Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:09-cv-885-WTL-WGH-William T. Lawrence, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges.
A packed gymnasium, cheerleaders rallying the fans, the crowd on their feet supporting their team, and the pep band playing the school song: these are all things you might expect to see at an Indiana high school basketball game on a Friday night. The crowd becomes part of the game; they provide motiva- tion, support, and encouragement to the players. After all, what would a spectator sport be without the spectators? Unfortunately, this is a question the Franklin County High School girls' basketball teams must answer every season because half their games have been relegated to non-primetime nights (generally Monday through Thursday) to give preference to the boys' Friday and Saturday night games. Non-primetime games result in a loss of audience, conflict with homework, and foster feelings of inferiority. The question we're asked to decide in this appeal is whether such discriminatory scheduling practices are actionable under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). We think the plaintiffs have presented a genuine question of fact that such practices violate the statute, and therefore we vacate the district court's entry of summary judgment in favor of the defendants on this claim. We further vacate the district court's dismissal of the plaintiffs' equal protection claim, brought pursuant to 42 U.S.C. § 1983, on the basis of sovereign immunity. The defendants are "persons" within the meaning of § 1983, and thus, subject to suit under that statute.
Amber Parker brought this suit on behalf of her minor daughter J.L.P. against fourteen Indiana public school corporations. Parker served as head coach of the girls' varsity basketball team at Franklin County High School, part of Defendant Franklin County Community School Corp., from 2007 to 2009. J.L.P. was a member of that team during the 2008-2009 season. After the Parker family moved out of state, Tammy Hurley filed an identical suit on behalf of her minor daughter C.H., who was a current member of the Franklin's girls' varsity basketball team. Hurley was eventually added as a plaintiff in the present lawsuit; Parker remains a plaintiff as well. The defendants in this suit include Franklin and conference and non-conference school districts that agreed by contract to play the Franklin girls' basketball team during the 2009-2010 season.
The girls' basketball season starts two weeks before the boys' and during this time, the girls' games are scheduled for primetime nights. Primetime is defined as evenings that precede days without school. The record reveals that at those weekend games, there "are large crowds in attendance . . ., substantial student and community support in the stands, and the presence of the band, cheerleaders, and dance teams." When the boys' basketball season starts two weeks later, the girls are relegated to playing most of their games on week nights. At those games, the atmosphere is dramatically different. The girls lose the larger Friday night audience, pep band, cheerleaders, and dance team. The bleachers are nearly deserted; there is a lack of student and community support. The girls struggle to complete their homework and study for tests, and the scheduling policy affected J.L.P.'s grades during the season. J.L.P. also attested that the defendants' practice of placing girls' games disproportionately in non-primetime slots made her feel like girls' accomplishments are less important than boys'.
The plaintiffs named fourteen school defendants in this action: six comprise the schools within the Eastern Indiana Athletic Conference (EIAC) (Franklin County Community School, Batesville Community School, Sunman-Dearborn Community School (East Central), Greensburg Community Schools, Lawrenceburg School Community, and South Dearborn Community School); the others are not members of that conference (Decatur County Community Schools, Switzerland County School, Fayette County School, Richmond Community Schools, Jennings County School, Rush County Schools, Union County School/College Corner Joint School District, and Muncie Community Schools). The EIAC makes decisions by majority rule and voted to enter into two- to four-year contracts for the scheduling of games. Franklin plays each of the conference schools twice a season, once at home and once away. Franklin plays the non-conference schools once a season and they alternate annually between home and away.
During the 2009-2010 basketball season, nearly 95 percent of the Franklin boys' varsity basketball games, but less than 53 percent of the Franklin girls' games, were played in primetime. During the 2007-2009 seasons, the disparity was 95 percent to 47 percent, respectively. In April 2007, Parker asked Franklin Athletic Director Beth Foster to allow the girls' basketball team to play games in primetime on an equal basis with the boys' team. Foster responded that the dates, times, and locations of the basketball games were all governed by contracts for either a two- or four-year period, and once defendants' athletic directors agreed to a schedule and signed a con- tract, the schools generally would maintain those same game days and times in subsequent years.
Foster testified that she has attempted to increase the number of girls' basketball games played in the primetime spots, but athletic directors in the EIAC have refused. Foster was met with resistence from the other school athletic directors in the EIAC when she attempted to address gender equity. She even tried to get double headers on Friday nights, but three of the athletic directors wouldn't agree. Foster testified that she is trying hard to make it more equal. She said that she "can't get there because [she] can't get anybody to come play us on those nights," and she can't dictate what night the games will be played.
The defendants moved for summary judgment on both Parker's section 1983 equal protection claim and Title IX claim, and Parker filed a cross-motion for sum-mary judgment. Before the district court ruled on the parties' motions for summary judgment, Hurley, on behalf of her minor daughter C.H., was added as a plaintiff and joined in all claims. The district court granted the defendants' motion for summary judgment on the plaintiffs' 1983 claims on the basis that the defendants were arms of the state and thus, entitled to sovereign immunity under the Eleventh Amendment. The court subsequently granted the defendants' motion for sum-mary judgment on the plaintiffs' Title IX claims upon finding as a matter of law that the defendants' treatment of the plaintiffs did not result in a disparity so substantial that it denied the plaintiffs equality of athletic opportunity.
We review the district court's grant of summary judgment de novo, construing all facts and reasonable inferences in the light most favorable to the non-moving party. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010). Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Cross-motions for summary judgment do not waive the right to a trial; rather, we treat the motions separately in determining whether judgment should be entered in accordance with Rule 56. McKinney v. Cadleway Props., Inc., 548 F.3d 496, 504 n.4 (7th Cir. 2008).
Before diving into the merits, we first address defendants' argument that Parker's claims are moot because her daughter is no longer a student at Franklin. Parker's injunctive claims are moot; however, her claims for compensatory damages remain alive. See, e.g., Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009) (federal prisoner claim for injunctive relief rendered moot when he transferred prisons but his claim for damages for past infringements of his constitutional rights remained); see also Pederson v. La. State Univ., 213 F.3d 858, 875 (5th Cir. 2000) (Title IX claim not rendered moot by student's graduation where she asserted claims for monetary damages).
Since the enactment of Title IX, there has been a huge increase in the number of females participating in high school athletic programs. Before its enactment, less than 300,000 girls participated in high school athletic programs (approximately one in twenty-seven), compared to 3.6 million boys. See National Federation of State High School Associations, Participation Survey Results for 1971-1972, http://www.nfhs.org/content.aspx?id=3282 (last visited Jan. 26, 2012). Girls' participation has increased dramatically since 1971 and is increasing faster than boys'; in 2009-2010, 3.2 million girls participated in sports (more than a 50,000 increase from the previous year), and 4.5 million boys participated (less than a 35,000 increase from the previous year). Id. The impact of Title IX on student athletes is significant and extends long beyond high school and college; in fact, numerous studies have shown that the benefits of participating in team sports can have life-long positive effects on women. See Dionne L. Koller, Not Just One of the Boys: A Post-Feminist Critique of Title IX's Vision for Gender Equity in Sports, 43 Conn. L. Rev. 401, 413 (2010) ("[S]tudies have shown that sports participation provides important lifetime benefits to participants" such as "discipline, teamwork, time management, and leadership that further long-term personal growth, independence and well-being" and "better physical and mental health, higher self-esteem, a lower rate of depression, and positive body image, as well as the development of responsible social behaviors, greater educational success, and inter-personal skills") (quotations omitted). Conversely, discriminating against female athletes and creating feelings of inferiority with their male counterparts can have long-lasting negative effects. See Cmtys. for Equity v. Mich. High Sch. Athletic Ass'n, 178 F. Supp. 2d 805, 837-38 (W.D. Mich. 2001), aff'd, 377 F.3d 504 (6th Cir. 2004), judgment vacated on other grounds, 544 U.S. 1012 (2005), aff'd on remand, 459 F.3d 676, 695 (6th Cir. 2006).
Title IX has gone a long way in changing society's view of female athletes by providing females with the opportunity to showcase their athletic ability and competitiveness and encouraging female participation and interest in sports. The progress in women's athletics has sparked a "realization by many that women's sports [can] be just as exciting, competitive, and lucrative as men's sports." Neal v. Bd. of Trs. of Cal. State Univs., 198 F.3d 763, 773 (9th Cir. 1999). "Title IX has enhanced, and will continue to enhance, women's opportunities to enjoy the thrill of victory, the agony of defeat, and the many tangible benefits that flow from just being given a chance to participate in . . . athletics." Id.
Although Title IX has gone a long way in increasing the status and respect for female athletes, discrimination endures. Title IX has not ended the long history of discrimination against females in sport programs; many educational institutions continue to place male sport programs in a position of superiority. See McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 296 (2d Cir. 2004) ("Despite substantial progress in attitudes about women and sports, the competitive accomplishments of male athletes may continue to be valued more than the achievements of female athletes.").This is likely due in part because a majority of litigation under Title IX has focused on "accommodation" claims where plaintiffs assert that schools have failed to establish athletic programs to meet the interests and abilities of the under-represented sex. Few cases have focused on "equal treatment" claims seeking substantial equality in program components of athletics. Title IX, however, not only requires schools to establish athletic programs for female athletes, but also prohibits schools from discriminating against females participating in those programs by denying equivalence in benefits, such as ...