High school sports in major college towns are often overshadowed by name-brand teams such as the Penn State Nittany Lions of State College, Pennsylvania. But an unusual move by the State College Area School District may have vaulted interscholastic sports into the spotlight, at least in the Pennsylvania courts.
The district created a co-ed club hockey team that would seem to comply with Title IX requirements. But when a middle-school girls hockey team disbanded, none of the 19 girls who tried out for the co-ed team made the cut, raising suspicions about the co-ed nature of an all-male team. In response, the girls’ parents offered to organize and manage a girls team, but the district and the boosters for the club team allegedly refused to cooperate.
The parents of three disappointed female skaters filed a complaint against the district on August 23, 2022, alleging violations of Title IX and the Equal Protection Clause, and negligent hiring, training, supervision, and retention of the Title IX coordinator and the head coach. The case, Brooks v. State College Area School District, 4:22-cv-01335 (M.D. Pa. 2022), was assigned to District Judge Matthew W. Brann, who decided the plaintiffs’ application for a preliminary injunction in December of 2022.
The Parents File a Title IX Grievance
When the local rink discontinued the girls’ ice hockey team in early 2022, the plaintiffs notified the District Ice Hockey Club (“IHC”), a parent-run booster club organized to work with the district to facilitate the district’s ice hockey clubs at various levels (middle school, junior varsity, varsity). On May 17, 2022, the plaintiffs informed the district (via IHC) that they had sufficient students, coaches, and ice time to form a second club team. The district rejected the request. When the plaintiffs expressed their concerns about discrimination against female hockey players, the superintendent allegedly said the issue was in the hands of the IHC.
The plaintiffs filed a Title IX grievance with Linda Pierce, the District’s Title IX coordinator. While the matter was pending, the district added a high school junior varsity team to accommodate boys who did not make the high school varsity team.
The Title IX investigation concluded that the district failed to meet two of the three prongs of the applicable Title IX analysis set forth in Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995). The district did not meet substantial proportionality and did not have a history of expanding sports participation opportunities for girls; however, the investigation concluded that the district fully and effectively accommodated the athletic interest of girls enrolled in the school.
Did the District Violate Title IX?
The court considered the third requirement of Cohen concerning accommodation of student-athlete interests, and the Office of Civil Rights (OCR) standards or questions for determining whether an institution has met the interest of female student-athletes. The OCR first asks if there exists an unmet interest in a sport. The district argued that the female athletes’ interests were met when they were allowed to try out for the ice hockey team. The plaintiffs claimed that since none of the girls who tried out for the middle-school co-ed hockey team made the roster, they were never afforded a genuine opportunity.
Judge Brann opined: “Merely allowing female athletes to show up for co-ed tryouts is not enough to satisfy Title IX.” He added that the plaintiffs correctly noted that the Third Circuit has held that “athletic opportunities means real opportunities, not illusory ones.” In addition, there was no evidence that the district tried to accommodate the girls by allowing them to practice with the team, or fill “alternate” spots, or conduct workshops to improve their skills.
The second OCR question is whether there is “sufficient ability to sustain a team in the sport.” The court stated that the district cannot simultaneously state that it supports creating a second co-ed middle school team to accommodate female students, while taking no action when female students ask it to create a team. Creating a second team for junior varsity boys was strong evidence that the district was capable of creating additional teams.
The third OCR question asks, “Is there a reasonable expectation of competition for the team?” The court found no evidence that a second co-ed middle school ice hockey team would be unable to compete in the existing club hockey league in which the current middle school ice hockey team competes.
In considering a request for a preliminary injunction, the Third Circuit has established four factors: (1) reasonable probability of success on the merits; (2) likelihood of irreparable harm if the relief is denied; (3) whether granting the relief will result in even greater harm to the nonmoving party; and (4) whether granting the relief is in the public interest.
Having found that the district was in violation of Title IX and the plaintiffs would likely succeed on the merits, the court proceeded to decide the next three requirements for preliminary relief. Judge Brann opined that the plaintiffs would suffer irreparable harm without an injunction because every missed opportunity to play hockey would cause them to fall behind in their athletic development and prevent them from competing at higher levels, including college.
In balancing the equities, the court stated that the district presented no evidence of harm from injunctive relief that would outweigh the harm to the plaintiffs. Finally, Judge Brann found that an injunction promoting compliance with Title IX would serve the public interest, and protecting civil rights is “a purpose that is always in the public interest.”
The Court Grants Relief
On December 1, 2022, the court issued a preliminary injunction in favor of the plaintiffs who simply wanted to play middle-school ice hockey in an organized league. Judge Brann quoted National Hockey League great Wayne Gretzky, who famously said, “You miss 100% of the shots you don’t take.” Gretzky’s observation assumes that everyone has the chance to play the sport, which was not the case in State College.
The court expressed regret that the matter required judicial intervention and encouraged the parties to work towards an amicable resolution. Judge Brann showed restraint in his opinion, in view of what was obviously a sham try-out in a transparent attempt to do an end run around Title IX. With the nationally ranked Penn State women’s hockey team playing in the same area, one would think the district would try to develop homegrown talent for the Nittany Lions’ roster, which consists of 21 student-athletes from outside Pennsylvania. Yet, more than 14 months post-injunction, the litigation continues.
[This article originally appeared in the Sports Litigation Alert newsletter, where Mr. Chester serves as Senior Writer. It is reproduced with permission.]