A federal judge from the District of Arizona has granted a defendant school district’s motion for a summary judgment in a case involving a plaintiff student athlete, who alleged that she was retaliated against in violation of Title IX when she told school officials that a male assistant coach had made sexual advances toward her.
Central to the court’s ruling was its determination that the school had sufficiently punished the assistant coach and the plaintiff’s perceived punishment, being relegated to the junior varsity and ostracized by some of her teammates, could not be sufficiently deemed retaliation.
Plaintiff Madison Power was a sophomore at Mesquite High School, where she played on the girls’ varsity basketball team during the 2005-2006 season. At that time, defendant Candice Gonzales was the head coach of the basketball team, and her husband, defendant Josh Gonzales, was the assistant coach. Over the winter break of that school year, Madison and five other players rode home from a basketball tournament in a vehicle driven by Mr. Gonzales. During the car ride home, Mr. Gonzales made some comments of a sexual nature.
Mr. Gonzales’s comments made Madison uncomfortable, so she discussed them with her parents. Eventually, after receiving advice from Mary Lou Padilla, a teacher at Mesquite High School, Madison reported Mr. Gonazales’s comments to the Mesquite administration. Ms. Padilla also reported the comments to Mr. O’Neill, the athletic director at the time. Based on Madison’s report, the Gilbert School District ultimately decided not to renew Mr. Gonzales’s coaching contract for the 2006-2007 school year.
The plaintiff claimed that the day after she made her report, Ms. Gonzales called the other varsity players and told them that Josh would “never say anything like that.” Ms. Gonzales allegedly asked at least one player, Brittany Foster, to report back to her regarding the actions of the Powers family. The plaintiff further claims that after Mr. Gonzales was fired, Ms. Gonzales kept her out of basketball activities during the summer of 2006. Ms. Gonzales told a parent that Madison should not have the nerve “to show up in her gym again.” Madison did not receive an informational flyer about the 2006 summer programs. However, Ms. Gonzales did not send a flyer out anyway.
After the other varsity players found out about Madison’s reporting of Mr. Gonzales’s behavior, some of the girls allegedly began threatening Madison. One varsity player wrote on her MySpace page that Madison was a “bitch.” On the bus, varsity players would stick their feet up to prevent Madison from walking down the aisle and would occasionally try to trip her. Once, as Madison walked down the hallways of the high school, when another varsity player, pointed at Madison and said, “stupid bitch.” On another occasion, several members of the varsity team walked behind Madison and stepped on her flip-flops, almost causing Madison to trip.
For the first time ever, Mesquite conducted closed girls’ basketball tryouts for the 2006-2007 season. Gonzales recused herself from the selection process for the 2006-2007 teams, leaving it to the other girls’ basketball coaches. The coaches determined that the plaintiff should play for the junior varsity team.
The plaintiff sued on December 19, 2007, alleging the defendants and the school district violated Title IX as well as 42 U.S.C. § 1983, or her constitutional right to equal protection, free speech, substantive due process, and procedural due process.
After the court granted the defendants’ motion to dismiss, the plaintiff moved to reconsider based on the Supreme Court’s decision in Fitzgerald v. Barnstable School Committee, 129 S.Ct. 788, 172 L. Ed. 2d 582 (2009), leading to the instant opinion.
On appeal, the plaintiff argued only for her retaliation claims under Title IX and the Equal Protection Clause.
In siding with the school district on the Title IX claim, the court found that the school district did not demonstrate “deliberate indifference toward discrimination by a school official or teacher or student-on-student discrimination/harassment. See e.g., Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 646-47, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287-88, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998).” Rather, it addressed the situation by not renewing Mr. Gonzales’s contract and by issuing his spouse/the head coach “a letter of reprimand for lack of judgment and unprofessional behavior” as well as preventing her from selecting the team for the following year.
Turning specifically to the scenario where the harasser is a fellow student, the court wrote that “it may be harder for the plaintiff to prove a school district’s liability under Title IX than when the harasser is a teacher or other school official because of control issues.”
Further, it wrote that “to be actionable, the conduct must be so ‘severe, pervasive, and objectively offensive,’ that it effectively deprives the victim of access to the educational opportunities or benefits provided by the school.”
The judge “sympathize[d] with Madison and understands why she would find her fellow students’ behavior toward her upsetting. Teenagers certainly can be very cruel. However, the Court does not find that the students’ behavior was so ‘severe, pervasive, and objectively offensive,’ that it effectively deprived Madison access to her school’s educational opportunities or benefits.
“But even if the students’ behavior rose to the level of actionable harassment or retaliation, the Court finds as a matter of law that the District’s response to the alleged retaliation was not clearly unreasonable given the circumstances.”
Madison Power, a minor, by and through Kelly and Lisa Power, her parents and guardians v. Gilbert Public Schools, et al.; D. Arizona; No. CV 07-2584-PHX-JAT; 2009 U.S. Dist. LEXIS 119322; 12/21/09
Attorneys of record: (for plaintiff) Joel B Robbins, LEAD ATTORNEY, Anne E Findling, Robbins & Curtin PLLC, Phoenix, AZ. (for defendants) David Kapena Pauole, Holm Wright Hyde & Hays PLC, Phoenix, AZ.
