Female Football Player’s Claim Can Continue After Mixed Ruling

Sep 11, 2009

A federal judge from the Western District of Wisconsin has rebuffed a school district in a bid for a summary judgment ruling in a case in which a female student athlete competing on a high school football team was injured after she was allowed to practice without pads.
While the court allowed the negligence portion of plaintiff Ivyanne Elborough’s claim to continue, it dismissed her claim as it related to Title IX, since the plaintiff “failed to show that the district had adequate notice of the alleged discriminatory acts against her.”
Elborough joined the Evansville High School freshman football team in the beginning of August 2007 as the only female team member. She alleged that over the next few weeks, defendants Evansville Community School District and Ron Grovesteen (the head football coach) “discriminated against her on the basis of sex by failing to keep the girls’ locker room unlocked, keeping snacks and the practice schedule in the boys’ locker room where she was not allowed and telling her she needed to get her hair cut ‘like a boy.’”
On August 30, the plaintiff’s mother complained about the treatment to defendant Grovesteen and two school administrators. Shortly thereafter, the plaintiff came to practice, but was unable to find anyone to unlock the girls’ locker room so that she could put pads on. She participated in a number of practice drills without any pads and Grovesteen did not stop her from doing so. The plaintiff hurt her shoulder during one practice drill and then fractured her clavicle during another.
The plaintiff sued the school district under Title IX of the Education Amendments of 1972, the due process clause and state law as well as defendant Grovesteen under the equal protection clause, the due process clause and state law.
The defendants moved for summary judgment.
In addressing the Title IX claim first, the court favored the defendants’ argument that “the cases in which courts have recognized private rights of action under Title IX involve outright exclusions from a program or activity, e.g., Mercer v. Duke University, 190 F.3d 643 (4th Cir. 1999), or instances of serious misconduct such as sexual abuse. E.g., Doe v. Smith, 470 F.3d 331 (7th Cir. 2006); Delgado v. Stegall, 367 F.3d 668 (7th Cir. 2004). Although these cases do not necessarily represent a minimum requirement, plaintiff has not cited a single case in which a court concluded that it was appropriate to hold an institution liable under Title IX in circumstances even remotely similar to those in this case.”
Turning to the Due Process Clause, the court found that defendant Grovesteen’s “alleged error is his failure to stop plaintiff from participating in the practice, not requiring her to do so,” it wrote. “Under the law of this circuit and the Supreme Court, such a failure may show poor judgment on defendant Grovesteen’s part, but it does not constitute a violation of due process. Further, because plaintiff fails to show a Constitutional violation by an individual, she cannot maintain her claim against the school district. King, 496 F.3d at 819 (to hold municipality liable, plaintiff must first show violation of constitutional rights by municipal employee). Accordingly, I must grant defendants’ motion for summary judgment with respect to plaintiff’s claims under the due process clause.”
The plaintiff was more fortunate with her Equal Protection Clause and state law claim. The court found that “a reasonable jury could find that defendant Grovesteen allowed plaintiff to play without protective equipment because of her sex (for the purpose of her equal protection claim) and that he disregarded a ‘known danger’ (for the purpose of her state law claim)
Ivyanne Elborough et al v. Evansville Community School District; W.D. Wis.; 08-cv-447-bbc, 2009 U.S. Dist. LEXIS 52803; 6/23//09
Attorneys of Record: (for plaintiffs) Jeff Scott Olson, LEAD ATTORNEY, Andrea Joyce Farrell, Jeff Scott Olson Law Firm, Madison, WI. (for defendant) Ron Grovesteen, Defendants: Krista K Buchholz, Leib & Katt, LLC, Milwaukee, WI.


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