A federal judge from the Middle District of Pennsylvania has sided with a school district and its athletic officials in a case in which they were sued by a female student athlete, who claimed that she was harassed by her teammates on the basketball team and that the defendants failed in their duty to prevent the harassment.
Molly Kirby attended high school in the Loyalsock Township School District and graduated at the end of the 2008-2009 school year. She played basketball for the school until she quit the team during her senior year of high school.
Beginning around the end of her sophomore year, she alleged that she began to “feel intimated by other girls on the basketball team.” The plaintiff charged specifically that the girls “started to avoid me. They didn’t want to talk to me. They didn’t want me on their team. Just little signs of not wanting me there. I wasn’t invited to go places with them, things like that.”
The alleged transgressions escalated during her junior year. Some of the plaintiff’s teammates wore t-shirts to practice that said “Out of Control.” The high school principal and the school’s athletic director told the plaintiff’s teammates not to wear the t-shirts because the plaintiff believed the phrase “Out of Control” was directed at her.
The plaintiff’s father, who coached the district’s varsity basketball team until November 2008, met with aforementioned administrators in November 2008 and stated that “there has to be an acknowledgment that what (the plaintiff’s teammates are) doing is wrong, and it has to stop.” This ultimately led to the district’s superintendent offering to provide her with a “female companion to follow her around school and keep her separated from those who were allegedly bullying her,” wrote the court. “The plaintiff’s family rejected this offer. The district also offered to provide mediation services to the plaintiff any time she was willing to sit down with the other students to address her concerns. This offer was made to the Plaintiff several times but was also rejected.”
After a rumor that the plaintiff was pregnant circulated the high school during her senior year, the beginning of the end was near. After another incident, the plaintiff quit the team.
The plaintiff sued on August 31, 2009, alleging that the defendants violated her Constitutional rights to freedom of association, substantive and procedural due process, and equal protection. The plaintiff also alleged a claim of municipal liability against the school district. The defendants moved for summary judgment.
Tackling the Freedom of Association claim first, the court wrote that there is a social and expressive association.
Examining the former, the court wrote that “the plaintiff’s friendships with her classmates and basketball teammates are legally insufficient to be protected by the First Amendment. Many courts, including the Third Circuit, have concluded that friendships fall outside the scope of the First Amendment. See Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000) (“The defendants’ alleged interference with (the plaintiff’s interaction with other swimmers clearly does not amount to a violation of a protected right”); Vieira v. Presley, 988 F.2d 850, 853 (8th Cir. 1993).”
Turning to the second type of associational freedom, the court wrote that expressive association “protects ‘associations formed for the purpose of engaging in activities protected by the First Amendment, such as the exercise of speech, assembly, and religion.’ Rode, 845 F.2d at 1204 (citing Roberts, 468 U.S. at 617-18).”
To this point, the court wrote that the plaintiff “has not alleged any expressive purpose to her associations with her classmates. Moreover, the court finds that there is nothing in the record to suggest the relationships at issue were created for the purpose of engaging in activities protected by the First Amendment. To the extent that the plaintiff alleges a claim of violation of the freedom of association for expressive purposes, this claim also fails.”
As for the plaintiff’s equal protection claim, the court wrote that “under the Fourteenth Amendment, no State ‘shall deny to any person within its jurisdiction equal protection of the laws.’ U.S. Const. amend. XIV, § 1. In Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008).
“The Third Circuit set out the standard for a ‘class of one’ equal protection claim: To state a claim for ‘class of one’ equal protection, a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment.”Id. at 243.
However, the instant court wrote that “after carefully reviewing the evidence, the court finds that the plaintiff has failed to establish that she was treated differently than similarly situated students. The plaintiff’s examples of alleged disparate treatment are so general that it is impossible for the court to determine whether other students involved were similarly situated.”
Turning to the plaintiff’s contention that the defendants violated her procedural due process rights under the Fourteenth Amendment, the court noted, in dismissing the plaintiff’s claim, the that substantial case law that holds that student athletes do not have “a protected property interest in participating in extracurricular activities.”
Finally, the court examined the plaintiff’s claim that her substantive due process rights were violated. Again, she came up empty, with the court noting that since “there is no fundamental right to a public education, there is no fundamental right to participate in extracurricular school activities. Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 553 (3d Cir. 2007).
“Because Plaintiff has failed to establish the deprivation of a fundamental right, the court will grant the defendants’ motion as to the plaintiff’s substantive due process claim.”
Molly Kirby v. Loyalsock Township School District at al.; M.D. Pa.; Civil Action No. 4:09-cv-01695, 2011 U.S. Dist. LEXIS 99669; 9/6/11.
Attorneys of Record: (for plaintiff) Robert A. Hoffa, LEAD ATTORNEY, Campana Lovecchio & Morrone, PC, Williamsport, PA (for defendants) Sharon M. O’Donnell, LEAD ATTORNEY, Christopher J. Conrad, Marshall Dennehey Warner Coleman and Goggin, Harrisburg, PA.
