By Jared Good
In a recent decision from the District Court of New Mexico, the federal judge grappled with how to apply the standards of Title IX’s prohibition on sex-based discrimination in education. At issue, was an “unwritten rule” that the Pecos Independent School District (hereinafter “PISD”) had regarding bus seating arrangements during transport to athletic events. In a method detailed by school administrators to assure “proper supervision,” students that were in romantic relationships were precluded from being seated next to one-another. The superintendent of PISD, Defendant Fred Trujillo, detailed in a letter in response to the Plaintiff, that the policy applied to students participating in any school-sanctioned sport, regardless of sex – meaning relationships of male/female, male/male, or female/female.
The controversy centered around a student at PISD, De Anza Dimas, who during the 2018-19 academic year was a senior and member of the varsity girls’ basketball team. Dimas, an openly LGBT student, was sitting next to her then same-sex girlfriend, T.H., as the basketball team was preparing to depart for a tournament in Pojoaque, New Mexico. On the bus was the school athletic director, Defendant Michael Flores, who was aware of the relationship between the Plaintiff and T.H., requested that the two exit the bus and follow him into the school gym. Once inside the gym lobby, Flores began to question the two students and recorded the ensuing conversation. The students admitted that they were in a relationship, to which Flores explained that given the circumstances and the unwritten rule that existed that “we would have to [do this] with anybody else, so you guys cannot sit together on the bus.”
Flores explained that the teens were not in trouble, but that they were subject to the same policies as everyone else. After the conversation ended, the students and Flores returned to the bus and the team traveled to the tournament.
Dimas submitted a “To Whom it May Concern” letter to PISD, alleging discrimination against her and T.H. in being accosted for sitting next to each other, but “boys and girls from different teams can walk around and hold hands and nothing is said about it.” Trujillo responded to the letter by Dimas by referencing the unofficial policy the school has, as referenced above. Dimas completed the basketball season in March 2019, and then participated on the varsity softball team, before graduating that May.
Dimas alleged several claims in her complaint, with the majority being dismissed through summary judgment motions made by the Defendants. The Court was asked to decide two claims: Count 1 – Violation of Title IX; Count 4 – Fourteenth Amendment Substantive Due Process.
Dimas alleged that PISD violated Title IX through usage of their bus seating policy. As it is widely known, Title IX prohibits discrimination in public education based on sex. The famous phrase: “[n]o person in the United States 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). Courts evaluating Title IX discrimination claims that relies upon indirect proof of discrimination employ a three-part burden-shifting test that was established by the Supreme Court in McDonnell Douglas Corp v. Green.
The first step in the McDonnell Douglas test requires that the Plaintiff establish a prima facie case for discrimination by showing that the school took adverse action against the Plaintiff based on the Plaintiff’s sex. Bird v. W. Valley City, 832 F.3d 1188, 1200 (10th Cir. 2016) (sex discrimination claim); Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1225 (10th Cir. 2008) (retaliation claim). Once this has been established, the burden shifts to the Defendant to “articulate a legitimate, nondiscriminatory [or nonretaliatory] reason for the adverse action.” Bird at 1200. If the Defendant satisfies their burden, it again shifts to the Plaintiff to prove that there is a genuine issue of material fact as to whether the proffered reason was pretextual, otherwise summary judgment is warranted. Id. In the states covered under the 10th Circuit (of which New Mexico is part of), for a Plaintiff to prove that a reason was pretextual, they:
must produce evidence of weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [school’s] proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the [school] did not act for the asserted nondiscriminatory reasons.
Doe v. Univ. of Denver, 1 F.4th 822, 829 (10th Cir. 2021). The Court must ask, “Could a reasonable jury – presented with the facts alleged – find that [sexual orientation] was a motivating factor in the school’s disciplinary decision?” Id. “A Plaintiff may use, but is not limited to, the ‘erroneous outcome’ and ‘selective enforcement’ frameworks to establish that sex was a motivating factor in the school’s decision.” Id.
The “erroneous outcome” test requires that a Plaintiff set forth: (1) facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding and (2) a particularized causal connection between the flawed outcome and [sexual orientation] bias. Id. at 830. The “selective enforcement” test requires that the Plaintiff show that a similarly-situated member of the opposite [sexual orientation] was treated more favorably than the Plaintiff due to his or her [sexual orientation]. Id.
The Court held that Dimas had not established a sufficient claim to succeed under either test. Nothing in her claim illustrated that she was specifically targeted for her sexual orientation, as the policy at issue had been applied to all students, regardless of their sex and sexual orientation. There was no produced evidence that sustained a claim that LGBTQ+ students faced a disparate enforcement of this policy than their heterosexual peers, or faced enhanced consequences for a violation.
As the Court ruled that there was nothing in the record that was sufficient to prove a Title IX claim for discrimination in the bus seating policy, the Court likewise held that there was nothing to show that a pervasive culture of gender-based harassment existed.
Dimas’ second claim was for a Fourteenth Amendment violation of her right to privacy. The Court quickly disposed of her claim, as they found that Dimas had not offered a substantive argument alleging any violation. The bus seating policy did not infringe on Plaintiff’s right to privacy because the Defendants did not disclose information about the Plaintiff’s sexual orientation or gender identity, nor did they inquire into those topics.
When examining whether there was a legitimate expectation of privacy in one’s sexual orientation, the Court stated that they were unsure of whether the Plaintiff had a legitimate expectation of confidentiality to her sexual orientation, but also acknowledged that the Tenth Circuit had not directly examined such a claim.
Given the lack of clear circuit guidance, the Court assumed that where the Plaintiff did in-fact have a legitimate expectation of privacy in her sexual orientation, that the conduct by the Defendants did not violate her right to privacy in the enforcement of the bus seating policy. Nor did the Court believe that there was an invasive inquiring into the Plaintiff’s sexual orientation or gender identity. As the Plaintiff failed to satisfy the burden that the inquiry by the Defendants violated some constitutional right, the Court decided not to address whether Plaintiff’s argument on whether there is a right to be free from “unreasonable, unwarranted, and invasive inquiry into the sexual orientation or gender identities.”
The Court continued their analysis in finding that Dimas failed to meet her burdens to prove any substantive issue in the case, granting qualified immunity to Flores and Trujillo in their roles. Nor did she prove that there was any right that existed for privacy purposes that forbids school officials from discussing a student’s sexual orientation or gender identity, nor a prohibition on school officials discussing a student’s relationship status regarding a bus seating enforcement policy.
The Court concluded by rejecting § 1983 claims against Trujillo and a Monell claim against PISD Board of Education by stating that there were not any violations of Dimas’ constitutional rights that would warrant relief.
Although Dimas may have suffered some form of humiliation during the bus incident, unfortunately, none of her allegations could sustain a conclusion that her constitutional rights had been violated. Title IX requires a strict showing that there was a discriminatory purpose in the way that the existing policy had been applied based on sexual orientation. None of the allegations were sustained by evidence – either direct, indirect, or even anecdotal – that could warrant any type of finding that discrimination was the purpose behind the enforcement. As LGBTQ+ visibility increases, expect there to be more lawsuits like this and clearer guidance on how schools can balance supervision and enforcement against the rights of students to live without threat of discriminatory enforcement.
