The opinion of the court was delivered by: EDWARD BOBRICK, Magistrate Judge
Before the court is the motion of plaintiff Danielle Howell for
leave to file an Amended Complaint pursuant to Fed.R.Civ.P. 15.
Plaintiff attended North Central College from September of
1998, until June of 2003, and played on the women's basketball
team for a little more than two seasons. During that time, she
claims to have been targeted for harassment because she is a
heterosexual. On October 4, 2002, plaintiff filed a four-count
complaint, charging the college and the other defendants with
sexual harassment in violation of Title IX of the Educational
Amendments of 1972, 20 U.S.C. § 1681 et seq., violation of her
due process rights under 42 U.S.C. § 1983, and intentional and
negligent infliction of emotional distress. Since that time, the
court has dismissed plaintiff's Title IX claims against the
individual defendants, her § 1983 claims against all defendants,
and all her claims against defendant Richard Norenberg. Now, plaintiff seeks to file an amended complaint which would add a
claim of retaliation in violation of Title IX, and a claim for
breach of contract.*fn1
I. PLAINTIFF'S ALLEGATIONS
The core of plaintiff's allegations have not changed from her
original complaint to her amended complaint. Plaintiff
matriculated at North Central College in Naperville, Illinois, in
the fall of 1998. According to plaintiff, she was a productive
member of the women's basketball team during her sophomore and
junior seasons. At that time, the head coach was Linda Olson, and
Karen Seremet was, apparently, an assistant coach. (Complaint at
Law, ¶¶ 12-13; Amended Complaint at Law, ¶¶ 12-13). Plaintiff
alleges that Olson began to exclude her from certain team
activities at the beginning of her junior season in 2000.
(Complaint at Law, ¶ 18; Amended Complaint at Law, ¶ 18).
During a team luncheon on November 17, 2000, plaintiff voiced
her opposition to homosexuality. According to plaintiff, both
Olson and Seremet told her not to express her opinion on the
subject. (Complaint at Law, ¶ 20; Amended Complaint at Law, ¶
20). Plaintiff alleges that, shortly thereafter, she overheard
Seremet and another player speculating as to plaintiff's sexual
preferences. (Complaint at Law, ¶ 21; Amended Complaint at
Law, ¶ 21). She also alleges that Seremet repeatedly talked to
plaintiff about lesbian activity in an effort to "indoctrinate"
her. (Complaint at Law, ¶ 21; Amended Complaint at Law, ¶
21). Plaintiff claims that, because she resisted "lesbian
doctrinarian," Olson decreased her playing time in favor of an
inferior player. (Complaint at Law, ¶ 22; Amended Complaint at
Law, ¶ 22). Olson also told plaintiff she was no longer allowed
to wear ribbons in her hair because it was "too feminine."
(Complaint at Law, ¶ 23; Amended Complaint at Law, ¶ 23).
Plaintiff claims that, as a result of indoctrination efforts,
dress code requirements, and unbalanced personal criticism, she
was forced to leave the team. (Complaint at Law, ¶ 25; Amended
Complaint at Law, ¶ 25). According to plaintiff, Olson was seen
laughing and celebrating when plaintiff quit. (Complaint at
Law, ¶ 26; Amended Complaint at Law, ¶ 26).
According to both the original and amended complaint, in
December of 2000, plaintiff attempted to speak to the athletic
director, Walter Johnson, about her treatment in person and left
a phone message which he never returned. (Complaint at Law, ¶
27; Amended Complaint at Law, ¶ 27). Plaintiff's parents wrote
him a letter about the situation on May 4, 2001, with copies
going to the president of the college and the board of trustees.
(Complaint at Law, ¶ 27; Amended Complaint at Law, ¶ 27).
Shortly thereafter, the college asked for Coach Olson's
resignation and, when she refused, terminated her. (Complaint at
Law, ¶ 28; Amended Complaint at Law, ¶ 28). The athletic
director then promoted Karen Seremet to fill the vacancy.
(Complaint at Law, ¶ 29; Amended Complaint at Law, ¶ 29).
According to plaintiff, in September of 2001, she attempted to
resume contact with the team by playing basketball in an "open gym," but was
prevented from doing so by Seremet. (Complaint at Law, ¶ 30;
Amended Complaint at Law, ¶ 30). During the last week of
October in 2001, plaintiff asked to meet with Seremet.
(Complaint at Law, ¶ 31; Amended Complaint at Law, ¶ 31). At
that meeting, plaintiff alleges that Seremet told her that
because she had not performed the off-season recruiting and
fund-raising that the athletic director had told her and her
mother was required, she would not be allowed to rejoin the team.
(Complaint at Law, ¶ 31; Amended Complaint at Law, ¶ 31).
Plaintiff claims that neither she nor her mother had been
informed of such requirements. (Complaint at Law, ¶ 31;
Amended Complaint at Law, ¶ 31).
Plaintiff seeks to add two counts to her original complaint. In
the retaliation count she now seeks to add to her complaint, she
contends that defendants refusal to allow her to rejoin the team
was in retaliation for her complaints about sexual discrimination
and harassment. (Amended Complaint at Law, Count II). She also
contends that the defendants' conduct amounted to a breach of
contract, which was set forth in the college's catalogs,
handbooks, and policy statements, and which prohibited
discrimination on the basis of sexual orientation. (Amended
Complaint at Law, Count III).
While Federal Rule of Civil Procedure 15(a) instructs the
courts to give leave to amend a complaint freely "when justice so
requires," it does not mandate that leave be granted in every
case. Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir.
2002). In particular, a district court may deny a plaintiff leave to amend
her complaint if there is undue delay, bad faith, dilatory
motive, or if the amendment is futile, or will result in undue
prejudice to the opposing party. Id. In this case, review of
plaintiff's proposed amendments demonstrates that they would be
futile and her Rule 15(a) motion must be denied.
A. Harassment "On the Basis of Sex" and Retaliation under Title
In her original complaint, filed over a year and a half ago,
plaintiff claimed that defendants subjected her to a course of
sexual harassment in violation of Title IX. Now, she seeks to add
the additional claim that defendants retaliated against her when
she complained about this treatment, also in violation of Title
IX. That statute provides that "[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 educational program or activity receiving Federal
financial assistance." 20 U.S.C. § 1681(a) (emphasis added). In
Franklin v. Gwinnett County Public Schools, 503 U.S. 60,
112 S.Ct. 1028 (1992), the Supreme Court determined that Title IX's
prohibition against discrimination was implicated in cases
involving sexual harassment. 503 U.S. at 75, 112 S.Ct. at 1037.
In so doing, the Court relied on a Title VII case, Meritor
Savings Bank, FSB v. Vinson. Franklin, 503 U.S. at 75, 112 S.Ct.
at 1037 (citing Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57
, 106 S.Ct. 2399 (1986)). Since then, federal courts have
looked to Title VII precedent to inform their analyses of sexual
discrimination claims under Title IX. See Frazier v. Fairhaven
School Committee, 276 F.3d 52
, 66 (1st Cir. 2002) (same-sex
harassment); Doe v. University of Illinois, 138 F.3d 653
, 665 (7th Cir. 1998), vacated,
526 U.S. 1142, 119 S.Ct. 2016
(1999) (hostile environment); Murray
v. New York Univ. College of Dentistry, 57 F.3d 243, 248-249
(2nd Cir. 1995) (sexual harassment by teacher); Preston v.
Commonwealth of Virginia ex rel. New River Community College,
31 F.3d 203
, 206 (4th Cir. 1994) (employment discrimination).
Accordingly, Title VII precedent informs our analysis of whether
the protections of Title IX extend to plaintiff's proposed
Title VII, and presumably Title IX, protect persons from not
only discrimination on the basis of sex, but also from
retaliation for complaining about the types of discrimination
they prohibit.*fn2 Hamm, 332 F.3d at 1066; Hamner, 224
F.3d at 704. To advance such a claim, "it is sufficient if the
plaintiff has a sincere and reasonable belief that [s]he is
opposing an unlawful employment practice." Hamner, 224 F.3d at
706-07. Thus, even if the discrimination or harassment at issue
does not reach a degree sufficiently severe to implicate that
statutes' protections, a retaliation claim may, nevertheless, be
valid. 224 F.3d at 707. But, as the court has made clear, "the
complaint must involve discrimination that is prohibited by [the
statute]." Id. As the Seventh Circuit has explained, "[i]f a
plaintiff opposed conduct that was not proscribed by Title VII,
no matter how frequent or severe, then [her] sincere belief that
[she] opposed an unlawful practice cannot be reasonable." Id.
In this case, plaintiff alleges that she suffered same-sex
discrimination and harassment as a result of being a heterosexual. When she opposed this conduct,
according to her amended complaint, the defendants retaliated
against her. The issue, then, is whether Title IX prohibits the
type of discrimination of which she complains.*fn3
Resolution of this question requires an examination of not only
plaintiff's proposed retaliation claim, but her original same-sex
harassment claim as well.
Federal courts struggled with the issue of same-sex harassment
in a Title VII context until the Supreme Court's decision in
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
118 S.Ct. 998 (1998). There, the Court stated that it saw no
justification in statutory language or Supreme Court precedent
for a categorical rule excluding same-sex harassment claims from
the coverage of Title VII. 523 U.S. at 79, 118 S.Ct. at 1002. The
Court cautioned, however, that the sexual harassment must meet
the statutory requirement that it constitute discrimination
because of sex. 523 U.S. at 81, 118 S.Ct. at 1002. Illustrating
this requirement, the Court offered examples of what form such
sexual harassment might take: Courts and juries have found the inference of
discrimination easy to draw in most male-female
sexual harassment situations, because the challenged
conduct typically involves explicit or implicit
proposals of sexual activity; it is reasonable to
assume those proposals would not have been made to
someone of the same sex. The same chain of inference
would be available to a plaintiff alleging same-sex
harassment, if there were credible evidence that the
harasser was homosexual. But harassing conduct need
not be motivated by sexual desire to support an
inference of discrimination on the basis of sex. A
trier of fact might reasonably find such
discrimination, for example, if a female victim is