A federal judge from the Western District of Arkansas granted, in part, a school district’s motion to dismiss several plaintiffs’ claim that they are entitled to damages under federal laws.
Specifically, the court granted the district’s motion on the question of Title IX, but denied the motion with respect to the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983.
The plaintiffs in the case were Chris Ezell, James Lyles, Donna Lyles, and Wes Mabry, all of which are parents and next friends of their minor daughters, who participate on the Fayetteville High School softball team.
Last summer, they alleged that their daughters endured a series of inequalities between Fayetteville High School’s softball program and its baseball program. They further alleged that the district discriminates against their daughters and other female student-athletes more broadly.
The plaintiffs sought declaratory relief and a permanent injunction restraining the district from continuing its allegedly discriminatory policies and requiring it to implement a plan to comply with Title IX and the Fourteenth Amendment. They also asked the court to award them damages for expenses they incurred for equipment and supplies, which “would not have been incurred by parents of boys similarly situated, and for their daughters’ reduced opportunities to obtain college athletic scholarships.”
The district moved for partial dismissal, arguing that the complaint fails to state a claim for which damages can be granted. The plaintiffs countered that they “have made out a facially plausible claim entitling them to compensatory relief under Title IX and the Equal Protection Clause.”
In its analysis, The court noted that the Supreme Court first recognized the availability of damages under Title IX in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992). The plaintiff in Franklin was a high-school student who sued her school district under Title IX after being subjected to repeated sexual harassment from a teacher. Id. at 63-64. She additionally alleged that the school district became aware of the harassment, but took no action to stop it. Id. After the district court and the circuit court dismissed her complaint on the ground that Title IX did not authorize an award of damages, the Supreme Court reversed. It explained that damages are available to Title IX plaintiffs who allege “intentional discrimination.” Id. at 75.
This standard first came into play in 1998 in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277. Like Franklin, Gebser “was a high-school student who sued her school district under Title IX after one of her teachers sexually harassed her. Unlike Franklin, however, the Gebser plaintiff did not allege that the school district knew about the harassment and failed to address it. Justice O’Connor, writing for the Court, affirmed the circuit court’s dismissal, holding that the plaintiff’s claim could not survive because she did not allege that: (i) the school district had actual notice of the harassment and; (ii) that it responded with deliberate indifference. Id. at 277 (emphasis added). A year later in Davis Next Friend LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999), the Supreme Court applied the Gebser actual-notice-and-deliberate-indifference test to a case involving student-on-student sexual harassment.
“There are two general ways to understand the Gebser and Davis cases. For ease of reference, the Court will refer to the first as the ‘broad understanding’ and the second as the ‘narrow understanding,’ though these labels somewhat oversimplify the underlying issues. The district essentially asks this court to adopt the broad understanding, arguing that the actual-notice-and-deliberate-indifference test announced in Gebser applies to all Title IX damages actions, not only those derived from third parties’ conduct, like sexual harassment cases. This understanding of Gebser and Davis finds support from Gebser’s analysis of Title IX’s express administrative remedy. The administrative remedy requires actual notice of a violation and a chance for voluntary compliance before enforcement proceedings can commence. Id. at 288-289. In light of this express remedial procedure, Gebser explains that It would be unsound, we think, for a statute’s express system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance, while a judicially implied system of enforcement permits substantial liability without regard to the recipient’s knowledge or its corrective actions upon receiving notice. Id. at 289 (emphasis in original).
“Indeed, seizing on this language from Gebser is exactly what the Eighth Circuit did in Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001). There, an individual and a class, separately, sued the University of Minnesota over its Duluth campus’s allegedly discriminatory athletics policies. These allegations were based not upon a third party’s conduct as in Gebser, but instead upon the recipient’s own decisions. Similar to the instant case, the class’s complaint ‘recited at length alleged disparities in the resources and opportunities afforded to the women’s and men’s athletic programs . . . .’ Id. at 575. Adopting the broad understanding of Gebser and Davis, the Eighth Circuit held that because there was no ‘allegation of prior notice of their complaints to appropriate UMD officials, no allegation of deliberate indifference by such officials, and no allegation they had afforded UMD a reasonable opportunity to rectify the alleged violations,’ the plaintiffs were not eligible for damages. Id. (relying on Gebser). The court dismissed the individual plaintiff’s damages claim for the same reason. Id. at 576.
“Grandson, then, stands for the proposition that the Eighth Circuit understands Gebser and Davis broadly: It held that the Gebser test applies even when a recipient’s own decisions, not a third party’s, are at issue.”
The plaintiffs asked this court “to disregard Grandson and to adopt the narrow understanding, arguing that the Gebser test applies only when a plaintiff is alleging a Title IX violation derived from a third-party’s discriminatory conduct.”
The court was unwilling to do so.
Applying the Gebser Test to the instant case, “the plaintiffs have not pled any facts indicating that the district had prior notice of their complaints. Nor have they pled facts indicating that the district responded to any such notice with deliberate indifference. The plaintiffs have therefore failed to state a claim for damages upon which relief can be granted under Title IX.”
Turning to the question of whether there are available damages under the Equal Protection Clause and § 1983, the court noted that Fourteenth Amendment to the United States Constitution provides that “no State shall make or enforce any law which shall. . . deny to any person within its jurisdiction the equal protection of the laws.” This protection and others are enforced by affected persons through 42 U.S.C. § 1983, which provides that “every person who, under color of [law] . . . of any State. . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
“Since § 1983, unlike Title IX, provides litigants with an express remedy at law, no special test is needed to determine whether the plaintiffs can recover damages if the district violated their daughters’ constitutional rights. Still, while distinct, the Title IX and Equal Protection inquiries are analytically parallel, as only acts of intentional discrimination can violate the Equal Protection Clause. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979) … .The district accordingly argues that the phrase ‘intentional discrimination’ in the Equal Protection context requires the plaintiffs to plausibly allege that they acted with animus, and that the plaintiffs have failed to do so.
“The court disagrees. It finds that the plaintiffs have plausibly alleged that the district’s policies constitute disparate treatment based on facially gender-based classifications. As a result, the district’s policies are subject to heightened scrutiny under black-letter Equal Protection law.”
The court went on to find that the plaintiffs “have plausibly alleged that their daughters were separated and treated unequally, such that disparate treatment analysis based on facial discrimination is warranted. Among other inequities, The plaintiffs have plausibly alleged that their daughters face disparate treatment based on gender classifications made with respect to: (i) the provision of equipment and supplies; (ii) the availability of an extra school-period for training and practice; (iii) the quality and quantity of coaching; (iv) the quality of training, practice, locker room, and competition facilities; and (v) the public promotion of teams. Given that the plaintiffs have plausibly alleged facts indicating disparate treatment based on facial discrimination, they do not need to plausibly allege that the district acted with animus in order to maintain their Equal Protection claim. The district’s motion to dismiss the plaintiffs’ Equal Protection Claim for damages is, therefore, denied.”
Chris D. Ezell, as parent and next friend of his minor daughter, K.E.; James Lyles and Donna Lyles, as parents and next friends of their minor daughter, E.L.; and Wes R. Mabry, as parent and next friend of his minor daughter, M.M., v. Fayetteville Public Schools a/k/a Fayetteville School District; Dr. Paul Hewitt in his official capacity as Superintendent of Fayetteville Public Schools; W.D. Ark.; CASE NO. 5:15-CV-05161, 2015 U.S. Dist. LEXIS 169102; 12/15/15
Attorneys of Record: (for plaintiffs) Samuel John Schiller, LEAD ATTORNEY, PRO HAC VICE, Schiller Law Firm, Cookeville, TN. (for defendants) Roger Christopher Lawson, LEAD ATTORNEY, Friday, Eldredge & Clark, LLP, Fayetteville, AR.
