By John S. Miller
Previously, former St. Marys (OH) Memorial High School football players, Dane Chisholm and Reid Lininger filed separate complaints in federal court (Chisholm v. St. Marys City School District Board of Education, 2018; Lininger v. St. Mary’s City School District Board of Education, 2019). Both Chisholm and Lininger alleged violations of federal due process, equal protection, Section 1983 (also known as 42 U.S.C. § 1983), a federal law that permits lawsuits on the basis of violations of constitutional rights and Title IX as well as state-law claims for intentional and negligent infliction of emotional distress against the St. Mary’s Board of Education, District Superintendent Shawn Brown, St. Mary’s Athletic Director James Hollman, and Head Football Coach Frye. Following the discovery in each case, the district court granted summary judgment to Defendants on all claims (Chisholm v. St. Marys City School District Board of Education, 2018; Lininger v. St. Mary’s City School District Board of Education, 2019).
Chisholm and Lininger appealed, in separate suits, but consolidated by the court, the decision claiming federal Title IX violations and state-law intentional infliction of emotional distress against their former high school coach, Frye (Chisholm v. St. Mary’s School District Board of Education, 2020). Additionally, because Frye exhibited a previous history of allegedly harassing his players, Chisholm and Lininger also sued the St. Mary’s school board, superintendent, and athletic director as defendants for not addressing Frye’s conduct. However, the district court entered summary judgment in favor of defendants. Further, the court asserted that while Frye’s manner was repugnant and disgusting, such behavior did not rise to the level of a violation, nor was his conduct inexcusable to the point of being in violation of Ohio tort law. As a result, the United States Court of Appeals for the Sixth Circuit affirmed the previous court’s ruling.
Title IX
Title IX prohibits states that “[n]o person . . . 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 financial assistance.” 20 U.S.C. § 1681(a). To maintain an allegation under Title IX, a plaintiff is required to reveal that an individual associated with a federally funded education program was involved in sex-based discrimination against the plaintiff. After such a threshold is ascertained, the plaintiff must make three additional elements : (1) the sex-based harassment was so harsh, prevalent, and demonstrably offensive that it may deny the plaintiff of admission to the educational opportunities or benefits offered by the school; (2) the school had authentic knowledge of the harassment; and (3) the school was intentionally unresponsive to the harassment (Davis v. Monroe County Board of Education, 1999).
The use of Title IX theory by Chisholm and Lininger is uncommon as it is totally based
on Frye’s use of the word “pussy.” Chisholm and Lininger alleged that using that word in such a fashion was a kind of sex discrimination because of its gender-based meanings. They asserted that Frye calling them “pussies” depicted them as “feminine” or less masculine, thus exposing Frye’s partiality of one sex over the other. However, the court, in this case, indicated that Frye’s comments were below the standard of being a proper teacher or mentor of young people, his gendered slurs designed to motivate the players “did not cross the Title IX goal line” (Chisholm v. St. Mary’s School District Board of Education, 2020, p. 24).
Further, Patterson v. Hudson (2009) court stated that Title IX does not provide protection against every sex discrimination situation. More accurately, it protects an individual against sex discrimination that is so “severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school” (Patterson v. Hudson, 2009, pp. 444-445). The Supreme Court in Oncale v. Sundowner (1998) observed the assessment of sex-based discrimination conduct “depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed” (p. 82). Placed in the context of the “heat” of a competitive environment, it is not unlikely that coaches and players use language that may be considered offensive or gender-directed. As a result, this claim did not reach the standard of severe, pervasive, nor objectionable conduct by Frye.
The court used Title VII to analyze the Title IX claim since both are predicated “on the basis of sex.” To satisfy a Title VII claim, the plaintiff must reveal one of three ways regarding how discrimination based on sex occurred (Oncale v. Sundowner, 1998). First, the defendant made sexual advances or acted out of a sexual desire. A second way was to determine that the defendant was motivated by general hostility to the presence of one sex in an educational setting. The third route is that the defendant considered members of each sex contrarily in a mixed-sex educational environment.
The court, in this instant case, stated that neither Chisholm or Lininger satisfied any of the established paths to prove Title IX liability. In fact, there were no assertions regarding sexual desire by Frye to either of the plaintiffs made in this case. Regarding the second route, the court found that Frye was driven by an overall hostility to the company of men. In fact, the court indicated that a significant amount of substantiation against such behavior since Frye had devoted a number of years developing high school male student-athletes while coaching football. Finally, the third route, alleging that Frye treated one sex differently from the other, was not upheld since no women were among the members of the football team.
Independent of the typical applications of Title VII and Title IX, a plaintiff can also establish sex discrimination by disclosing that he or she was wronged for not following traditional sex stereotypes (Price Waterhouse v. Hopkins, 1989). However, in this case, neither Chisholm nor Lininger looked or acted like a woman as established in Price Waterhouse v. Hopkins. The second route, in which the defendant was motivated by general hostility to the presence of one sex was also not applicable. While Frye’s offensive language was aimed to develop toughness in his football players, they did not provide comment on whether Chisholm and Lininger were standards of their sex. Ultimately, the court reasoned that Frye’s remarks were about playing football, not gender roles.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress is a common law tort that permits recovery from significant emotional distress created by another person due to acting in an extreme and outrageous manner (Hayden, 1993). While Frye had a relatively long history of “using unacceptable obscene language” at other high schools, the contention, in this case, was his use of calling Chisholm and Lininger and their teammates various names, including “pussy, bitch, and pretty boy” (Chisholm v. St. Mary’s School District Board of Education, 2020, p. 9). The defendants claimed that Frye intentionally and negligently inflicted emotional distress upon them. Specifically, it was asserted that Lininger developed depression and anxiety and Chisholm’s life at home became unsettled after he was released from the team, thereby causing him to be distrustful of adult leadership.
In order to prove the intentional infliction of emotional distress, the plaintiffs needed to show four elements (Burkes v. Stidham, 1995). The first element dealt with whether Frye either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff. Second, that Frye’s behavior was so excessive and despicable as to go past all potential bounds of decency and be utterly inexcusable in a civilized community. Third, Frye’s actions were the proximate cause of both Lininger and Chisholm’s asserted psychic injury. Finally, the mental torment endured by Lininger and Chisholm was so severe that no reasonable person could expect to withstand it.
The Appeals Court, in this case, responded to Lininger’s and Chisholm’s allegations by alluding to the high bar set by the state of Ohio in such cases. For example, injured feelings triggered by insults, threats, and other indignities are not considered “outrageous” when applied to Ohio state law (Reamsnyder v. Jaskolski, 1984). Instead, the courts acknowledged that because life, in general, is not always kind, an average individual should be hardened to a certain extent.
The court in Hughes v. Moore (1993) stated that when the behavior of a person is not willful, wanton, or vindictive, and physical impact is lacking, there cannot be any recovery for emotional distress. As applied to this case, the court affirmed that they did not condone Frye’s statements about Lininger or Chisholm, indicating that they were insulting and tasteless. However, the court revealed that such comments were not unheard of between coaches and athletes in many sports, including high school football. Thus, Frye’s comments did not rise to the level of being “utterly intolerable in a civilized community” (Burkes v. Stidham, 1995, p. 989).
Conclusion
Coaches at many levels of sports competition motivate their players by “going old-school” through the use of crude language or actions. Physical and verbal abuse by coaches can gravely impact the physical and psychological health of young participants (Mountjoy et al. 2016). Studies have reported that verbal abuse by a coach toward an athlete is the norm in sports (Spruit, Kavussanu, Smit, & IJntema, 2019; Yabe, Hagiwara, et al., 2018). Yet, does such conduct go past the legal policies provided in Title IX?
Similar to Title VII, Title IX does not represent a civility code. Further, it is noteworthy to recall that Title IX protects an individual against sex discrimination that is so “severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school” (Patterson v. Hudson, 2009, pp. 444-445). In this appeal, the court affirmed that while Frye’s language and demeanor were boorish and offensive, they were not atypical of other football coaches and players. As a result, the court indicated that simply stating an offensive or gendered term did not constitute discrimination on the basis of sex. Thus, the court found that Frye’s actions were not violations of sex-based discrimination identified in Title IX, nor was his conduct intolerable in a civilized society. Unfortunately, to a reasonable extent, given the climate of culture in the United States, “embarrassment and humiliation are part of everyday life to which the law provides no remedy” (Peitsmeyer v. Jackson Township Board of Trustees, 2003, p. 17).
References
Burkes v. Stidham, 107 Ohio App. 3d 363, 668 N.E.2d 982, 989 (Ohio App. 1995).
Chisholm v. St. Mary’s City Sch. Dist. Bd. of Educ., 2018 U.S. Dist. LEXIS 216192 (N.D. Ohio, Dec. 26, 2018).
Chisholm v. St. Mary’s City Sch. Dist. Bd. of Educ., 2020 U.S. App. LEXIS 573.
Davis v. Monroe County Board of Education, 526 U.S. 629, 633, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999).
Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973).
Lininger v. St. Mary’s City School District Board of Education, 2019 U.S. District LEXIS 6426 (N.D. Ohio, Jan. 14, 2019).
Mountjoy, M., Brackenridge, C., Arrington, M., Blauwet, C., Carska-Sheppard, A., Fasting, K., … & Starr, K. (2016). International Olympic Committee consensus statement: harassment and abuse (non-accidental violence) in sport. British Journal of Sports Medicine, 50(17), 1019-1029.
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80-81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998).
Patterson v. Hudson Area Schools, 551 F.3d 438, 444 (6th Cir. 2009).
Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 109 S. Ct 1775, 104 L. Ed. 2d 268 (1989).
Peitsmeyer v. Jackson Twp. Bd. of Trs., 2003-Ohio-4302, 2003 Ohio App. LEXIS 3809 (Court of Appeals of Ohio, Tenth Appellate District, Franklin County August 14, 2003, Rendered).
Reamsynder v. Jaskolski, 10 Ohio St. 3d 150, 10 Ohio B. 485, 462 N.E.2d 392, 394 (Ohio 1984).
Spruit, A., Kavussanu, M., Smit, T., & IJntema, M. (2019). The relationship between moral climate of sports and the moral behavior of young athletes: A multilevel meta-analysis. Journal of Youth and Adolescence, 48(2), 228-242.
