A federal court in the District of Minnesota has threatened to dismiss the claims of several girls’ ice hockey fans, who alleged that the Office of Civil Rights failed to properly investigate what they claimed was an act of sexual discrimination, unless the plaintiffs re-file their complaints in a manner that confers standing.
The court specifically gave the plaintiffs 30 days “to either amend the complaint to explicitly state that they are pursuing this action on behalf of their minor children, or to allow their daughters to intervene in or join this action.”
The plaintiffs, Arthur Cobb and George Saly, are Minnesota residents and fathers of female ice hockey players. They sued the United States Department of Education (DOE), Office for Civil Rights (OCR) and several DOE employees after they became frustrated with the ongoing investigation of the Minnesota State High School League and its administration of the girls’ and boys’ state interscholastic varsity ice hockey tournaments.
At issue was the fact that the league had scheduled the boys tournament at the more spacious and modern Xcel Energy Center, while the girls tournament was relegated to the Minnesota State Fair Coliseum. Over the course of several years, the OCR, which is a federal agency responsible for enforcing the provisions of Title IX to the Education Amendment of 1972, 20 U.S.C. §§ 1681 – 1688, intervened to force the league to reschedule the tournament at a more comparable venue.
The plaintiffs essentially charged that that change was slow and that the gender equity it was supposed to encourage was uneven. They alleged four causes of action against the OCR: Count I alleges violations of equal protection rights pursuant to 42 U.S.C. §1983; Count II claims discrimination pursuant to Title IX; Count III alleges that OCR aided and abetted sex discrimination caused by the League; and Count IV alleges conspiracy to discriminate on the basis of sex pursuant to 42 U.S.C. §1985(3).
The defendants moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b) (1) on the basis that plaintiffs do not have standing to pursue their claims. The defendants also moved to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
In assessing the motion, the court noted that “the burden of proof in a suit challenging the legality of government action, as in this case, which does not [*17] involve Plaintiffs themselves as the objects of the action, is ‘substantially more difficult to establish.’ Id. (citing Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984).”
It further zeroed in on the Supreme Court’s recognition “that the denial of benefits on the basis of gender stigmatizes the disfavored class. In Heckler v. Mathews, the Supreme Court held that discrimination, ‘by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.’ Heckler, 465 U.S. at 739-40 (citation omitted); see also Roberts v. United States Jaycees, 468 U.S. 609, 625, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984) (finding that stigmatizing injury ‘deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic and cultural life.’).
“However, the Court has made clear that a plaintiff has standing to assert a stigmatizing injury only when “personally denied equal treatment.” Allen, 468 U.S. at 755 (citing Heckler, 465 U.S. at 739-740). Plaintiffs have not alleged that they themselves suffered [*19] discriminatory treatment, or even that they suffered retaliation or other injury as a result of asserting the rights of the female ice hockey players. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005). Plaintiffs allege only that the female ice hockey players and their fans suffered the effects of gender discrimination, not that they themselves suffered personal injury as the result of Defendants’ alleged discrimination.”
“Plaintiffs’ second theory of injury appears to be that Defendants’ failure to enforce Title IX harmed them because as members of society, they have a right to be free from discrimination.” This argument also failed.
The court summarized that the plaintiffs do not have standing “to pursue claims against Defendants because they were not injured by OCR’s conduct. The proper Plaintiffs in this action are any female ice hockey players who may have been injured by Defendants’ conduct. Although the Complaint does not indicate that Plaintiffs intended to bring this action on behalf of their daughters, or state any facts regarding whether their daughters are minors, the Court surmises that it is possible that Plaintiffs intend to represent their daughters in this action. However, if Plaintiffs’ daughters are no longer minors, they need to intervene or be joined in this action, because Plaintiffs must assert a personal injury to maintain standing to pursue these claims. Thus, the Court grants Plaintiffs thirty days to either amend the Complaint to explicitly state that they are pursuing this action on behalf of their minor children, or to allow their daughters to intervene in or join this action. If neither action occurs within thirty days, the Court will dismiss this case for lack of jurisdiction.”
Arthur H. Cobb and George L. Saly v. United States Department Of Education Office for Civil Rights, et al.; D. MN; Civil File No. 05-2439 (MJD/AJB); 2006 U.S. Dist. LEXIS 39985; 6/14/06
Attorneys of Record: (for plaintiffs) Both Pro se. (for defendants) For United States Department of Education Office for Civil Rights, Margaret Spellings, in her capacity as Secretary of the United States Department of Education, Algis Tamosiunas, in his capacity as Office for Civil Rights Director Compliance Program, Judith E. Levitt, in her capacity as Office for Civil Rights Senior Civil Rights Counsel, Linda A. McGovern, in her capacity as Office for Civil Rights Director, Chicago Office, Midwestern Division, Defendants: Mary J Madigan, US Attorney – Mpls, MN.
