A man who filed a Title IX lawsuit on behalf of his daughter against a local school district and a dozen individual defendants will be given a chance to amend an otherwise flawed complaint, since he is representing himself in the matter, ruled a federal judge from the Eastern District of California.
Richard D. Davis alleged specifically that the defendants discriminated and retaliated against him and his daughter with respect to his daughter’s participation as a cheerleader at Vista del Lago High School.
Davis also alleged violations of the Equal Protection Clause and Due Process Clauses of the Fourteenth Amendment and a First Amendment retaliation claim.
Short after the lawsuit was filed, the defendant moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6).
The court seemed to agree in principal with the argument, noting that the “complaint does not allege facts that state the elements of his claims plainly or succinctly. Instead, the (it) summarily sets forth the alleged causes of action and the identities of the named defendants in the first few pages, with the remaining 45 pages consisting of the plaintiff’s detailed recounting of the parties’ history.”
It also seemed materially flawed in many ways, according to the court.
For example, the court noted that the plaintiff named the Folsom Cordova Unified School District, which is an agent of the State of California and is therefore enjoys Eleventh Amendment immunity from § 1983 claims, as a defendant.
“In general, the Eleventh Amendment bars suits against a state, absent the state’s affirmative waiver of its immunity or congressional abrogation of that immunity. Pennhurst v. Halderman, 465 U.S. 89, 98-99, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Yakama Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999); see also Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (‘The Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state.’).”
The court then turned more specifically to Title IX.
“There are two components to Title IX’s equal opportunity requirement: ‘effective accommodation’ and ‘equal treatment.’ 34 C.F.R. § 106.41(c)(1), (2)-(10); Mansourian v. Regents of Univ. Of Cal., 602 F.3d 957, 965 (9th Cir. 2010). ‘Effective accommodation claims thus concern the opportunity to participate in athletics, while equal treatment claims allege sex-based differences in the schedules, equipment, coaching, and other factors affecting participants in athletics.’ Mansourian, 602 F.3d at 965.”
Parent Does Not Have Right to File Title IX Suit on Behalf of Daughter
The court went on to write that “Title IX’s equal athletic opportunity requirement is enforceable through an implied right of action. Id. at 964 n.6. See also Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979). That right, however, does not inure to anyone outside the class of persons Title IX was intended to protect. See Cannon, 441 U.S. at 689 (explaining that the class of people Congress intended to benefit under Title IX is ‘persons discriminated against on the basis of sex’). Accordingly, the plaintiff does not have a right to pursue an effective accommodation or an equal treatment claim under Title IX on behalf of his daughter. See Rowinsky v. Bryan Ind. Sch. Dist., 80 F.3d 1006, 1010 (5th Cir. 1996) (concluding parent did not have standing to assert a personal claim under Title IX), disapproved on other grounds by Davis Next Friend Lashonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 637-38, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999); Jones v. Beverly Hills Unified School Dist., No. WD CV 08-7201-JFW (PJW), 2010 U.S. Dist. LEXIS 28657, 2010 WL 1222016, at *2 (C.D. Cal. Mar. 24, 2010) (concluding a female student had the right to pursue Title IX equal treatment claim but her parent did not); Doe v. Univ. of the S., 687 F. Supp.2d 744, 758-59 (E.D. Tenn. 2009) (concluding parents lack standing to assert a Title IX claim because their child ‘attained the age of majority’); Seiwert v. Spencer-Owen Cmty. Sch. Corp., 497 F. Supp.2d 942, 954 (S.D. Ind. 2007) (‘[I]t is apparent from the language of Title IX that a parent lacks standing to bring a cause of action in their individual capacity based on Title IX.’).”
That said, the court did note that the recent decision in Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005), connotes a private cause of action to such parents if they can show they or their daughter were retaliated against because they complained of sex discrimination. “To prevail on the merits of such a retaliation claim, a plaintiff must allege and prove that he was retaliated against because he complained of sex discrimination. Jackson, 544 U.S. at 184.
“Unlike the case with respect to an equal treatment claim, it is conceivable that plaintiff could, possibly, bring a retaliation claim under Title IX even though he was not a member of the protected class. This is so because the victim of retaliation in violation of Title IX does not have to be a member of the class.”
As one judge observed:
“However, in permitting claims for retaliation under Title IX, the Supreme Court has neglected to provide a scheme by which such claims may be analyzed. Most courts, following the lead of the Supreme Court in turning to Title VII jurisprudence generally for Title IX cases, have adopted the Title VII framework for Title IX retaliation cases. Under Title VII jurisprudence, a plaintiff must first establish a prima facie case of retaliation, which involves a three-prong test showing that: (1) the plaintiff engaged in protected speech; (2) the plaintiff experienced a materially adverse action either after or contemporaneously with the protected activity; and (3) there was a causal link between the protected activity and adverse action. Doe v. University of the Pacific, No. CIV. S-09-764 FCD/KJN, 2010 U.S. Dist. LEXIS 130099, 2010 WL 5135360, at *16 (E.D. Cal. Dec. 8, 2010) (citing Atkinson v. LaFayette College, 653 F. Supp.2d 581, 594 (E.D. Pa. 2009) and Burch v. University of Cal. Davis, 433 F. Supp.2d 1110, 1125 (E.D. Cal. 2006)).”
While the existing complaint was insufficient in demonstrating that the plaintiff had shown retaliation, the court was willing to provide enough latitude to the plaintiff, since he was proceeding pro se, to deny the defendant’s motion and permit the plaintiff to amend his complaint.
Richard D. Davis, III v. Folsom Cordova Unified School District, et al.; E.D. Cal.; No. CIV S-11-1242 KJM DAD PS; 2012 U.S. Dist. LEXIS 22619; 2/22/12
Attorneys of record: (for plaintiff) Pro se. (for defendants) James Thomas Anwyl, Lynn A. Garcia, LEAD ATTORNEYS, Anwyl Scoffield & Stepp, LLP, Sacramento, CA.
