The 7th U.S Circuit Court of Appeals has reversed a lower court’s summary judgment ruling, agreeing with a pair of female high school basketball players that several Indiana school districts may have violated Title IX when they scheduled the boys’ basketball games during the weekend.
The panel of judges, whose ruling cleared the way for a trial, also held that the school districts were not entitled to Eleventh Amendment sovereign immunity from the plaintiffs’ equal protection claim.
The girls’ basketball season at Franklin County High School starts two weeks before the boys’ season. During this time, the girls’ games are scheduled for prime time nights, or evenings that precede days without school. Allegedly, these games attract “large crowds, (as well as) substantial student and community support in the stands, and the presence of the band, cheerleaders, and dance teams.”
The panel continued that after the boys’ season starts, the girls’ games are “relegated” to week nights, where “the atmosphere is dramatically different. The girls lose the larger Friday night audience, pep band, cheerleaders, and dance team. The bleachers are nearly deserted; there is a lack of student and community support. The girls struggle to complete their homework and study for tests.”
Further, nearly 95 percent of the Franklin boys’ varsity basketball games, but less than 53 percent of the Franklin girls’ games, were played in primetime during the 2010-11 season.
Amber Parker was the head coach of the girls’ varsity basketball team at Franklin County High School. In April 2007, Parker asked Franklin Athletic Director Beth Foster to allow the girls’ basketball team to play games in primetime on an “equal basis with the boys’ team.” Foster told her that the schedules are set in multi-year contracts. She would also testify later that she approached her fellow ADs in the Eastern Indiana Athletic Conference (EIAC) about giving the girls’ teams more prime time slots, but they “refused.”
So Parker sued her school district and others in the EIAC on behalf of her daughter J.L.P., who was part of her team. The defendants subsequently moved for summary judgment, which was granted, spawning the appeal.
The court ultimately zeroed in on “whether the defendants were on notice under the plain statement doctrine as most recently articulated in Sossamon v. Texas, 131 S. Ct. 1651 (2011), that they were intentionally violating the clear terms of Title IX by the disparate scheduling practices even though they were otherwise providing the girls with equal athletic opportunity in the sport programs offered? We asked for supplemental briefing on this issue and the defendants essentially conceded that a private right of action can arise for an equal treatment type claim where the sport specific ‘disparity is substantial enough by itself to deny girls . . . equality of athletic opportunity.’ Instead of arguing that this suit is barred by the plain statement doctrine, the defendants contend that the plaintiffs have failed to show a pervasive, substantial disparity.
“Thus, the defendants have waived this argument by not raising it before the district court or developing it on appeal. See, e.g., Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs., 603 F.3d 365, 370 (7th Cir. 2010) (Eleventh Amendment defense is waivable) (citing Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 620 (2002)).
“We don’t disagree with the defendants that Title IX requires a systemic, substantial disparity that amounts to a denial of equal opportunity before finding a violation of the statute, see, e.g., Davis, 526 U.S. at 650 (deliberate indifference to sexual harassment not actionable unless harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school), so it is to that issue we now turn.
“While accommodation claims are the subject of most Title IX cases, at least two circuits and a number of district courts have determined that plaintiffs made out a successful equal treatment claim. See McCormick, 370 F.3d at 295-96 (finding school districts’ scheduling of girls’ high school soccer in the spring and the boys’ in the fall deprived the girls but not the boys of the opportunity to compete in the regional and state championships, in violation of Title IX); see also Cmtys. for Equity, 178 F. Supp. 2d at 855-57 (holding that high school athletic association violated Title IX by scheduling athletic seasons and tournaments for girls’ sports during nontraditional and less advantageous times of the academic year than boys’ athletic seasons and tournaments), aff’d, 459 F.3d at 695-96.”
The court quickly determined that two elements weighed heavily for the plaaintiffs – “a difference in scheduling has a negative impact on one sex, and then determine whether that disparity is substantial enough to deny members equality of athletic opportunity” see McCormick, 370 F.3d at 293.
The panel also agreed with the plaintiff that the defendant’s actions were systemic, pointing out that Franklin County had continued its scheduling practice in spite of the fact that the OCR had sent a letter to the IHSAA in 1997, warning schools that they could be found “out of compliance with the scheduling of games and practice times component of the athletic provisions of Title IX if they reserve Friday nights for boys basketball games and schedule girls basketball games on other nights.”
The panel was adamant that the defendant’s actions were damaging, writing “a trier of fact could determine that the present disparity in scheduling has the cyclical effect that stifles community support, prevents the development of a fan base, and discourages females from participating in a traditionally male-dominated sport.”
Parker v. Franklin Cnty. Cmty. Sch. Corp.; 7th Cir.; No. 10-3595 1/31/2012
