The parent of a middle school student, along with his son (J.S.), have sued the Laurel County (Ky.) Public School System, its superintendent and athletic director because the son was not allowed to play on two different school-based teams — one for his own age group and one for those a year older — at the same time.
The plaintiffs claimed specifically that the district’s so-called “play up, stay up” rule allegedly discriminates on the basis of sex because it applies only to boys, violating the Equal Protection Clause and Title IX. They are seeking injunctive relief that would suspend the rule and a permanent change in the rule, as well as compensatory damages, punitive damages and attorney’s fees.
The plaintiffs described the offending rule, which is contained in the district’s athletic handbook, as follows: “Under this rule, if J.S. chooses/is chosen to play with the 7th grade team, he can never return to play with the 6th grade team; if he chooses/is chosen to play with the 8th grade team, he can never return to play with either the 6th grade team or the 7th grade team. By contrast, 6th or 7th grade female basketball players (at the middle school) have recently been permitted to play up and then play down on multiple teams as they and their coach(es) see fit.”
They also highlighted an August 30, 2018 letter from Larry G. Bryson, an attorney for the school district, which seemed to suggest that the courts would not be responsive to the plaintiffs’ gender equity claim because they favor the claims of females, which have historically been the victim of discrimination. Bryson writes: “Since you threatened litigation, I discussed your letter with the Laurel County Board and Superintendent Bennett in closed session. We are surprised that anyone today would try to ‘game’ a federal law in this manner, although you are not the first to try to do so. In fact, there has been no shortage of advocates who seek to have the same Title IX rules applied to boys’ teams as girls’ teams, but the courts have steadfastly failed to buy into this argument citing the long history of inequity for girls’ teams as the reason for the courts’ approach.”
The parent responded to the attorney’s letter by highlighting case law that suggested otherwise, including Fitzgerald v. Barnstable School Committee, et al., as authority that “Title IX does not preclude a§ 1983 action alleging unconstitutional gender discrimination in schools,” Mississippi University for Women v. Hogan, I 02 S.Ct. 3331 (1982) as “conclusive proof that the U.S. Supreme Court has held that the rights and benefits provided by Title IX protect and extend to both females and males,” and Wengler v. Druggists Mutual Ins. Co. , 446 U.S. 142 (1980) and “outlined for Attorney Bryson and the defendants the correct standard for analyzing gender classifications under the Equal Protection Clause,” according to the complaint.
Violations of the Equal Protection Clause of the Fourteenth Amendment
As far as relief, the plaintiffs claimed the following:
“By authorizing, promulgating, implementing and enforcing the rules, policies, and practices pursuant to which J.S. is denied full access to public education and is subjected to discrimination on the basis of his gender in the Laurel County Public Schools, Defendants have deprived, and will continue to deprive J.S. of rights, remedies, privileges and immunities guaranteed to every citizen of the United States in violation of 42 U.S.C. § 1983 and of rights guaranteed by the Fourteenth Amendment to the United States Constitution and all other applicable federal law.
“All Defendants have acted under pretense and color of state law and in their Individual and Official capacities and within the scope of their employment. Defendants’ acts described herein were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and said Defendants acted willfully, knowingly, and with the specific intent to deprive Plaintiffs and J.S. of their constitutional and federal statutory rights secured by 42 U .S.C . § 1983 . Defendants have conspired among themselves to do so and failed to prevent one another from doing so.
“Defendants’ conduct is causing, and will continue to cause, irreparable harm to J.S. unless it is enjoined by this Court. Plaintiffs are entitled to temporary, preliminary, and permanent injunctive relief compelling Defendants (a) to immediately permit J.S. to fully participate in all school activities including extracurricular sports activities on multiple grade levels, and (b) to comply with all requirements of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Violations of Title IX
“Title IX of the Education Amendments of 1972 states in part: ‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance …. ” 20 U.S.C. § 1681 (a).
“Defendant LCBE is an ‘education program or activity receiving federal assistance’ within the meaning of Title IX.
“The conduct of Defendant LCBE, by and through its agents, servants and assigns, and on the basis of sex, has excluded J.S. from participation in an education program or activity within the meaning of Title IX.
“The conduct of Defendant LCBE, by and through its agents, servants and assigns, and on the basis of sex, has denied J.S. the benefits of an education program or activity within the meaning of Title IX.
“The conduct of Defendant LCBE, by and through its agents, servants and assigns, and on the basis of sex, has subjected J .S. to discrimination under an education program or activity within the meaning of Title IX.
“Title IX contains an implied private right of action, and damages are available as a remedy.
“Defendants’ conduct is causing, and will continue to cause, irreparable harm to J.S. unless it is enjoined by this Court. Plaintiffs are entitled to temporary, preliminary, and permanent injunctive relief compelling Defendants (a) to immediately permit J .S. to fully participate in all school activities including extracurricular sports activities on multiple grade levels, and (b) to comply with all requirements of Title IX.”
The plaintiffs also claimed violations of the Kentucky Constitution and other state laws.
