September 18, 2020, Amy Wempner submitted a complaint to the Wisconsin
Department of Public Instruction (DPI) stating in relevant part, “The Kiel School District
mishandled a claim of harassment (racial) that was filed in August of this year. There were multiple
incidences of mishandling. I have contacted an attorney to work with our family. I am requesting
a briefing scheduled.”
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43. On October 6, 2020, Amy Wempner emailed the KASD School Board (hereinafter,
“the Board”) with a letter from the ACLU detailing the current state of teaching race in Wisconsin.
44. On October 16, 2020, Superintendent Ebert emailed the community to invite them
to a discussion with the City of Kiel discussing culture, race, and diversity in the Kiel area.
45. On October 19, 2020, Paul Sherman of DPI emailed Amy Wempner to inform her,
“The department is in receipt of the Kiel School District’s response to Ms. Wempner’s pupil
nondiscrimination appeal. In Ms. Wempner’s September 28, 2020 letter, four issues were
identified for resolution, one of them being compliance with PI 9.04. It appears the district agrees
it did not fully comply with the provisions of PI 9.04 and has begun corrective action. The
department will review the district’s corrective action on this issue to determine whether it is
sufficient to ensure future compliance.”
46. At the October 28, 2020 KASD School Board Meeting, the School Board approved
policies 2260 and 5517.
47. On December 21, 2020, Attorney Lori Lubinsky, representing KASD, submitted
an initial proposed settlement that, in part, called for Amy Wempner to waive her private right of
action in the matter.
48. On January 8, 2021, Amy Wempner rejected the proposed settlement offer and
opted for a hearing with DPI.
49. On January 12, 2021, Amy Wempner and Dan Wempner signed the Stipulated
Corrective Action Plan (CAP) (No. 20-PDA-03). Superintendent Ebert, on behalf of KASD,
signed the CAP on January 13, 2021. The DPI Complaint was dismissed with prejudice. All parties
agreed that DPI would monitor and enforce the CAP. The CAP is attached to this Complaint as
Exhibit A, and its contents are fully incorporated herein.
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TERMS OF THE STIPULATED CORRECTIVE ACTION PLAN
51. Item 1 of the CAP states: The District will consult with one or more of the following
organizations (assuming one of these organizations agrees to serve as a consultant) to plan for and
implement the action steps described in Paragraphs 2 and 3 of this agreement: (a) Great Lakes
Equity Center, (b) ICS Equity, (c) Culturally Responsive School Leadership Institute. DPI
MONITORING: The District will provide DPI with confirmation of selection of its
consultant(s) within 30 days after the consultant is contacted.
52. Item 2 of the CAP states: The District will identify and implement a research-based
curriculum that educates students in all grades in the district about racism and harassment and how
to oppose such actions. Such curriculum shall begin to be implemented no later than the second
semester of the 2021-22 school year. DPI MONITORING: The District will provide DPI with
confirmation of implementation of such curriculum within 30 days after the curriculum is
selected.
53. Item 3 of the CAP states: The District shall identify a qualified individual or
organization with expertise in restorative justice and racial harassment to train District
administrators and staff on how to prevent and respond to student racial harassment using
techniques consistent with the policy revision provided in Paragraph 5.a., below. Such training
shall be provided before or in connection with the start of the 2021-22 school year. DPI
MONITORING: The District will provide DPI with confirmation of completion of such
training within 30 days after the training is completed.
54. Item 4 of the CAP states: The District will place the following language
prominently on its website and keep it there at least until the beginning of the 2021-22 school year:
"The Kiel Area School District has a strong commitment to an anti-racist learning and work
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environment. Racial discrimination and harassment are unacceptable and prohibited. The District
has policies that address this commitment, and will be reviewing and revising these policies in
2021 to strengthen this commitment. In addition, the District will provide training to ensure that
staff know how to try to prevent and respond to student behavior that is contrary to these policies,
and how to support students who experience discrimination or harassment. Through these efforts,
we will reinforce our goal that all students and staff feel welcome and know that our differences
do not divide us but make us stronger." DPI MONITORING: The District will provide DPI
with confirmation [] that such language has been placed on the District's website within 30
days after it is posted.
55. Items 5 of the CAP states: The District will make the following revisions to its
board policies and athletic code before the start of the 2021-22 school year: (a) Revise PO5517,
Student Anti-Harassment, and the District Athletic Code to include the following language: "When
school administrators determine a student has racially harassed another student, the student will
be provided with training and/or programming to educate the student about the impact of their
actions on others through such practices as restorative practices, mediation, role play or other
explicit policies or training resources. This policy emphasizes the district's position that racial
harassment, and retaliation for reporting such harassment, is unacceptable and prohibited."
(b) Revise PO5517, Student Anti-Harassment, and PO2260, Nondiscrimination and Access to
Equal Educational Opportunity, to include the following language: i. "When a student or parent
notifies a staff member, teacher, coach, or district administrator of conduct that may constitute
racial discrimination or harassment, the district shall inform that student or parent of the right to
file a formal complaint and shall provide information about complaint procedures." ii. "Written
complaints made under this policy should be signed by the complainant. The District shall ensure
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that oral complaints are reduced to writing and signed by the complainant. However, a
complainant's refusal or failure to sign a complaint made under the policy will not delay or
preclude investigation of the complaint. The CO should document that the complainant was asked
to sign the complaint and that the complainant refused or failed to do so."
(c) Revise P055 l 7 to include the following language: "Any act of retaliation against a person who
has made a report or filed a complaint alleging unlawful harassment, or who has participated as a
witness in a harassment investigation is prohibited. Acts that constitute retaliation include but are
not limited to: harassing, confronting, or threatening a person about a harassment report; making
a false report or filing a false complaint against a person who made a report; or interfering with a
harassment investigation. All rep011s of retaliation shall be taken seriously and investigated.
Where school administrators determine that a person has retaliated against a student for making a
report of harassment or filing a harassment complaint, the person will be provided with training
and/or programming to educate the person about the impact of their actions on others through such
practices as restorative practices, mediation, role play or other explicit policies or training
resources." DPI MONITORING: The District will provide DPI with confirmation of School
Board approval of the revised policies within 30 days after the Board adopts the revised
policies.
FAILURE TO IMPLEMENT THE CORRECTIVE ACTION PLAN
56. On February 24, 2021, Brad Ebert sent an email to the school community stating,
“Unfortunately, we have seen an increase in students reporting inappropriate jokes, comments and
gestures being made about race and individuals with disabilities. Due to the increase in reports,
the middle school and high school principals will be addressing each classroom regarding bullying
and harassment; the district will not tolerate these types of jokes, comments and/or gestures and
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will fully investigate each report and appropriate consequences will be given. As a school district
(parents, students, staff, community, school board, etc.), what can we do about this? One thing
that we can do is become a district of UPSTANDERS; this means that when we hear or see
something inappropriate, we address it (which could mean reporting it or asking the individual to
stop the behavior), versus standing by and allowing it to happen. If we can collectively commit to
this, I believe that we have a chance to meet our goal of ensuring that everyone feels accepted,
included and supported."
57. On July 28, 2021 Brad Ebert emailed the school community responding to the
communities’ concerns regarding the role of race in the curriculum. In said email, Mr. Ebert stated:
Over the last year, the district received several harassment/discrimination

complaints from students and their parents, including one complaint that was filed
with the Department of Public Instruction (DPI). As the district worked through the
DPI complaint, the district collaborated with all parties involved to resolve the
issues in the complaint. Our efforts resulted in an agreement that was approved by
DPI, which requires the district to take certain actions.
One of those required action steps involves the district working with an outside
organization that specializes in research-based practices and curriculum to provide
our educators and administration with the tools to effectively and appropriately
oppose racism and harassment, not bring in critical race theory, which seems to be
the concern of some in our community. The agreement identifies three groups as
having the expertise to work with our district. The administrative team interviewed
two of the three groups and selected the Great Lakes Equity Center. Based on
feedback that the school board has received, the curriculum committee was directed
to review this selection at its August 11th meeting.
Typically, district administration works together to resolve complaints and

communicates with the school board during the process, however, given the
discussions in the community, I am now sharing this general information to explain
the reason the district is taking these action steps at this time. However, no specifics
of the DPI complaint or other complaints will be shared due to confidentiality
reasons.
Some have questioned whether our efforts are creating the potential for the
inclusion of critical race theory into our classroom instruction. As I have previously
shared, incorporating critical race theory has not been discussed at the
administrative or board level. However, our curriculum does include teachings on
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race, bias, cultural perspective, points of view, etc; these are pieces of the required
State Standards.
58. On August 4, 2021, Tri-County Citizens, an incorporated entity registered on
August 9, 2021 by Katie Wimmler, set up a tent on Main Street in Kiel, Wisconsin urging
individuals to attend the August 11, 2021 curriculum meeting and to sign a petition to oppose
Critical Race Theory.
59. On August 5, 2021, the school district scheduled a harassment training for August
13, 2021 provided by the District’s usual law firm.
60. On August 11, 2021, the Curriculum Committee operating under the KASD School
Board discussed Critical Race Theory and the role of the Great Lakes Equity Center. Dr. Ebert
opened the meeting by stating:
Over the last year, the District has received several harassment and discrimination
complaints . . . from students and their parents, including one complaint that was
filed to the Department of Public Instruction. Of the eleven complaints submitted,
allegations included racist comments, jokes, social media posts, slurs, use of the N-
word, and disability-related concerns. . . . The Memorandum of Understanding
(“MOU”) with Great Lakes references equity-focused curriculum decisions which
will focus only on racism and harassment and how to oppose it–not bring in critical
race theory, which is something I’ve tried to communicate many times. Due to the
fact that our work with Great Lakes was stopped, we have not even had the chance
to discuss what research-based practices they would offer to oppose racism and
harassment. . . . Critical Race Theory has not been discussed at the administrative
or board level. However, our curriculum does include teachings on race and bias
and cultural perspectives. These are pieces of the required state standards. . . . The
plan in working with any group in regards to professional development is not for a
group to rewrite our curriculum or tell us what we have to do. Rather provide
thoughts and research-based ideas for us to consider.
The discussion continued:
Speaker: Is there a chance to re-interview the two groups or three groups and ask
specific questions as to what they want to deliver and how they want to deliver it?
Whats included in there? Presentations? What’s not included?
Brad Ebert: Certainly. Yep. Yes. And I would assume too that there is room to
take the MOU and change it to any specificity that we want, whether it's with this
group or another group.
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The Curriculum Committee submitted a recommendation to the KASD School Board to
postpone working with GLEC until the other groups can be interviewed for the express purpose of
re-negotiating the MOU to, “narrowly focus on those issues–on what we feel should be included
and what should be excluded.” Once re-negotiated, work with GLEC shall be terminated.
In discussing what the future MOU would state, Curriculum Committee members
suggested, “narrowly focusing the MOU on bullying and harassment” and, “take out any reference
to curriculum, teaching and learning.”
61. On August 11, 2021, the KASD School Board suspended further discussion with
GLEC, directed the KASD administrators to renegotiate the agreement with the Wempner family
and DPI, directed the Curriculum Committee to develop an MOU, and tabled the revisions to the
athletic code until the next meeting for clarification on training. KASD School Board member
Randy Olm moved the Board to, “develop a policy that race based ideologies such as critical race
theory, and its affiliated ideas are not permitted within the curriculum of KASD.” The motion died
for lack of a second.
62. On August 13, 2021, the District canceled the scheduled harassment training for
staff.
63. On September 6, 2021, in response to a September 4, 2021 email where Amy
Wempner raised concerns regarding the removal of race-related books in the library, including
books about George Floyd, Black Lives Matter, racial equity, and racial justice. Brad Ebert stated
that, “a group of new books were ordered this summer and I have asked to take a look at them as
a step in the process to see how they fit into the work our district is currently doing regarding
racism and harassment.”
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64. At the September 15, 2021 KASD School Board Meeting, the School Board
approved the revision of Student Anti-Harassment Policy 5517 as originally submitted. The School
Board also met with legal counsel in executive session to discuss oral or written advice concerning
a strategy to be adopted by the Board with respect to settlement of a student discrimination and
harassment complaint. The School Board took no action at the Board Meeting in furtherance of
this discussion.
65. On September 22, 2021, the KASD School Board interviewed the Midwest and
Plains Equity Assistance Center (MAPS) and Integrated Comprehensive Systems (ICS) during a
special board meeting.
66. On September 29, 2021, Brad Ebert followed up with Amy Wempner stating, “In
regard to the books, I was directed by the School Board that as part of this work, any new resources
going forward, will be reviewed by the curriculum committee and the full board [for approval],
prior to being put into circulation into the schools”
67. At the October 6, 2021 KASD School Board Meeting, the School Board, “selected
MAPS to work within the forthcoming Board’s MOU to provide research-based strategies to staff
on racism and harassment and how to oppose it.” KASD School Board Member Phil Schafer said
“MAPS will benefit all students. ICS is a prescribed methodology.”
68. On October 14, 2021, the Curriculum Committee finalized the MOU.
69. On October 20, 2021, the KASD School Board approved the revised MOU with
MAPS. KASD School Board Member Randy Olm abstained.
70. On or about November 15, 2021, Brad Ebert announced that the KASD School
Board will not move forward with GLEC due to the community’s pushback and the
implementation of the deadline will be extended to the 2022-2023 school year.
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71. At the December 1, 2021 KASD School Board Meeting, the School Board
approved the revised MOU with MAPS. Again, KASD School Board Member Randy Olm
abstained.
72. On January 7, 2022, M.W., a Hispanic student experiencing autism, left his seat to
get colored pencils. Two white students–L.M. and C.S.–knowing that he was non-white and
cognitively disabled, cornered M.W. and blocked him from returning to his seat. L.M. and C.S.
said the first syllable of the word ‘vinegar’ and pressured M.W. to complete the word, ostensibly
bullying him into saying the word Nigger. M.W., after refusing to complete the word, succumbed
to pressure and said the second syllable. He immediately recognized what he had said and reported
the incident to a teacher.
73. On January 11, 2022, Amy Wempner filed a student harassment complaint.
74. On January 13, 2022, M.W. experienced retaliation for making a complaint about
racial harassment. Specifically, he overheard B.G. and L.N., two classmates, discussing the
confidential complaint with the offending students L.M. and C.S. A close female friend told M.W.
that she could no longer be friends with him (M.W.).
75. On or about January 8, 2022, School Board member Robert Jones passed out fliers
advocating for the election of Jamie Henschel, Mike Joas, and Diana Schaefer who were running
on an anti-CRT platform. He stated:
Using this ridiculous platform [referring to CRT] to discuss race in American life
always leads to the conclusion that all white people are racist and that white people
have arranged everything to deny successful outcomes from 'people of color' . . . .
CRT is racism and is very divisive. . . . While [CRT] sounds ridiculous and stupid,
it is being pushed at all levels of the American Education System. Wasting any time
on CRT or other similar topics partially explains why test scores for reading,
writing, and mathematics continue to decline. . . . I have discussed the current issues
with the following candidates and they share my concerns. They are: Jamie
Henschel, Mike Joas, Diana Schaefer. I hope you will vote for them on February
15 and April 5th.
18

76. On February 4, 2022, Brad Ebert concluded an investigation into M.W.’s report
and decided that, “M.W. was being harassed by his fellow students . . . in violation of Board Policy
#5517, ‘Student Anti-Harassment.’”
77. On February 4, 2022, despite Amy and Dan Wempner’s disapproval of an
extension, DPI Assistant State Superintendent Paul Manriquez granted KASD's request to extend
the fulfillment of the CAP in the following ways: The CAP, and DPI’s Order adopting the same,
is revised as follows: (1) The research-based curriculum that educates students about racism and
harassment and how to oppose such actions shall be implemented no later than the commencement
of the 2022-23 school year. (2) Kiel shall provide to DPI the consultant’s findings regarding its
staff training as soon as they are available. (3) Beginning March 1, 2022, and continuing on the
first of each month thereafter, Kiel shall provide DPI and Complainant with an update on the
progress of its work with its consultant. Any further non-compliance by Kiel with the CAP will
result in penalties from DPI, which may include, but are not limited to: voiding of the stipulated
CAP and resolution of the appeal on its merits, which may result in the imposition of further
corrective action; or the withholding of funds under DPI’s general supervisory authority.
78. On February 8, 2022, DPI Attorney Ben Jones stated that “The DPI’s authority to
issue and enforce the CAP is set forth under Wis. Admin. Code s. PI 9.08, as promulgated under
its authority in Wis. Stat. s. 118.13. The DPI issued a Corrective Action Plan and Dismissal Order
on January 15, 2021. In issuing the Corrective Action Plan, the DPI adopted the CAP as its own
order, which it may modify in its discretion. KASD requested a modification of that order which
the DPI granted. The DPI intends to hold KASD to its commitments, which the DPI concluded is
most likely to occur with the extension of time."
19

79. Sometime in March 2022, a news outlet stated, “Dr. Ebert presented a power point
program explaining the professional development training that the KASD staff will be receiving
from KASD administration and staff–not from MAPS staff.”
80. On or around late March 2022, prior to the April 5, 2022 School Board election,
KASD School Board Member Randy Olm, in alignment of KASD School Board Member Robert
Jones endorsement, sent a letter to the community supporting the election of Jamie Henschel, Mike
Joas, and Diana Schaefer who were running on an anti-CRT platform.
20

21

81. On April 5, 2022, the three anti-CRT board member candidates were elected.
22

82. On April 6, 2022, Brad Ebert led the Curriculum Committee through a professional
development training to oppose racism and harassment. The training was not attended or presented
by any professional from MAPS. At the April 6, 2022 KASD School Board Meeting, the School
Board “approved the professional development as presented to oppose racism and harassment.”
83. At the August 3, 2022 KASD School Board Meeting, in discussing the proposed
curriculum to fulfill the CAP, the following was stated:
 In response to a community member's concern that the curriculum used

Critical Race Theory or adjacent language such as racial equity and social
justice, “The materials people asked about the materials were put together
by our Director of Teaching and Learning and the resources she put together
were multiple but many did come from MAPS. . . . We did work very hard
to modify those materials and take out anything we thought was divisive . .
. .”
 In response to the capitalization of “Victim” and “Oppressor” language,”
all questions were repositioned to remove any victim or oppressor language.
 In response to the school maintaining clarity on who is providing this
message, a staff professional training plan was developed and reviewed and
staff training is set to occur during in-service and staff meetings presented
to all the staff by the Director of Teaching and Learning to ensure a
consistent message from all the teachers.
 In response to a community member, “suggestions were made that this type
of training should be based on compassion, character resilience, and
leadership rather than compliance with legal requirements such as Federal
Civil Rights Laws. I agree with that, but this is where we are.”
 KASD Board Member Randy Olm stated, “I would like to speak to it
because I have not. It’s unfortunate we are where we are in the time frame
that we have but the real reality is that we didn’t drive this hard enough in
the beginning and maybe we didn’t have the right people in place. But we
are where we are.”
THE FINALIZED STAFF TRAINING AND STUDENT CURRICULUM PLANS
84. On December 9, 2021, Attorney Lori Lubinsky requested that DPI extend the
deadline for the implementation of the research-based curriculum to the start of the fall 2022 school
year. According to the request, the delay in fulfilling the CAP, “too[k] much longer than expected
for a number of reasons that frankly are not relevant . . . .”
23

85. On January 22, 2022, Attorney Kari Race of DPI directed KASD to come to an
agreement with the complainant regarding any extension because the original CAP was a
stipulation between Kiel and the complainants.
86. On January 28, 2022, Attorney Lori Lubinsky spoke with Attorney Kari Race of
DPI regarding KASD’s request to extend the deadlines to fulfill the CAP. According to the DPI,
Attorney Lubinsky articulated that some members of the community resisted the implementation
of the curriculum required by the CAP and that the school board was forced to address this
resistance for many months before the MOU could be executed. It was also communicated that
staff training, as required by the CAP, was provided by Kiel’s legal counsel at the start of the 2021-
2022 school year.
87. On February 4, 2022, DPI agreed to amend and extend the implementation of the
CAP in the following ways
 The research-based curriculum that educates students about racism and harassment and
how to oppose such actions shall be implemented no later than the commencement of the
2022-23 school year.
 Kiel shall provide to DPI the consultant’s findings regarding its staff training as soon as
they are available.
 Beginning March 1, 2022, and continuing on the first of each month thereafter, Kiel shall
provide DPI and Complainant with an update on the progress of its work with its
consultant.
88. On March 1, 2022, Attorney Lori Lubinsky emailed the complainant with a
monthly update stating that the District met with members of MAPS Center and received
training/professional development on bullying and harassment and how to oppose it. This did not
occur.
89. On April 3, 2022, Attorney Lori Lubinsky emailed the complainant with a monthly
update stating that (1) the District met with MAPS to discuss how to develop and present
24

professional development and (2) MAPS believes that the training provided by Boardman and
Clarke provided [fall of 2021] and the “work that the District did with the MAPS Center on
February 24 and 25, 2022” meets the requirements of the CAP agreement.
90. On May 2, 2022, Attorney Lori Lubinsky emailed the complainant with a monthly
update stating the Curriculum Committee met, reviewed and supported professional development
for staff. The professional development was approved by the Board on April 6, 2022 and was
presented to all District employees by Dr. Ebert on April 27, 2022.
91. On May 31, 2022, Attorney Lori Lubinsky emailed the complainant with a monthly
update stating that MAPS provided the District with resources to consider bringing into the
classroom, which the District will review during the summer months with administration, the
curriculum committee, and the full board.
92. On June 30, 2022, Attorney Lori Lubinsky emailed the complainant with a monthly
update stating that the District’s Director of Teaching and Learning reviewed the resources from
MAPS and created a list of proposed curricular resources, which were presented to the curriculum
committee on June 29, 2022 and published on the KASD website for parental/community review
and feedback.
93. On August 1, 2022, Attorney Lori Lubinsky emailed the complainant with a
monthly update stating that the materials compiled by the District’s Director of Teaching and
Learning were reviewed by the curriculum committee and will be presented to the Board on August
3, 2022.
94. On September 14, 2022, Attorney Lori Lubinsky emailed the complainant the
District’s final report and documents regarding the implementation of the research-based
curriculum. KASD claims this is the final step in the fulfillment of the CAP. The Staff Training
25

Resource Plan identifies that training will not be delivered by MAPS as required by the CAP, but
instead will be delivered by KASD’s Director of Teaching and Learning. The training plan
mentions race once. The Student Curriculum is a cherry-picked selection of tools whereas the
initial Integrated Comprehensive Systems for Equity Curriculum is described as “Rather than
piecemeal equity approaches, ICS provides a Framework and Process to shift from a deficit to
proactive education system for all students.” The student curriculum mentions race once.
https://www.icsequity.org/ (last visited Oct. 4, 2022).
CLAIM FOR RELIEF AGAINST DEFENDANT KIEL AREA SCHOOL DISTRICT:

VIOLATION OF TITLE VI
102. The Plaintiffs reallege and incorporate the preceding paragraphs as if set forth fully
herein.
103. Officials at KASD had actual notice that A.W. and M.W. were subjected to an
objectively offensive racially hostile educational environment for years.
104. By continuously disregarding the racial harassment, or failing to reasonably
intervene to prevent it, KASD intentionally allowed the racially hostile educational environment
to occur, and/or it was deliberately indifferent to it in violation of Title VI.
105. The unlawful racial harassment described in this complaint was so severe and
objectively offensive that it deprived A.W. and M.W. of full access to the educational opportunities
and benefits required by Title VI that the school provide to each student.
106. The conduct in violation of Title VI described in this complaint has caused A.W.
and M.W. severe psychological and emotional harm.
107. The conduct in violation of Title VI described in this complaint has also caused
A.W. and M.W. economic harm, including but not limited to, falling behind academically,
26

incurring expenses for therapy, loss of companionship and expenses to transfer schools, and
attorney’s fees.
WHEREFORE, the Plaintiffs demand judgment against the Defendant as follows:
1. Against KASD in amounts sufficient to compensate A.W. for all economic,
physical, and emotional losses.
2. An award of all attorney’s fees and costs pursuant to 42 U.S.C. 1988.
3. Any and all other relief the Court deems just to award, including but not limited to
equitable relief.
JURY DEMAND
The Plaintiffs respectfully request that this matter be tried before a jury of six (6) competent
persons.
Dated: October 4, 2022.
MCDONALD LEGAL PRACTICE LLC GINGRAS THOMSEN & WACHS
By: /s/ Joseph McDonald By: /s/ Robert J. Gingras

JOSEPH MCDONALD Robert J. Gingras (SBN: 1002909)
State Bar No. 1113083 Kimberly D. Sweatt (SBN: 1113323)
5311 South Ridge Way #205 8150 Excelsior Drive
Middleton, Wisconsin 53562 Madison, WI 53717
(608) 315-7055 (608) 833-2632
[email protected] Fax: (608) 833-2874
[email protected]
[email protected]

27


Lawsuit Against Kiel School District

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Lawsuit Against Kiel School District

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

A.W. a minor, individually

KIEL AREA SCHOOL DISTRICT,

hereby state and allege as follows:

Wisconsin Department of Public Instruction (DPI), KASD agreed to a Stipulated Corrective

2. Defendant, Kiel Area School District (“KASD”), is a public education school

its students and supervising staff.

JURISDICTION AND VENUE

7. These claims may be venued in the Eastern District of Wisconsin pursuant to 28

to the incidents of racial harassment and discrimination set forth below.

10. The racial discrimination suffered by A.W. as a result of KASD’s deliberate

the 2018-2019, 2019-2020, and 2020-21 school years respectively.

https://nces.ed.gov/ccd/elsi/default.aspx?agree=0 (last visited Oct. 4, 2022).

2019, 2019-2020, and 2020-21 school years respectively.

https://nces.ed.gov/ccd/elsi/default.aspx?agree=0 (last visited Oct. 4, 2022).

13. A.W. identifies as African American.

19. Several unreported incidents of student-on-student racial bullying occurred.

meeting. They agreed to meet the following Monday.

SnapChat. I will be following up on a few others (Conner Meyer) tomorrow.”

requested a copy of the investigation report but was denied.

Fond du Lac High School.

KASD’s lackluster response to A.W.’s safety.

pursuant to District Policy 5517.

INVOLVEMENT OF THE ACLU AND DPI

sufficient to ensure future compliance.”

policies 2260 and 5517.

action in the matter.

opted for a hearing with DPI.

Exhibit A, and its contents are fully incorporated herein.

consultant(s) within 30 days after the consultant is contacted.

confirmation of implementation of such curriculum within 30 days after the curriculum is

training within 30 days after the training is completed.

days after it is posted.

FAILURE TO IMPLEMENT THE CORRECTIVE ACTION PLAN

included and supported."

Over the last year, the district received several harassment/discrimination

Typically, district administration works together to resolve complaints and

58. On August 4, 2021, Tri-County Citizens, an incorporated entity registered on

Critical Race Theory.

13, 2021 provided by the District’s usual law firm.

opened the meeting by stating:

The discussion continued:

to curriculum, teaching and learning.”

for lack of a second.

63. On September 6, 2021, in response to a September 4, 2021 email where Amy

racism and harassment.”

special board meeting.

prior to being put into circulation into the schools”

“MAPS will benefit all students. ICS is a prescribed methodology.”

MAPS. KASD School Board Member Randy Olm abstained.

implementation of the deadline will be extended to the 2022-2023 school year.

the incident to a teacher.

that she could no longer be friends with him (M.W.).

on an anti-CRT platform. He stated:

#5517, ‘Student Anti-Harassment.’”

77. On February 4, 2022, despite Amy and Dan Wempner’s disapproval of an

most likely to occur with the extension of time."

from KASD administration and staff–not from MAPS staff.”