Education Law

Elborough sued the school district under Title IX and the Equal Protection Clause, but a federal court judge in Wisconsin recently dismissed her Title IX claim. Though it appeared likely that the coach allowed Elborough to play without pads because she was a girl, the court reasoned that the district could not be liable for this decision because officials did not have notice that Elborough could get hurt at practice as a result of sex discrimination. As for the other examples of discrimination, including the locked doors, the snacks, and the haircut remark, the judge cited the maxim that "the law does not concern itself with trifles" before deeming them too insignificant to render the school district liable.

The court did not throw out Elborough's Equal Protection claim, so she still will be able to press her case against the school district. But the judge's decision on the Title IX claim is wrong, wrong, wrong, and needs to be reversed on appeal so that it does not create bad precedent in future cases. The problem is that the judge considered this case under sexual harassment standards, rather than as a case about direct, intentional discrimination. Her concern with notice and materiality of harm derives from cases like Davis, where the Supreme Court held that a school district could be liable when students harass and bully each other. The court did not wish to create a floodgate of litigation for every little jaunt and jab between students, so it set forth the requirements for notice, deliberate indifference, and harm to the plaintiff in the form of impairment to her education. Elborough's case is about participation, not sexual harassment. A coach can't erect obstacles to a player's participation, such as throwing her into a practice drill without pads in the apparent hopes that she'll get roughed up and quit, simply because he doesn't like her gender. "Notice" does not come in to play because the school official in a position to prevent this discrimination is the coach himself, who certainly has notice of his own conduct! The court that decided Mercer v. Duke University, for example, did not ask whether the university had notice of the discriminatory treatment the head football coach was dishing out to his female kicker before ruling that such intentional discrimination was unlawful under Title IX.

Moreover, the locker room issue and even the snacks amount to more than just a "trifle" -- they are both physical and symbolic lack of access to the football program, intended to make Elborough feel different and inferior because of her sex. What's more, Title IX regulations say that equity is measured in part by whether girls have similar access to the benefits of participation, including such benefits as access to facilities, including locker rooms, and meals. These regulatory interpretation underscores that that access to participation is about more than just what goes on on the field.

I hope that the plaintiff appeals this decision. Unfortunately, this judge is not the first one to conflate the notice requirement from harassment cases into athletics participation cases. We clearly need an appellate court decision on this issue to address this confusion.

Decision is: Elborough v. Evansville 2009 WL 1773135 (W.D. Wis. June 23, 2009).

Full post as published by Title IX Blog on June 29, 2009 (boomark / email).