By John J. Miller, Ph.D.
A former St. Marys (OH) Memorial High School football player, Dane Chisholm, brought sexual harassment charges against his high school football coach, Paul Frye (Chisholm v. St. Marys City School District Board of Education, 2018). Chisholm alleged that Frye regularly insulted him and use other derogatory terms aimed at his masculinity. Chisholm also contended that St. Marys City School Board of Education (hereafter the Board) discriminated against him under Title IX and was negligent in the hiring of Frye. Chisholm also alleged that the Board, Frye, school superintendent, and athletic director violated his constitutional rights to equal protections and substantive due process. Finally, Chisholm brought claims against all the aforementioned parties for intentional infliction of emotional distress, gross negligence, bad faith, reckless, wanton and intentional conduct (Chisholm v. St. Marys City School District Board of Education, 2018).
Frye, who had previously coached at St. Marys from 1999-2010, was rehired in 2013 (Chisholm v. St. Marys City School District Board of Education, 2018). St. Marys superintendent of schools, Shawn Brown, hired Frye from Wapakento (OH) High School by noting that Frye coached winning teams and involved players in the community while attracting the attention of college scouts. However, Frye had gain unwanted attention at other coaching positions due to his propensity to use profane or degrading language towards his players. In 2013, Frye signed a consent agreement to submit quarterly reports to the Ohio Department of Education regarding his behavior and treatment of students. Brown acknowledged he knew of these complaints but perceived them as being resolved as all of the school districts continued to employ Frye at their schools. In fact, Brown testified that he took steps to investigate by interviewing the superintendents at schools that previously employed Frye. Neither superintendent expressed concerns about hiring Frye. Despite some misgivings expressed by several parents about hiring Frye, Brown offered him the position of head football coach that was approved by the Board (Chisholm v. St. Marys City School District Board of Education, 2018).
According to the complaint, Chisholm claimed that Frye regularly yelled at his players, using inflammatory, and often vulgar, language (Chisholm v. St. Marys City School District Board of Education, 2018). Additionally, Chisholm alleged that Frye generated an atmosphere in which players were often expected to play with injuries. Interestingly, Chisholm never complained about Frye’s antics to his parents or school administrators while he was playing for Frye. It was only after Chisholm had been voted off the team by other players, that he informed his father about the alleged mistreatment by Frye.
After Chisholm expressed his concerns, the father initially declined to make a formal complaint. However, after contacting another father of a player voicing similar issues of mistreatment by Frye, Chisholm’s father as well as three other parents formally complained to Brown (school superintendent) and James Hollman (school athletic director) about Frye’s alleged actions and asked to have him removed from his position as head football coach. It should be noted that the other father (Dave Lininger) Chisholm’s father contacted had encouraged Brown to recommend Frye to the Board. However, Lininger’s son, Reid, also had litigation against the same defendants (Lininger v. St. Marys City School District Board of Education, 2019).
An independent investigator was hired to investigate the charges lodged by Chisholm against Frye (Chisholm v. St. Marys City School District Board of Education, 2018). The investigator concluded that the enquiry did not bear out the allegations. Additionally, the parents filed a complaint with the Ohio Department of Education (ODE) regarding Frye’s alleged actions. The ODE concluded its investigation by stating that no disciplinary action will be pursued (Chisholm v. St. Marys City School District Board of Education, 2018).
According to the complaint, the plaintiffs brought three causes of action against the defendants. The first cause of action was a claim that the Board violated his rights under Title IX due to suffering sexual harassment based on gender stereotypes; and retaliation for participating in Title IX-protected activity (Chisholm v. St. Marys City School District Board of Education, 2018). To generate a prima facie case for the Title IX claim of sexual harassment, Chisholm needed to exhibit the following:
(1) that the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive [him] of access to the educational opportunities or benefits provided by the school, (2) the funding recipient had actual knowledge of the sexual harassment, and (3) the funding recipient was deliberately indifferent to the harassment (Patterson v. Hudson Area Schools, 2009, p. 445).
However, the court reported that Frye did not single out Chisholm due to any unique, observable, or gender non-conforming characteristics. As a result, on the first cause of action the court agreed with the defendants that Chisholm did not suffer from harassment based on his sex.
A second cause of action, claimed by Chisholm, was that the Board retaliated against him regarding his Title IX rights. To support such a Title IX claim, Chisholm was required to show that: (1) he engaged in protected activity, (2) [the Board] knew of the protected activity, (3) he suffered an adverse school-related action, and (4) a causal connection exists between the protected activity and the adverse action (Gordon v. Traverse City Area Public Schools, 2017, p. 320). The Board contended that Chisholm did not participate in a protected activity. Additionally, the court noted that the letter of complaint from the parents identified name-calling but did not mention sex or the students’ Title IX rights. Thus, the court in this case ruled against Chisholm’s complaint.
The third cause of action was one in which Chisholm raised constitutional equal protection claims against all defendants for acting “under color of” state law, violating a plaintiff’s federal constitutional or statutory rights. Additionally, Chisholm contended that all the defendants deprived him of equal protection as well as violated his substantive due process rights. For both assertions, the court found that Chisholm’s claims failed.
Title IX for Sexual Harassment
Title IX provides 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). In 1999, the United States Supreme Court (hereafter referred to as the “Court”) established the basis for defining an educational institution’s liability as when students are allegedly harassed by employees of the school (Gebser v. Lago Vista Independent School District, 1999). The Court conveyed a three-pronged test for an implicit right of action under Title IX indicating that a public school official must (1) have the authority to institute corrective measures, (2) have actual notice of the misconduct, and (3) display deliberate indifference to the misconduct. (Gebser v. Lago Vista Independent School District, 1999)
There is a two-step process to prove sexual harassment. The initial step requires the student to show that harassment was based on the student’s sex (Tumminello v. Father Ryan High School, Inc., 2017). Secondly, the student must demonstrate that the harassment was so harsh, persistent, and objectively offensive that it prevented the student from gaining access to an educational opportunity or benefit (Davis ex rel. LaShanda D. v. Monroe City Board of Education, 1999). Chisholm perceived that Frye harassed him because he did not conform to male stereotypes. However, subjective perceptions alone cannot form a gender-stereotyping sexual harassment claim (Vickers v. Fairfield Medical Center, 2006). According to the complaint, Frye deliberately used terms that referred to “stereotypically feminine characteristics” to re-enforce “traditional notions of masculinity”. In order to be successful in the complaint, Chisholm needed to disclose how he “did not conform to traditional gender stereotypes in an observable way and that these characteristics were the basis of his harassment.” Additionally, Chisholm needed to prove that Frye’s conduct did not just address sexual connotation but essentially represented discrimination because of sex (Vickers v. Fairfield Medical Center, 2006). Yet, because Frye used perceived abusive language towards the entire team, his language did not isolate Chisholm for unique, observable, gender non-conforming characteristics.
Retaliation
It should be noted that discrimination is protected by Title VII and Title IX. Whereas Title IX does not permit discrimination on the basis of sex, Title VI disallows discrimination on the basis of race, color, or national origin. According to Jackson v. Birmingham Board of Education (2005) retaliation is discrimination on the basis of sex. Further retaliation is considered an intentional act that discriminates against a person who is being exposed to differential treatment (Jackson v. Birmingham Board of Education, 2005). While Title IX protects individuals who “complain of sex discrimination” from retaliation, if the charge is unclear it is inadequate and it may not be considered a Title IX-protected activity (Booker v. Brown & Williamson Tobacco Co., 1989). In fact, previous courts have rejected protecting complainants who have used Title IX for sex discrimination or harassment cases that do not sufficiently reveal the description of the alleged legal violation (McKinley v. Skyline Chili, Inc., 2012; Pastura v. CVS Caremark, 2012). In order to illustrate that retaliation, as it applies to Title IX, Chisholm needed to show that he: (1) engaged in protected activity, (2) the school board had knowledge of the protected activity, (3) he suffered an adverse school-related action, and (4) a causal connection exists between the protected activity and the adverse action. However, the court ruled that Chisholm’s allegations were vague in their applications.
Equal Protection and Substantive Due Process
In order for an Equal Protection Clause to be used in a claim, Chisholm needed to show that he was intentionally discriminated against and was a member of a protected class. Additionally, the court asserted that to prove his equal protection claim, Chisholm “must state a prima facie case of sex discrimination. The defendants contended that Chisholm’s equal protection claim did not meet the standards because he did not provide that any alleged act or omission by defendants was based upon his gender. Accordingly, Chisholm’s equal protection claim was denied.
The court in Pearson v. Grand Blanc (2002) stated that substantive due process is a doctrine which the “… governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed” (p. 13). Within substantive due process, two types of claims can be made. First, is the deprivation of a specific constitutional promise. The second type refers to actions that shock the conscience. However, the second type of claim is challenging to prove. For example, for shock the conscience to occur, the actions must be ‘so egregious’ that it can be said to be arbitrary in the constitutional sense while defying the integrities of normally accepted conduct (Ewolski v. City of Brunswick, 2002). In other words, the conduct is so heartless and insulting that in no way is it associated with the conventional concepts of fair play and decency (Ewolski v. City of Brunswick, 2002). However, the shock the conscience standard does not apply in Title IX cases.
Previous courts have indicated that insults, as claimed by Chisholm in this case, do not by themselves violate substantive due process and verbal abuse is not a constitutional infringement (L.H. v. Pittman Area School District, 2016). Moreover, even excessive verbal abuse is usually unsatisfactory in ascertaining a constitutional deprivation (Abeyta ex rel. Martinez v. Chama Valley Independent School District, 1996). As a result, because the totality of the circumstances suggests Frye’s conduct did not shock the conscience, the court found that Chisholm did not provide conscience-shocking conduct.
Conclusion
While the court in this case found for the defendants, it is important to remember that coaches have a duty to present themselves as a model for their athletes. Since coaches are often hired because of their experience and knowledge of the sport, courts have imposed a heightened duty of care on them, especially when those individuals are responsible for teaching a dangerous activity such as football (Kahn v. East Side Union High School District, 2004; Knight v. Jewett, 1992). It is disturbing, then, that another member of the same football team filed a lawsuit alleging the same actions by Frye also occurred (Lininger v. St. Marys Independent School District Board of Education, 2019). Sexual harassment, physical abuse, and verbal abuse by coaches are negative elements that can critically affect the physical and psychological health of young participants leading to decreased athletic performances and psychosomatic illnesses (Mountjoy et al. 2016). Yet, studies have reported that verbal abuse by a coach to an athlete is the norm in sports (Swigonski et al. 2014; Vertommen et al. 2016; Yabe, Hagiwara, et al., 2018). Whether the court found against Chisholm and Lininger or not, negative associations of verbal and physical abuse can lead to unnecessary aspects that could haunt young people for the remainder of their lives.
Dr. Miller is a visiting professor in Sport Management in the College of Business & Economic Development at The University of Southern Mississippi.
References
Abeyata ex rel. Martinez v. Chama Valley Independent School District, No. 19, 77 3d 1253, 1258 (10th. Cir. 1996).
Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989).
Davis ex rel. LaShonda D. v. Monroe City Board of Education, 526 U.S. 629, 634, 119 S. Ct. 1661, 143 L.Ed. 2d 839 (1999).
Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir. 2002).
Gebser v. Lago Vista Independent School District, 524 U.S. 274, 304 (1999).
Gordon v. Traverse City Area Pub. Sch., 686 Fed. Appx. 315, 320 (6th Cir. 2017)
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 184, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005).
Kahn v. East Side Union High School District, 75 P. 3d 30 (Cal. 2003).
Knight v. Jewett, 834 P.2d 696, 710 (Cal. 1992).
L.H. v. Pittson Area School District, 666 Fed. App’x 213, 217 (3d Cir. 2016), 287 F.3d 492, 510 (6th Cir. 2002).
Lininger v. St. Marys City School District Board of Education, 2019 U.S. District LEXIS 6426 (N.D. Ohio, Jan. 14, 2019).
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Mountjoy, M., Brackenridge, C., Arrington, M., Blauwet, C., Carska-Sheppard, A., Fasting, K., Kirby, S., Leahy, T., Marks, S., Martin, K., Starr, K., Tiivas, A. & Budgett, R. (2016) International Olympic Committee consensus statement: Harassment and abuse (non-accidental violence) in sport. British Journal of Sports Medicine, 50, 1019-1029.
Pastura v. CVS Caremark, CVS Caremark 2012 U.S. Dist. LEXIS 182991, 2012 WL 6738660, *10 (S.D. Ohio).
Patterson v. Hudson Area Sch., 551 F.3d 438, 444-45 (6th Cir. 2009).
Pearson v. Grand Blanc., 961 F.2d 1211, 1216 (6th Cir. 2002).
Tumminello v. Father Ryan High Sch., Inc., 678 Fed. App’x 281, 284 (6th Cir. 2017).
Vertommen, T., Schipper-van Veldhoven, N., Wouters, K., Kampen, J.K., Brackenridge, C.H., Rhind, D.J., Neels, K. & Van Den Eede, F. (2016) Interpersonal violence against children in sport in the Netherlands and Belgium. Child Abuse & Neglect, 51, 223-236.
Vickers v. Fairfield Medical Center, 453 F.3d 757, 764 (2006).
Yabe, Y., Hagiwara, Y., Sekiguchi, T., Momma, H., Tsuchiya, M., Kuroki, K., … & Sogi, Y. (2018). The characteristics of coaches that verbally or physically abuse young athletes. The Tohoku Journal of Experimental Medicine, 244(4), 297-304.
