Complaints Filed Against Five Wisconsin Districts

Five school districts in Wisconsin are the subject of recent complaints filed with the Department of Education's Office for Civil Rights, alleging violations of Title IX in the number of athletic opportunities for girls. The complaints, which target high schools in Kettle Moraine, Oconomowoc, Mukwonago, Waukesha and Elmbrook, use statistics from OCR's Civil Rights Data Collection as the basis for alleging that each district fails to comply with prong one of the three part test due to significant disparities -- most of them at or above 10 percentage points -- between the percentage of athletic opportunities for girls and the percentage of girls in the student body. The high schools in these districts are also alleged to fail under prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, having added only one or two girls teams in the last 26 years. Finally, the complaints cite as evidence of unmet interest the fact that there are privately-sponsored club teams for some girls sports at some of these schools, as well as evidence that sports popular in the region are not offered.

OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."

Sexual Harassment Roundup

Here is a roundup of some recent sexual harassment cases.

• Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).

• A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).

• A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).

And this decision is several months old, but it just showed up on my radar, and is worth noting:

• A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).

Sexual Harassment Roundup

Federal courts have recently issued several decisions in Title IX cases involving allegations of sexual harassment. I am grateful to Western New England law student Shiona Heru for helping me prepare these case summaries!

• The Fifth Circuit Court of Appeals affirmed a lower court’s decision to dismiss a harassment case against a school district in Texas, calling it “petty squabble, masquerading as a civil rights matter.” Drawing a distinction between sexual harassment, which is covered by Title IX, and generic bullying, which is not, the court refused to consider incidents arising out of dispute between cheerleaders, in which one female student allegedly spanked the plaintiff’s butt, spread rumors that plaintiff was pregnant and had hickies, could not be viewed as harassment motivated by the victim’s sex. Also, in addressing the plaintiff’s claim that the school district’s failure to notify the Title IX coordinator constituted deliberate indifference, the court made it clear that ineffective responses to harassment do not establish deliberate indifference. Sanches v. Carrollton-Farmers Branch Independent School Dist., 2011 WL 2698975 (5th Cir. Jul 13, 2011).

• A federal court in Wisconsin rejected a school district’s attempt to dismiss a sexual harassment case involving a seventh grade student who is alleging that school officials failed to protect her from extensive verbal and physical abuse by four fellow classmates. The most egregious acts alleged included three consecutive attacks by two of the students who repeatedly hit the plaintiff with spiked track shoes resulting in the approximately 38 puncture wounds on the plaintiffs head, as well as an incident where two students beat her with a three-foot long tree limb which resulted in bleeding, lacerations, welts, bruising, emotional trauma, permanent scarring and severe bruising of several vertebrae. When the parents of the plaintiff requested that the plaintiff be permitted to attend another school, the school district refused and would not remove her harassers from her classes. The court considered these allegations, if proven true, to constitute deliberate indifference that could thereby subject the school district to liability under Title IX. Doe v. Galster, 2011 WL 2784159 (E.D. Wis. Jul 14, 2011).

• A federal court in California refused to dismiss a case filed by a high school student who alleged she had endured severe sexual harassment by a school counselor. Specifically, the plaintiff had alleged that the counselor’s behavior over the course of six months, which included sexually suggestive comments, inappropriate physical contact and unwarranted monitoring, rendered the district liable under Title IX and other law. Though the district court dismissed those portions of the plaintiff’s claim based on conduct that took place prior to the plaintiff’s notifying the school of the counselor’s conduct, it did accept that the plaintiff’s allegations of deliberate indifference were specific enough to withstand a motion to dismiss claims arising from conduct that occurred after the plaintiff notified officials. Lilah R. ex rel. Elena A. v. Smith, 2011 WL 2976805 (N.D. Cal., Jul. 22, 2011).

• A federal district court in New Jersey dismissed a sex discrimination and harassment case filed by a 22-year old male student against his undergraduate institution, the New Jersey Institute of Technology. The court found that the plaintiff’s selective enforcement claim, alleging that NJIT’s actions were motivated by gender, was flawed because he failed to demonstrate that his circumstance was sufficiently similar to a female student’s complaint where she reported a threatening comment made by the plaintiff. The court also dismissed the student’s sexual harassment under Title IX because his complaint did not include specific allegations that the institution had notice of the harassment he was facing from his peers, or that it responded to that harassment with deliberate indifference. Tafuto v. New Jersey Inst. of Technology, 2011 WL 3163240 (D.N.J., Jul. 26, 2011).

Title IX Violations to be Remedied in Arrowhead, Wisconsin

A recent investigation into Title IX violations at Arrowhead High School in Wisconsin lead OCR to conclude, for the second time in recent years, that the school was not providing equal opportunity to female athletes. The school has agreed to fund alpine skiing and lacrosse, though the superintendent characterizes this a a voluntary, proactive decision and is seeking to challenge OCR's determination that the high school is in violation of Title IX.

In 2008, Arrowhead settled a complaint about unequal treatment by agreeing to make improvements to softball and field hockey facilities.

UPDATE: a reader kindly emailed me a copy of OCR's letter of findings, so I am able to add some additional details to the press account I summarized this morning.

• Arrowhead High School had a four-percentage-point disparity between the percent of athletic opportunities for girls (43%) and the percent of girls in the student body (47%). OCR characterized this as a substantial disparity not in compliance with prong one's substantial proportionality test because it amounted to 124 participation opportunities, well over the amount necessary to field a team in one or several sports.

• Next, OCR found that though the disparity had decreased since 2006 (it was as high as 5.3%) this does not satisfy prong two's requirement for continuous expansion of opportunities for the underrepresented sex because it was due to a decrease in the percentage of female students rather than the addition of new athletic opportunities. Moreover, prong two compliance was foreclosed by the fact that Arrowhead has only added one new sport for girls in the last 20 years, and had turned down a request to fund the existing self-funded lacrosse team.
  

• OCR also found that the existence of two, self-funded club teams demonstrates unmet interest and ability in additional varsity sports for girls, thus precluding Arrowhead from prong three compliance. The girls' Alpine ski team has existed since 2006 and has grown from 10 girls to as many as 21. Last year, the skiers competed successfully against fifteen other teams in five invitational meets. A girls' lacrosse team also provides opportunities for as many as 69 girls divided onto four squads. Though lacrosse is not sanctioned by the WIAA (neither is alpine skiing), the lacrosse team is a member of the Milwaukee Area Youth Lacrosse Association and competes against the other 6 other girls' lacrosse teams in that league, as well as other schools in the Madison area and from Illinois -- all within 70 miles of the school. Therefore, there is unmet interest and ability in sports for which there is sufficient competition in the school's normal geographic region of competition.
  

• The school district had informed OCR through correspondence spanning the last several months that it would fully fund lacrosse this school year, that it would partially fund (50%) the alpine ski team next school year, and fully fund the ski team in the following (2012-13) school year. OCR has closed the complaint "based upon these commitments," but has required the district to verify its compliance with those commitments going forward, and to that end imposed several reporting requirements spanning the next several years.
  

Wisconsin School District Will Offer Girls Hockey

Earlier this year, high school freshman Morgan Hollowell and her father sued the Elmbrook School District in Wisconsin, challenging the district's decision to exclude girls from the hockey cooperative it is joining with another school district. Elmbrook officials cited low interest among girls as its reason for leaving them out of the plan.

It was recently reported in Athletic Business that in response to the pressure from the lawsuit, the school district has reversed its plan and will now enter into a similar cooperative for girls hockey. Though I could find no details about existing athletic opportunities in Elmbrook, unless athletic opportunities are roughly proportionate to the gender breakdown of the student body, under Title IX's three prong test, the district can't ignore unmet interest and ability among the underrepresented sex. While this aspect of the law would not require a school district to form a team when only a small number of girls (the article said 3) is interested in the sport, a different standard arguably applies when the decision isn't to form a team, but to join a cooperatives with other districts. It seems to me that the very fact Elmbrook was joining a cooperative suggests that there were not enough male hockey players at either or both of Elmbrook's high schools to field a team either. If the school district is going to accommodate boys' interests in that manner, it should similarly accommodate girls'.

Title IX Doesn't Cover Coach's Discrimination Against Female Football Player, Court Rules

Ivyanne Elborough played football on the freshman team at Evansville High School in Wisconsin. She was the only female member of the team. Her coach, Ron Grovesteen, apparently did not like having a girl on the team. He regularly failed to unlock the girls' locker room, so Elborough had to find someone with a key to let her in so she could get her equipment. This made her late to practice, an infraction Grovesteen punished with pushups. Grovesteen also supplied the boys' locker room with snacks, and posted a copy of the practice schedule there. Elborough, of course, was not permitted in the boys locker room. Elborough also alleges, that Grovesteen told Elborough she had to get her hair cut like a boy, though Grovesteen denies this.

Despite complaints by Elborough's mother to the athletic director and the district administrator about the key situation, when Elborough showed up for practice on August 30, 2007, the girls' locker room was, again, locked. Elborough could not find anyone to let her in, so she went to practice without putting on her protective gear. Coach Grovesteen nevertheless allowed her to participate in practice, and Elborough broke her clavicle during a form blocking drill.

Elborough sued the school district under Title IX and the Equal Protection Clause, but a federal court judge in Wisconsin recently dismissed her Title IX claim. Though it appeared likely that the coach allowed Elborough to play without pads because she was a girl, the court reasoned that the district could not be liable for this decision because officials did not have notice that Elborough could get hurt at practice as a result of sex discrimination. As for the other examples of discrimination, including the locked doors, the snacks, and the haircut remark, the judge cited the maxim that "the law does not concern itself with trifles" before deeming them too insignificant to render the school district liable.

The court did not throw out Elborough's Equal Protection claim, so she still will be able to press her case against the school district. But the judge's decision on the Title IX claim is wrong, wrong, wrong, and needs to be reversed on appeal so that it does not create bad precedent in future cases. The problem is that the judge considered this case under sexual harassment standards, rather than as a case about direct, intentional discrimination. Her concern with notice and materiality of harm derives from cases like Davis, where the Supreme Court held that a school district could be liable when students harass and bully each other. The court did not wish to create a floodgate of litigation for every little jaunt and jab between students, so it set forth the requirements for notice, deliberate indifference, and harm to the plaintiff in the form of impairment to her education. Elborough's case is about participation, not sexual harassment. A coach can't erect obstacles to a player's participation, such as throwing her into a practice drill without pads in the apparent hopes that she'll get roughed up and quit, simply because he doesn't like her gender. "Notice" does not come in to play because the school official in a position to prevent this discrimination is the coach himself, who certainly has notice of his own conduct!

Moreover, the locker room issue and even the snacks amount to more than just a "trifle" -- they are both physical and symbolic lack of access to the football program, intended to make Elborough feel different and inferior because of her sex. What's more, Title IX regulations say that equity is measured in part by whether girls have similar access to the benefits of participation, including such benefits as access to facilities, including locker rooms, and meals. These regulatory interpretation underscores that that access to participation is about more than just what goes on on the field.

I hope that the plaintiff appeals this decision. Unfortunately, this judge is not the first one to conflate the notice requirement from harassment cases into athletics participation cases. We clearly need an appellate court decision on this issue to address this confusion.

Decision is: Elborough v. Evansville 2009 WL 1773135 (W.D. Wis. June 23, 2009).

Wisconsin Court Says Cheerleading Is a Contact Sport

File the Wisconsin Supreme Court's recent decision in Noffke v. Bakke under examples of cheerleading's increasing acceptance as an athletic activity.

Brittney Noffke was a high school varsity cheerleader who was injured while practicing a sideline stunt. (Cheerleading, we've noted, has a higher rate of injury than all (other) women's sports combined.) She sued, among others, a fellow cheerleader named Kevin Bakke, whose role in this particular stunt involved spotting her while she stood on the shoulders of another cheerleader. Bakke was out of position, and thus unable to catch Noffke when she fell. In his defense, Bakke argued that under a Wisconsin statute, an athlete who injures another athlete through negligence is immune from liability and cannot be sued. But for this immunity to apply to Bakke, the courts had to find that Naffke and Bakke were participants in a "recreational activity that includes physical contact between persons in a sport involving amateur teams, including...high school." In other words, Bakke was immune from suit only if cheerleading is a contact sport. The lower court agreed with Bakee that it is, but the decision was reversed on appeal. Bakke appealed to the Wisconsin Supreme Court, which reinstated cheerleading's status as a contact sport and dismissed the case against Bakke.

The court concluded that cheerleading is a sport because it involves physical exertion and skill, it is governed by a set of rules or customs, and its participants are organized and work together as a team to compete and to generate fan participation on the sidelines. Moreover, cheerleading incorporates the requisite physical contact as stunts require cheerleaders to toss and lift and have other manners of "forceful interaction" with each other. For purposes of the immunity statute, it did not matter that the accident occurred while practicing for a sideline routine rather than a competition, since the immunity rule by its terms does not turn on whether participants are in, or training for, competition.

The court's conclusion that cheerleading is a sport--and a contact sport at that--is of course limited to the immunity statute at stake in the case. It does not directly bear on whether the activity is sufficiently sporty to count as an athletic opportunity under Title IX or a contact sport that can, under the regulations, exclude a particular sex. While OCR endorses the practice of counting cheerleading for Title IX purposes if the team is treated like, and is as focused on competition, as any other athletic team, courts have not weighed in on this question or whether the contact sport exception applies to cheerleading. But for a court to recognize that cheerleading is not only a sport, but a contact sport warranting application of the same immunity rules that were written for sports like hockey and football, is not only evidence of the evolving, athletic nature of cheerleading but judicial acceptance of that fact as well -- acceptance that we could see spill over into the Title IX context.

New facilities will resolve WI complaint

Resolution of a 2006 complaint filed anonymously regarding the situation at Arrowhead High School in Wisconsin is forthcoming. The OCR investigation of the complaint that alleged discrimination because the girls' field hockey team did not receive equitable resources compared to boys' teams at the high school. Improvements to the field hockey field as well as the softball field will take care of the situation according to the school superintendent.