By Gary Chester, Senior Writer
There is discrimination and then there is a pattern of discrimination. Without evidence of the latter, a cause of action for the former may fail. That is the reminder of Cody v. Kenton, No. 2:20-cv-103 (E.D. Ky. Feb. 10, 2023).
Background
Tenth-grade basketball players, Treshawn Cody and Tyler Szabo, claimed that their school system, Kenton County Public Schools (“the District”), discriminated against them in violation of 42 U.S.C. § 1983 and under the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA).
The action was brought by Randy and Sharon Szabo, the parents of Tyler and the legal guardians for Treshawn, who is Black, and has disabilities including a cognitive deficit and Attention Deficit Hyperactivity Disorder (ADHD).
From December 13, 2017 to February 19, 2018, there was a series of incidents involving the students and their basketball coaches, Roger Stainforth and Thaddeus Highbaugh. In May 2018, the Szabos withdrew the two students from the District.
The Szabos subsequently instituted this action against the District on behalf of the two students. In turn, the District moved for summary judgment.
The Essential Facts
On December 1, 2017, Sharon Szabo advised Coach Stainforth that she would prefer that Treshawn and Tyler play on the junior varsity basketball team instead of the varsity team. She reported that two other students on the varsity team told Treshawn to “go sit with his white friends.” However, she did not lodge a formal complaint.
Two weeks later, Treshawn told Coach Stainforth that he was skipping practice because he needed a “mental break.” Stainforth perceived Treshawn’s actions as “aggressive” and his attitude as “disrespectful.” He was prohibited from playing the next game.
The following day, Treshawn came into Stainforth’s office and asked if he could play on the junior varsity team in a manner that the coach perceived again as “agitated and aggressive.” After Stainforth conferred with the athletic director, he removed Treshawn from the team. However, after meeting with the Szabos, Stainforth permitted Treshawn to return to the team after a two-week suspension.
Plaintiffs alleged that on February 12, 2018, Coach Highbaugh told four other players not to “hang out with Tyler” because doing so would “affect [their] playing time.” Highbaugh allegedly treated Tyler differently from other players and disrespected him.
On February 26, 2018, Treshawn was suspended from school for one day for telling a cafeteria worker that she made him “horny.” Coach Stainforth and the athletic director agreed to dismiss Treshawn from the team. School records showed that Randy Szabo had “no argument” with the decision.
Sharon Szabo subsequently asked the school principal to switch Tyler out of Coach Highbaugh’s class. Her request was granted. Next, the Szabos met with school officials to discuss bullying and other issues concerning Treshawn and Tyler. The school said it investigated and found no evidence of bullying.
After withdrawing the two students from the District, the Szabos requested a due process hearing with the Kentucky Department of Education to address the District’s alleged failure to accommodate Treshawn’s disability needs. The parties reached a settlement covering claims under the Individuals with Disabilities Education Act and the Rehabilitation Act.
On July 21, 2020, the Szabos filed a federal lawsuit on behalf of both students alleging violations of due process and equal protection, disability discrimination, racial discrimination, and bullying and harassment. The named defendants in the lawsuit were the District, Coach Stainsforth, the school principal, and other individuals. The students were adults, but they had given power of attorney to the Szabos.
The Summary Judgment Motion
After finding that the Szabos had properly filed the action in the students’ names as attorneys-in-fact, the court turned to the plaintiffs’ Section 1983 claims. The plaintiffs claimed that the defendants violated the Fourteenth Amendment by depriving them of the right to be educated, including extracurricular activities, in an environment free of discrimination, retaliation, harassment and bullying. To state a claim under Section 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States.
The court dismissed the due process claims because it is “well-established that students do not have a general constitutional right to participate in extracurricular athletics.” [Lowery v. Euverard, 497 F.3d 584, 588 (6th Cir. 2007).] Also, there was no evidence that the plaintiffs were deprived of their right to be educated in an environment free from discrimination, since the alleged incidents did not involve academics.
As to the plaintiffs’ claim that the defendants denied them equal protection, the court stated that a plaintiff must show that “the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.”
The students asserted that another player, who is also Black, said “This play fucking sucks” during basketball practice and his only consequence was that he had to play a scrimmage on the JV team. The court was skeptical that that student’s conduct was similar to Treshawn’s conduct, and noted that since both students were Black, “no suspect class could have been targeted.”
As to Tyler, the plaintiffs cited an incident where Coach Highbaugh asked who was ready to go back into the game and Tyler and one other student were the only ones who did not raise their hands. Both were sent to the locker room. The court stated: “That is the exact opposite of disparate treatment as both players who engaged in the same conduct were subjected to the same consequence.”
Since the plaintiffs failed to present any evidence that other students had engaged in similar conduct but were treated differently, the court dismissed the equal protection claims.
The court similarly found insufficient evidence to support the bullying claim, and no evidence that the District had a policy or a custom of discriminating, harassing, or retaliating against students.
For Treshawn to prevail on his ADA claim, he needed to prove that similarly situated non-protected students were treated more favorably. The plaintiffs relied on reports of an incident in which a student used a racial slur and pushed another student at a basketball scrimmage, but was not punished. The court did not consider the incident because it was based on hearsay, and stated that even if it was comparable, “Defendants have offered a nondiscriminatory reason for their actions: namely, that Treshawn’s behavior and attitude over time warranted the consequences imposed on him.”
The court also rejected the claims of racial discrimination, the claim that Tyler was subjected to retaliation by the two coaches because of his familial relationship to Treshawn, and the claims of bullying and harassment.
The Takeaway
Plaintiff’s attorneys who accept Section 1983 and similar cases take a risk if they do not have reliable evidence of past discrimination because discovery may not reveal more favorable treatment of those similar situated.
