PARKER v. FRANKLIN COUNTY COMMUNITY SCHOOL CORP. No. 10-3595.
667 F.3d 910 (2012)
Amber PARKER, et al., Plaintiffs-Appellants, v. FRANKLIN COUNTY COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees.
United States Court of Appeals, Seventh Circuit.
Decided January 31, 2012.
William R. Groth, Attorney, Fillenwarth, Dennerline, Groth & Towe, LLP, Indianapolis, IN, Julie Alyssa Murray (argued), Attorney, National Women's Law Center, Washington, DC, for Plaintiffs-Appellants.
Thomas E. Wheeler, II (argued), Attorney, Frost Brown Todd LLC, Indianapolis, IN, for Defendants-Appellees.
Lauren Goldman, Mayer Brown LLP, New York, NY, for Amici Curiae Women's Sports Foundation and California Women's Law Center.
Lisa F. Tanselle, Attorney, Indiana School Boards Association, Indianapolis, IN, for Amicus Curiae Indiana School Boards Association.
Lawrence J. Joseph, Attorney, Washington, DC, for Amicus Curiae Eagle Forum Education & Legal Defense Fund.
Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges.
TINDER, Circuit Judge.
A packed gymnasium, cheerleaders rallying the fans, the crowd on their feet supporting their team, and the pep band playing the school song: these are all things you might expect to see at an Indiana high school basketball game on a Friday night. The crowd becomes part of the game; they provide motivation, support, and encouragement to the players. After all, what would a spectator sport be without the spectators? Unfortunately, this is a question the Franklin County High School girls' basketball teams must answer every season because half their games have been relegated to non-primetime nights (generally Monday through Thursday) to give preference to the boys' Friday and Saturday night games. Non-primetime games result in a loss of audience, conflict with homework, and foster feelings of inferiority. The question we're asked to decide in this appeal is whether such discriminatory scheduling practices are actionable under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). We think the plaintiffs have presented a genuine question of fact that such practices violate the statute, and therefore we vacate the district court's entry of summary judgment in favor of the defendants on this claim. We further vacate the district court's dismissal of the plaintiffs' equal protection claim, brought pursuant to 42 U.S.C. § 1983, on the basis of sovereign immunity. The defendants are "persons" within the meaning of § 1983, and thus, subject to suit under that statute.
Amber Parker brought this suit on behalf of her minor daughter J.L.P. against fourteen Indiana public school corporations. Parker served as head coach of the girls' varsity basketball team at Franklin County High School, part of Defendant Franklin County Community School Corp., from 2007 to 2009. J.L.P. was a member of that team during the 2008-2009 season. After the Parker family moved out of state, Tammy Hurley filed an identical suit on behalf of her minor daughter C.H., who was a current member of the Franklin's girls' varsity basketball team. Hurley was eventually added as a plaintiff in the present lawsuit; Parker remains a plaintiff as well. The defendants in this suit include Franklin and conference and non-conference school districts that agreed by contract to play the Franklin girls' basketball team during the 2009-2010 season.
The girls' basketball season starts two weeks before the boys' and during this time, the girls' games are scheduled for primetime nights. Primetime is defined as evenings that precede days without school. The record reveals that at those weekend games, there "are large crowds in attendance..., substantial student and community support in the stands, and the presence of the band, cheerleaders, and dance teams." When the boys' basketball season starts two weeks later, the girls are relegated to playing most of their games on week nights. At those games, the atmosphere is dramatically different. The girls lose the larger Friday night audience, pep band, cheerleaders, and dance team. The bleachers are nearly deserted; there is a lack of student and community support. The girls struggle to complete their home-work and study for tests, and the scheduling policy affected J.L.P.'s grades during the season. J.L.P. also attested that the defendants' practice of placing girls' games disproportionately in non-primetime slots made her feel like girls' accomplishments are less important than boys'.
The plaintiffs named fourteen school defendants in this action: six comprise the schools within the Eastern Indiana Athletic Conference (EIAC) (Franklin County Community School, Batesville Community School, Sunman-Dearborn Community School (East Central), Greensburg Community Schools, Lawrenceburg School Community, and South Dearborn Community School); the others are not members of that conference (Decatur County Community Schools, Switzerland County School, Fayette County School, Richmond Community Schools, Jennings County School, Rush County Schools, Union County School/College Corner Joint School District, and Muncie Community Schools). The EIAC makes decisions by majority rule and voted to enter into two- to four-year contracts for the scheduling of games. Franklin plays each of the conference schools twice a season, once at home and once away. Franklin plays the non-conference schools once a season and they alternate annually between home and away.
During the 2009-2010 basketball season, nearly 95 percent of the Franklin boys' varsity basketball games, but less than 53 percent of the Franklin girls' games, were played in primetime. During the 2007-2009 seasons, the disparity was 95 percent to 47 percent, respectively. In April 2007, Parker asked Franklin Athletic Director Beth Foster to allow the girls' basketball team to play games in primetime on an equal basis with the boys' team. Foster responded that the dates, times, and locations of the basketball games were all governed by contracts for either a two- or four-year period, and once defendants' athletic directors agreed to a schedule and signed a contract, the schools generally
Foster testified that she has attempted to increase the number of girls' basketball games played in the primetime spots, but athletic directors in the EIAC have refused. Foster was met with resistance from the other school athletic directors in the EIAC when she attempted to address gender equity. She even tried to get double headers on Friday nights, but three of the athletic directors wouldn't agree. Foster testified that she is trying hard to make it more equal. She said that she "can't get there because [she] can't get anybody to come play us on those nights," and she can't dictate what night the games will be played.
The defendants moved for summary judgment on both Parker's section 1983 equal protection claim and Title IX claim, and Parker filed a cross-motion for summary judgment. Before the district court ruled on the parties' motions for summary judgment, Hurley, on behalf of her minor daughter C.H., was added as a plaintiff and joined in all claims. The district court granted the defendants' motion for summary judgment on the plaintiffs' 1983 claims on the basis that the defendants were arms of the state and thus, entitled to sovereign immunity under the Eleventh Amendment. The court subsequently granted the defendants' motion for summary judgment on the plaintiffs' Title IX claims upon finding as a matter of law that the defendants' treatment of the plaintiffs did not result in a disparity so substantial that it denied the plaintiffs equality of athletic opportunity.
We review the district court's grant of summary judgment de novo, construing all facts and reasonable inferences in the light most favorable to the non-moving party. Spivey v. Adaptive Mktg. LLC,
Before diving into the merits, we first address defendants' argument that Parker's claims are moot because her daughter is no longer a student at Franklin. Parker's injunctive claims are moot; however, her claims for compensatory damages remain alive. See, e.g., Ortiz v. Downey,
A. Title IX Claim
Since the enactment of Title IX, there has been a huge increase in the number of females participating in high school athletic programs. Before its enactment, less than 300,000 girls participated in high school athletic programs (approximately one in twenty-seven), compared to 3.6 million boys. See National Federation of State High School Associations, Participation Survey Results for 1971-1972, http://www.nfhs.org/content.aspx?id=3282 (last visited Jan. 26, 2012). Girls' participation has increased dramatically since 1971 and is increasing faster than boys'; in
Title IX has gone a long way in changing society's view of female athletes by providing females with the opportunity to showcase their athletic ability and competitiveness and encouraging female participation and interest in sports. The progress in women's athletics has sparked a "realization by many that women's sports [can] be just as exciting, competitive, and lucrative as men's sports." Neal v. Bd. of Trs. of Cal. State Univs.,
Although Title IX has gone a long way in increasing the status and respect for female athletes, discrimination endures. Title IX has not ended the long history of discrimination against females in sport programs; many educational institutions continue to place male sport programs in a position of superiority. See McCormick v. Sch. Dist. of Mamaroneck,
The plaintiffs here have brought an equal treatment claim for discrimination
Title IX was not specifically targeted at nor does it mention athletic programs. The issue of discrimination against women in education-based athletic programs was only discussed briefly in the congressional debates on Title IX. See McCormick, 370 F.3d at 286 (citing 117 Cong. Rec. 30,407 (1971) (statement of Sen. Bayh)). After the statute was passed, there were attempts to limit its effects on athletic programs, see 120 Cong. Rec. 15, 323 (1974) (statement of Sen. Tower), but those efforts failed and Congress directed the Department of Health, Education, and Welfare (HEW) to prepare proposed regulations implementing Title IX, including in the area of "intercollegiate athletic activities." Education Amends. of 1974, Pub.L. No. 93-380, § 844 (1974) (Javits Amendment). The HEW published regulations that specifically addressed the statute's requirements in the athletic programs of educational institutions. See 34 C.F.R. § 106.41. HEW followed notice and comment rulemaking procedures, and President Ford approved the final regulations, as required by Title IX, 20 U.S.C. § 1682, which went into effect in 1975. See Equity in Athletics, Inc. v. Dep't of Educ.,
In an effort to clarify the obligations of federal aid recipients, the HEW issued a policy interpretation in 1979. See 44 Fed.Reg. 71,413 (Dec. 11, 1979). Although the policy interpretation is designed specifically for intercollegiate athletics, its general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by the regulations. Id. Both parties concede, and we do not disagree, that the policy interpretation is entitled to deference. See Kelley v. Bd. of Tr.,
The policy interpretation is divided into three sections: (1) compliance in financial assistance (scholarships) based on athletic ability; (2) equivalence in other athletic benefits and opportunities (equal treatment claims); and (3) effective accommodation of student interest and abilities (accommodation claims). See 44 Fed.Reg. 71,414. As noted, accommodation claims focus on expanding athletic programs to meet the interests of the underrepresented sex. That section provides that an institution has effectively accommodated the interests of its male and female students if it satisfies three benchmarks or "safe harbors." See Kelley, 35 F.3d at 271; see also 44 Fed.Reg. 71,418. Unfortunately, the
In determining whether an institution is providing equal treatment, the policy interpretation lists as a factor the scheduling of games and practice times and particularly, the time of day competitive events are scheduled. 44 Fed.Reg. at 71,416. The policy states:
Id. at 71,415 (emphasis added). The policy also states: "If comparisons of program components reveal that treatment, benefits, or opportunities are not equivalent in kind, quality or availability, a finding of compliance may still be justified if the differences are the result of nondiscriminatory factors." Id. When there are "disparities in benefits, treatment, services, or opportunities in individual segments of the program," as in this case, the Department will base its compliance determination on whether such disparities are "substantial enough in and of themselves to deny equality of athletic opportunity." Id. at 71,417. In responding to commentators who suggested measuring equality of opportunity by having a "sport specific" comparison, the Department disagreed and noted that "a sport specific comparison could actually create unequal opportunity." Id. at 71, 422. "[T]he regulation frames the general compliance obligations of recipients in terms of program-wide benefits and opportunities"[;] "Title IX protects the individual as a student-athlete, not as a basketball player, or swimmer." Id.
Although Congress authorized an administrative enforcement scheme for Title IX, the Supreme Court has recognized an implied private right of action to enforce its ban on intentional discrimination via Section 1681. Cannon, 441 U.S. at 717, 99 S.Ct. 1946. The Court subsequently established that monetary damages, in addition to injunctive relief, are available in such actions. See Franklin v. Gwinnett Cnty. Pub. Sch.,
After Cannon, the Court held in Alexander v. Sandoval,
But the plaintiffs did not bring a disparate impact claim, they brought a disparate treatment claim. They challenge the defendants' facially discriminatory policy of scheduling more boys' basketball games on primetime nights than girls' basketball games because of sex. See Anderson v. Cornejo,
Because Title IX was enacted as an exercise of Congress' powers under the Spending Clause, the implied right of action for money damages exists only where funding recipients had adequate notice that they could be liable for the conduct at issue. Pennhurst State Sch. & Hosp. v. Halderman,
"[F]unding recipients have been on notice that they could be subjected to private suits for intentional sex discrimination under Title IX since 1979, when [the Court] decided Cannon." Jackson, 544 U.S. at 182, 125 S.Ct. 1497. The Supreme Court has "consistently interpreted Title IX's private cause of action broadly to encompass diverse forms of intentional sex discrimination." Id. at 183, 125 S.Ct. 1497 (citing Gebser and Davis); see also id. at 175, 125 S.Ct. 1497 ("`Discrimination' is a term that covers a wide range of intentional unequal treatment; by using such a broad term, Congress gave the statute a broad reach."). For example, even though the statute does not mention sexual harassment, the Court has held that Title IX proscribes harassment with sufficient clarity to satisfy Pennhurst's notice requirement and serve as a basis for a damages action. See Gebser, 524 U.S. at 290-91, 118 S.Ct. 1989 (private right of action for damages under Title IX encompasses intentional sex discrimination in the form of a recipient's deliberate indifference to teacher's sexual harassment of a student); see also Davis, 526 U.S. at 633, 119 S.Ct. 1661 (private right of action for damages under Title IX exists for "student-on-student" harassment where funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities). This case may present an "even easier case than deliberate indifference" because the actions at issue here are "easily attributable to the funding recipient," and thus, "always—by definition—intentional." See Jackson, 544 U.S. at 183-84, 125 S.Ct. 1497 (plain terms of Title IX prohibit retaliation based on coaches's complaints that girls' basketball team wasn't receiving equal funding and equal access to athletic equipment and facilities).
A question we raised at oral argument was whether the defendants were on notice under the plain statement doctrine as most recently articulated in Sossamon v. Texas, ___ U.S. ___,
While accommodation claims are the subject of most Title IX cases, at least two circuits and a number of district courts have determined that plaintiffs made out a successful equal treatment claim. See McCormick, 370 F.3d at 295-96 (finding school districts' scheduling of girls' high school soccer in the spring and the boys' in the fall deprived the girls but not the boys of the opportunity to compete in the regional and state championships, in violation of Title IX); see also Cmtys. for Equity, 178 F.Supp.2d at 855-57 (holding that high school athletic association violated Title IX by scheduling athletic seasons and tournaments for girls' sports during nontraditional and less advantageous times of the academic year than boys' athletic seasons and tournaments), aff'd, 459 F.3d at 695-96.
In analyzing the plaintiffs' claim, we must first determine whether a difference in scheduling has a negative impact on one sex, and then determine whether that disparity is substantial enough to deny members equality of athletic opportunity. See McCormick, 370 F.3d at 293. The court should look to the overall effect of any differences on a program-wide, not sport-specific basis. Id. (citing 44 Fed.Reg. at 71,422). For example, disadvantaging one sex in one part of a school's athletic program can be offset by a comparable advantage to that sex in another area. Id. The defendants have not pointed to any areas in which female athletes receive comparably better treatment than male athletes at their schools to offset any disadvantage resulting from the defendants' basketball scheduling practices. Accordingly, we must consider whether the sport-specific disparity is substantial enough to deny equal athletic opportunity, which we believe includes equivalent opportunity to compete before audiences.
Initially we note that the disparity here was systemic. The evidence shows that Franklin has maintained this scheduling disparity for several years (at least since 2007) and we presume it has been this way since the programs were initially established. Back in 1997, the OCR wrote a letter to the Indiana High School Athletic Association (IHSAA), indicating that the OCR viewed the difference in boys' and girls' basketball schedules as substantial. The OCR wrote the letter because it was concerned about the scheduling practices of high school basketball games in Indiana. The IHSAA distributed the letter to member schools, including the defendants in this action, and encouraged them to assess their programs. The letter stated that "[i]n enforcing the Title IX regulatory requirements pertaining to the scheduling of games, OCR also examines the day of the week on which competitive events are scheduled and assesses whether the scheduling of competitions by a given recipient allows athletes of both sexes an equivalent opportunity to compete before audiences." If an institution reserves primetime for boys, the OCR explained that the institution "would be expected to provide a nondiscriminatory justification for the difference in treatment." An institution cannot, the OCR wrote, adhere to "tradition" or to the scheduling practices of the conference
The letter continued that the schools "could be found by OCR to be out of compliance with the scheduling of games and practice times component of the athletic provisions of Title IX if they reserve Friday nights for boys basketball games and schedule girls basketball games on other nights." The OCR concluded that it would consider "whether Friday night games offer the best opportunity to compete before the largest possible audience, whether week night games, particularly when travel is involved, have a disproportionately negative effect on the academic studies of the members of the girls basketball team, and whether the athletics and coaches of the boys and girls basketball teams consider Friday nights to be the optimal time to compete."
The letter from the OCR was distributed to Franklin fourteen years ago; yet, the disparity in scheduling continues. Franklin notes that it is seeking to remedy the disparity on an ongoing basis and that the number of games girls played in primetime increased by ten percent in 2009-2010. But despite Franklin's efforts, a trier of fact could determine that the present disparity—girls play 53 percent of their games on primetime nights while boys play 95 percent of their games on primetime nights—is substantial enough to deny equal athletic opportunity and that Franklin hasn't gone far enough to remedy the harmful effects of this disparity. The plaintiffs presented evidence of the negative impact this disparity has on the girls—disproportionate academic burdens resulting from a larger number of weeknight games, reduced school and community support (loss of audience), and psychological harms (a feeling of inferiority). The Women's Sports Foundation and others filed an amicus brief devoted largely to demonstrating the harm suffered by girls by being relegated to non-primetime scheduling, noting similar concerns as the plaintiffs. We agree that these harms are not insignificant and may have the effect of discouraging girls from participating in sports in contravention of the purposes of Title IX.
For example, girls might be less interested in joining the basketball team because of a lack of school and community support, which results in the perception that the girls' team is inferior and less deserving than the boys'. The practice of scheduling almost twice as many boys' basketball games on primetime nights sends a message that female athletes are subordinate to their male counterparts and are "second-class." See Cmtys. for Equity, 178 F.Supp.2d at 836 (describing psychological effects of disparate scheduling); see also McCormick, 370 F.3d at 295 ("Scheduling the girls' soccer season out of the championship game season sends a message to the girls on the teams that they are not expected to succeed and that the school does not value their athletic abilities as much as it values the abilities of the boys."). This message echoes throughout the community and has stunted the development of a base of women's sport fans. See Note, Cheering on Women and Girls in Sports: Using Title IX to Fight Gender Role Oppression, 110 Harv. L.Rev. 1627, 1630 (1997) ("Women's and girls' sports are [often] marginalized by a lack of attendance and support."). "There can ... be little doubt that this second-class treatment is at least part of the reason why women do not take up, or continue in, sport[s] at the same rate as men." See Koller, supra at 405-06.
Thus, this disparate scheduling creates a cyclical effect that stifles community support, prevents the development of a fan
Further, some girls who would like to try out for the team may be dissuaded by the number of non-primetime games that conflict with their academic studies. When the girls play weeknight games, the time they have to complete their homework and study for tests is severely restricted, placing them at an academic disadvantage. J.L.P. attested that by the time the junior varsity and varsity games end, it is close to 10:00 p.m. and she is often up until 11:30 p.m. to 12:30 a.m. finishing homework. The disparity in scheduling and resulting conflict that the girls face between basketball and academics may discourage them from participating in basketball altogether.
Based on these harms suffered by the Franklin girls' basketball team because of the obvious disparity in scheduling, we conclude that the plaintiffs have presented sufficient evidence for trial to determine whether the disparity and resulting harm in this case are substantial enough to deny equal athletic opportunity.
The defendants argue in a footnote that the non-Franklin defendants should be dismissed because neither plaintiff attended those schools and thus, they were not the direct beneficiaries of the federal funds flowing to those schools. The defendants have waived this argument by not developing it on appeal. See Argyropoulos v. City of Alton,
The non-Franklin defendants are necessary parties in the scheduling of games. The defendants jointly agree on the schedules and Franklin cannot unilaterally change the schedules. In fact, when Franklin's athletic director tried to increase the number of primetime girls' basketball games, the other athletic directors in the EIAC conference refused her request. The non-Franklin defendants must comply with any injunction that is issued in this case; otherwise the plaintiffs are left without an effective remedy. See Fed. R.Civ.P. 65(d)(2)(C) (stating that an injunction binds parties and other persons who are in active concert or participation with a party if they receive actual notice); see also Rockwell Graphic Sys., Inc. v. DEV Indus., Inc.,
B. Equal Protection Claim
The plaintiffs have also asserted a claim under 42 U.S.C. § 1983 for violation of the equal protection clause of the Fourteenth Amendment. U.S. CONST. amend. XIV, § 1. Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights. See Fitzgerald, 555 U.S. at 258,
"A cause of action under § 1983 requires a showing that the plaintiff was deprived of a right secured by the Constitution or federal law, by a person acting under color of law." Padula v. Leimbach,
The Supreme Court has construed the statute to include "municipal corporations and similar governmental entities" as "persons" subject to § 1983 liability. Howlett v. Rose,
School corporations are political subdivisions with locally elected school board members and superintendents; as such, they are local government units. See, e.g., Bd. of Trs. of Hamilton Heights Sch. Corp. v. Landry,
The defendants, however, argue that they are "arms of the state," not independent political subdivisions, and as such, are not "persons" for the purpose of § 1983 and not subject to suit. See Will, 491 U.S. at 70, 109 S.Ct. 2304 (instructing lower courts to refer to the Eleventh Amendment arm-of-the-state analysis in determining whether an entity is a "person" for purposes of § 1983) (citing Mt. Healthy Bd. of Educ. v. Doyle,
We believe that under Will, as local governmental units, the school corporations are clearly "persons" within the ambit of § 1983. Id. at 70, 109 S.Ct. 2304. Nevertheless, for completeness, we address the defendants' argument that they
The Supreme Court in Regents of the University of California v. Doe,
We have previously held that "[a] local school district ordinarily is not a `State' and hence may be sued in federal court...." Gary A. v. New Trier High Sch. Dist. No. 203,
We begin by considering the "most salient factor" in determining whether the defendants are arms of the state—who is legally obligated to pay any judgment in this case? The answer to that question is the defendants, not the State of Indiana. With the enactment of PL 146, state funding
In the event of a school's inability to pay its debt service obligations, "the treasurer of state, upon being notified of the failure by a claimant, shall pay the unpaid debt service obligations that are due from the funds of the state only to the extent of the amounts appropriated by the general assembly for the calendar year for distribution to the school corporation from state funds, deducting the payment from the appropriated amounts." Ind.Code § 20-48-1-11(c); see also Ind.Code § 6-1.1-20.6-10(c). "This section shall be interpreted liberally so that the state shall to the extent legally valid ensure that the debt service obligations of each school corporation are paid. However, this section does not create a debt of the state." Ind. Code § 20-48-1-11(d); see also Ind.Code § 6-1.1-20.6-10(d). The state guarantees unpaid debt service obligations only to the extent of the amounts appropriated for the school. The statute doesn't require the state to pay out additional funding to the schools for judgments. And despite this "guarantee," judgments remain the schools' legal obligation. See, e.g., Febres v. Camden Bd. of Educ.,
Further, as noted above, nothing in PL 146 altered the general legal status of school corporations as political subdivisions with locally elected school board members and superintendents (not gubernatorial appointments) who serve local communities (not the State of Indiana as a whole). "Indiana chose to organize public education through local school districts instead of establishing a single state agency to control all public education." See Landry, 638 N.E.2d at 1265 (quotations omitted). School corporations are independent corporate bodies that can sue and be sued and enter into contracts. See id.; see also Cash v. Granville Cnty. Bd. of Educ.,
Because the district court determined that the defendants were entitled to sovereign immunity, it never addressed whether any genuine issues of material fact exist as to plaintiffs' equal protection claims. We therefore remand for the district court to consider this issue in the first instance. See, e.g., Johnson v. Hix Wrecker Serv., Inc.,
For the reasons discussed above, we vacate the district court's entry of summary judgment in favor of the defendants on the plaintiffs' Title IX and equal protection claims and remand for further proceedings consistent with this opinion.
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