A federal judge from the Southern District of Indiana has ruled that a decision by more than a dozen school districts and the Indiana High School Athletic Association to allow the scheduling of more boys’ basketball games than girls’ basketball games on the weekend does not violate Title IX or the Fourteenth Amendment of the United States Constitution.
The IHSAA promulgates rules and regulations for its member schools and their students. The IHSAA also sponsors season-ending tournaments for the 20 sports that it recognizes. Although the IHSAA schedules these tournaments, the scheduling of all other games, which are known as season contests, is left to member schools. The IHSAA does not permit its members to schedule season contests on Sundays. It also, with some limited exceptions not relevant here, does not allow its members to schedule either girls’ or boys’ basketball teams to play more than two weeknight season contests per week. Finally, the IHSAA dictates when, and for how long, athletic seasons run.
The plaintiffs, Amber Parker and Tammy Hurley, were mothers of two players participating on the school’s basketball team. The plaintiffs alleged that 14 Indiana school districts and the IHSAA violated Title IX and the United States Constitution by scheduling girls’ basketball games “on non-preferred dates and times.”
The court had previously dismissed the Title IX claim against IHSAA and granted partial summary judgment to the school districts on the equal protection claim. That left the Title IX claim against the school districts and the equal protection claim against IHSAA.
Key to the ruling on the Title IX claim was a Policy Interpretation issued in 1979 by the Department of Health, Education, and Welfare’s Office for Civil Rights and used by the Department of Education’s Office for Civil Rights.
“Although the 1979 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 regulation,’” wrote the court, citing 44 Fed. Reg. at 71,413.
“The 1979 Policy Interpretation is divided into three sections, which address: (1) compliance in financial assistance (scholarships) based on athletic ability; (2) compliance in other program areas; and (3) compliance in meeting the interests and abilities of male and female students. Id. at 71,414. Part two, compliance in other program areas, corresponds to 34 C.F.R. § 106.41(c)(2)-(10), and is relevant to the instant case.”
Elaborating on this, the court noted “a disparity in a single program component, such as scheduling, can constitute a violation of Title IX if the disparity is ‘substantial enough . . . to deny equality of athletic opportunity.’ Id.” However, that disparity must be significant.
The plaintiffs cited McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 288 (2d Cir. 2004), and Communities for Equity v. Michigan High School Athletic Ass’n, 178 F.Supp 2d. 805 (W.D. Mich. 2001), aff’d, 459 F.3d 676 (6th Cir. 2006), in support of their argument that the school defendants’ disparate scheduling of girls’ and boys’ basketball games is significant enough to constitute a stand-alone violation of Title IX. “However, the Court does not believe that either of these cases is analogous to the instant situation.
“McCormick arose out of the scheduling of girls’ high school soccer in New York. The majority of school districts scheduled girls’ soccer in the fall and the state championship was held in the fall. Nonetheless, the defendant school districts — Pelham and Mamaroneck — scheduled their girls’ soccer seasons in the spring. As a result, girls who played soccer for Pelham or Mamaroneck could not compete in the state championship. McCormick, 370 F.3d at 280. Members of the Pelham and Mamaroneck girls’ soccer teams filed suit alleging that the schools’ scheduling practices violated Title IX. Id. Following a trial, the district court entered judgment for the schools and the plaintiffs appealed. The Second Circuit concluded that the scheduling disparity was significant enough to violate Title IX and accordingly reversed the lower court. The appellate court was swayed by the fact that ‘[t]he scheduling of soccer in the spring . . . places a ceiling on the possible achievement of the female soccer players that they cannot break through no matter how hard they strive. The boys are subject to no such ceiling.’ Id. at 295.
“Similarly, in Communities for Equity, the Michigan High School Athletic Association scheduled ‘athletic seasons and tournaments for six girls’ sports during less advantageous times of the academic year than boys’ athletic seasons and tournaments.’ 178 F.Supp. 2d at 807. By ‘less advantageous’ the plaintiffs meant that the girls’ sports were ‘played in a non-traditional season, i.e., a season of the year different from when the sport is typically played.’ Id. The plaintiffs alleged that ‘the non-traditional season [was] a disadvantageous time of the year to play the sport.’ Id. The district court concluded that the MHSAA’s scheduling practices imposed a number of specific disadvantages to the girls’ sports teams scheduled during non-traditional seasons. These disadvantages were countered by very few potential advantages to the girls’ teams. The court explained that the scheduling practice deprived girls of ‘contemporaneous role models, skills development, and team-building opportunities.’ Id. Based on these disadvantages, the district court concluded that the MHSAA ‘violated and continues to violate Title IX by scheduling seasons of the sports at issue in the manner which it has.’ Id. at 857.
“Despite the plaintiffs’ arguments to the contrary the instant case is not similar to either McCormick or Communities for Equity. In McCormick, the schools’ scheduling of girls’ soccer deprived girls of an opportunity to compete for a state championship. Boys were not denied such an opportunity. In Communities for Equity, the MHSAA scheduled only girls’ sports out-of-season. In the instant case the plaintiffs play basketball during the “appropriate” season and they are able to compete for the state championship. The plaintiffs’ complaint is that they are scheduled to play on non-preferred dates more frequently than the boys’ team. This does not deprive the plaintiffs of role models, inhibit their skills development, or prevents team-building. Unlike Communities for Equity and McCormick, where the defendants’ conduct affected the plaintiffs’ athletic development and capped their ability for athletic achievement, in the instant case the School Defendants’ conduct does not hinder the Plaintiffs’ development of basketball skills. In short, the disparity in treatment in this case simply does not rise to the level seen in either Communities for Equity or McCormick. The School Defendants’ treatment of the Plaintiffs does not result in a disparity that is so substantial that it denies the Plaintiffs equality of athletic opportunity.
Turning to the plaintiffs’ Fourteenth Amendment Equal Protection claim against the IHSAA is brought pursuant to 42 U.S.C. § 1983, the court noted that the plaintiffs in the instant case “must establish that they suffered deprivation of a federally-recognized right (the Fourteenth Amendment) perpetrated by a state actor (the IHSAA).”
The plaintiffs conceded that the IHSAA has not taken any direct action against them. Thus, their argument centered on what the court identified as “a novel theory that purports to hold the IHSAA liable for its ‘deliberate indifference to gender-based discrimination.’ According to the plaintiffs, despite the fact that the IHSAA was ‘warned in 1997 by [the Office of Civil Rights] that some of its member schools may be engaged in discriminatory scheduling practices, IHSAA decided to look the other way.’
“The problem with the plaintiffs’ argument,” continued the court, “is that despite their rhetoric, they have not cited a single federal case that supports using a deliberate indifference theory to hold the IHSAA liable in this situation. The cases that the plaintiffs cite deal with pretrial detainees, false arrests, and students subjected to sexual harassment or bullying. None of these cases are analogous to the present situation. Just because the Plaintiffs have allegedly suffered an injury does not mean that they can hold the IHSAA liable. Before a state actor’s failure to act can give rise to legal liability, there must be a constitutionally recognized duty on the defendant to act. See Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir. 1984). Here, the Plaintiffs point to no such duty on behalf of the IHSAA.”
Parker v. Indiana High Sch. Athletic Ass’n; S.D. Ind.; Cause No. 1:09-cv-885-WTL-WGH; 2010 U.S. Dist. LEXIS 107497; 10/6/10
Attorneys of Record: (for plaintiffs) Mark W. Sniderman, CAPLIN SNIDERMAN P.C., Carmel, IN; William R. Groth, FILLENWARTH DENNERLINE GROTH & TOWE LLP, Indianapolis, IN. (for defendant IHSAA) Robert M. Baker, III, Indianapolis, IN. (for remaining defendants) Thomas E. Wheeler, II, FROST BROWN TODD LLC, Indianapolis, IN.
