By Brian Nuedling, of Jackson Lewis
(Editor’s Note: The following appears in Title IX Alert, a sister periodical of Hackney Publications. More content related to Title IX can be viewed there.)
At its most basic level, Title IX is about fairness. The principle that opportunities will be offered equally, that money will be spent evenly, and that the competition will occur on the playing fields, rather than in the athletic department, is the ultimate goal in what is certainly a more nuanced analysis that it might seem. For decades, courts have wrestled with the subtleties of athletic opportunities, including the crossover issue that arises when a female student-athlete wants to join the boys team (or vice versa). In such an instance, is it incumbent upon a school to grant the choice of a particular team, or is it enough that the sport of choice is sufficiently available, such that no playing time is lost or athletic opportunities forfeited?
Faced recently with deciding where the line should be drawn, a West Virginia court leaned toward the sport, finding that a high school soccer player would not likely succeed in reversing a school decision that kept her from joining the boys team when another option was available to her.
Background Facts
In Gregor v. West Virginia Secondary Schools Activities Commission,[1] Plaintiff Joseph Gregor filed suit in the United States District Court for the Southern District of West Virginia after his daughter, a soccer player, was prohibited from joining the boys team, despite being invited to do so by the boys soccer coach. Anna Gregor, a high school junior, had hoped to join the boys squad as a means of competing at a different level and thereby improving her preparation for college soccer. Her lawsuit brought five claims against the West Virginia Schools Activities Commission and the West Virginia Board of Education, including an alleged violation of her rights under Title IX of the Education Amendments of 1972 and unlawful retaliation in violation of Title IX.[2] While ordinarily intended as a vehicle for maintaining the status quo, Gregor sought to advance her claim by bringing a motion for a preliminary injunction against the defendants. Such a filing put the court squarely in the position of opining on Gregor’s prospects for success (within the well-settled analytical framework of preliminary relief) without rendering a decision on the merits of her case.
Court Analysis
As outlined by the United States Court of Appeals for the Fourth Circuit, a plaintiff seeking preliminary relief must establish a likelihood of success on the merits, demonstrate a likelihood of irreparable harm absent the preliminary relief, show that the balance of equities falls in the plaintiff’s favor, and persuade a court that an injunction is in the public interest.[3] To be granted a preliminary injunction, a plaintiff must succeed on all four prongs.
In assessing the first element—likelihood of success on the merits—the court observed that Gregor’s discrimination claims were “inextricably linked” to her Title IX retaliation claim. The court noted that, in bringing the motion, Gregor had cited Mercer v. Duke University, a Fourth Circuit case involving a female student-athlete who was offered a spot on the Duke football team but then prohibited from joining because of her gender. [4] The court found Mercer distinguishable because while football was offered to only male athletes in Mercer, Gregor’s high school offered both a boys and a girls soccer team. The court further noted that Gregor’s retaliation claim would turn on whether preventing her from practicing with the boys soccer team would be construed as an adverse action, rather than one that the school could permissibly take. Hinting that the decision on that question might not be in her favor, the court found that Gregor had not demonstrated a likelihood of success on the merits of her discrimination claims and the retaliation claim.
As to the second prong of irreparable harm, the court noted that each of Gregor’s five claims alleged the same injury, that of not being permitted to practice or play with the boys soccer team. Gregor alleged that the ban would prevent her from further developing her skills and would harm her chances of being recruited to play collegiate soccer. The court observed that while courts are divided on whether a lack of athletic participation constitutes irreparable harm, most courts lean toward a finding of the harm being “irreparable” only when the student-athlete cannot participate in the sport at all.[5] Such a finding by other courts, coupled with Gregor’s admission that very little of the soccer remained to be played,[6] convinced the court that irreparable harm would not occur if the preliminary injunction were denied. Having concluded that Gregor had failed to demonstrate both a likelihood of success on the merits and the presence of irreparable injury, the court dispensed with the remaining prongs of the preliminary injunction test and denied Gregor’s motion.
The Limitations of Title IX
One of the byproducts of Title IX litigation is that time is not on the side of the student-athlete. The athletic season, and the particular sport at issue, will not wait for the methodical court process to be completed before letting the games proceed. Time will simply tick away for the athlete seeking to assert competitive rights. While seeking preliminary relief might be the only meaningful option for expediting the intended outcome, it forces the parties to show their hand and the court to determine what likely will be the final outcome. To the extent that student-athletes can find other ways to navigate the battle lines, they would be well-served. If, however, their hopes for playing time during a season already in progress collide with the one-step-at-a-time court process, victory might seem elusive or not entirely satisfying. Moreover, the Gregor court, and others that have faced a similar question, have found it harder to side with the plaintiff when the student-athlete’s options are not limited to joining the other gender. In those instances, courts have found that the concept of equity in the world of Title IX jurisprudence does not compel the student-athlete’s desired outcome, but only one that on balance appears objectively fair.
[1] No. 2:20-cv-00654, 2020 U.S. Dist. LEXIS 199760 (S.D. W. Va. Oct. 27, 2020).
[2] Gregor’s remaining claims alleged a violation of her rights under the Fourteenth Amendment to the United States Constitution, the equal protection principles of the West Virginia Constitution, and the West Virginia Human Rights Act.
[3] See, e.g., Winter v. Nat’l Res. Def. Council, 555 U.S. 7 (1998).
[4] 190 F.3d 643 (4th Cir. 1999). Gregor’s motion also cited Israel v. W. Va. Secondary Schs. Activities Comm’n, 182 W. Va. 454, 388 S.E.2d 480 (W. Va. 1989), which turned on whether softball was similar enough to baseball to justify it as an alternate activity for female high school athletes who were prohibited from trying out for the baseball team. The Gregor court found that Israel did not directly apply because the boys and girls soccer teams at Gregor’s high school were the same.
[5] The court cited Reed v. Neb. Sch. Activities Ass’n, 341 F. Supp. 258 (D. Neb. 1972) (finding irreparable harm when a female athlete would not be able to play golf at all if not permitted to join the boys team), and D.M. v. Minn. State High Sch. League, 917 F.3d 994 (8th Cir. 2019) (finding irreparable harm when the boys would not have a dance team for competition if not permitted to join the girls team).
[6] In a request for supplemental briefing, Gregor informed the court that there were perhaps only two games and two practices left in the season. Any further competition would be playoff games that would be contingent on the outcome of the two scheduled games.
