Selina Soule v. Connecticut Association of Schools ( 2022 )

21-1365-cv
Selina Soule et al. v. Connecticut Association of Schools et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2022
(Argued: September 29, 2022 Decided: December 16, 2022)
Docket No. 21-1365-cv
SELINA SOULE, a minor, by Bianca Stanescu, her mother; CHELSEA MITCHELL, a
minor, by Christina Mitchell, her mother; ALANNA SMITH, a minor, by Cheryl
Radachowsky, her mother; ASHLEY NICOLETTI, a minor, by Jennifer Nicoletti, her
mother,
Plaintiffs-Appellants,
v.
CONNECTICUT ASSOCIATION OF SCHOOLS, INC. D/B/A CONNECTICUT
INTERSCHOLASTIC ATHLETIC CONFERENCE; BLOOMFIELD PUBLIC SCHOOLS BOARD
OF EDUCATION; CROMWELL PUBLIC SCHOOLS BOARD OF EDUCATION; GLASTONBURY
PUBLIC SCHOOLS BOARD OF EDUCATION; CANTON PUBLIC SCHOOLS BOARD OF
EDUCATION; DANBURY PUBLIC SCHOOLS BOARD OF EDUCATION,
Defendants-Appellees,
and
ANDRAYA YEARWOOD; THANIA EDWARDS, on behalf of her daughter, T.M.;
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES,
Intervenor-Defendants-Appellees. *
* The Clerk of the Court is directed to amend the caption to conform to the above.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
Before: CHIN, CARNEY, and ROBINSON, Circuit Judges.
Appeal from a judgment of the United States District Court for the
District of Connecticut (Chatigny, J.) dismissing claims against defendants-
appellees Connecticut Interscholastic Athletic Conference and its member high
schools under Title IX of the Education Amendments of 1972 challenging its
policy allowing transgender students to participate in gender specific sports
consistent with their gender identity. Plaintiffs-appellants are four cisgender
female students who allege that the policy disproportionally disadvantages
cisgender girls as compared to boys. The district court granted defendants-
appellees' motion to dismiss the challenge to the policy as not justiciable and the
claims for monetary relief as barred.
AFFIRMED.
ROGER G. BROOKS (John J. Bursch, Christiana M.
Holcomb, and Cody S. Barnett, on the brief),
Alliance Defending Freedom, Scottsdale, AZ,
Washington, DC, and Ashburn, VA, for Plaintiffs-
Appellants.
2
PETER J. MURPHY (Linda L. Yoder, on the brief), Shipman
& Goodwin LLP, Hartford, CT, and Johanna G.
Zelman, FordHarrison, LLP, Hartford, CT, and
David S. Monastersky, Howd & Ludorf, LLC,
Hartford, CT, and Michael E. Roberts,
Commission on Human Rights and
Opportunities, Hartford, CT, for Defendants-
Appellees.
JOSHUA BLOCK (Lindsey Kaley, Galen Sherwin, Elana
Bildner, and Dan Barrett, on the brief), ACLU
Foundation, New York, NY, and ACLU
Foundation of Connecticut, Hartford, CT, for
Intervenor-Defendants-Appellees.
CHIN, Circuit Judge:
Since 2013, defendants-appellees, Connecticut Interscholastic
Athletic Conference (the "CIAC") and its member high schools (together,
"Defendants"), have followed the "Transgender Participation" Policy (the
"Policy"), which permits high school students to compete on gender specific
athletic teams consistent with their gender identity if that is different from "the
gender listed on their official birth certificates." CIAC By-Laws Article IX,
3
Section B. 1 Plaintiffs-appellants are four female athletes who are cisgender
("Plaintiffs"), and who attended CIAC member high schools and competed in
CIAC-sponsored girls' track events against female athletes who are transgender.
Plaintiffs allege that the Policy violates Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681 et seq. ("Title IX"), because the participation of transgender
females in girls' high school athletic events results in "students who are born
female" having materially fewer opportunities for victory, public recognition,
athletic scholarships, and future employment "than students who are born male."
J. App'x at 131 ¶ 4.
To remedy the alleged Title IX violations, Plaintiffs requested
damages and two injunctions -- one to enjoin future enforcement of the Policy
and one to alter the records of certain prior CIAC-sponsored girls' track events to
remove the records achieved by two transgender girls, who intervened in this
action. The district court dismissed the claims on grounds that (1) Plaintiffs'
request to enjoin future enforcement of the Policy was moot; (2) Plaintiffs lacked
standing to assert their claim for an injunction to change the record books; and
1 The CIAC's Handbook, which includes the Policy at Article IX, Section B of the By-Laws,
can be found on the CIAC's website at http://www.casciac.org/ciachandbook. The Policy is
available at page 54 of the Handbook.
4
(3) Plaintiffs' claims for monetary damages were barred under Pennhurst State
School & Hospital v. Halderman, 451 U.S. 1 (1981). 2
Like the district court, we are unpersuaded, with respect to the claim
for an injunction to alter the records, that Plaintiffs have established the injury in
fact and redressability requirements for standing; both fail for reasons of
speculation. And because we conclude that the CIAC and its member schools
did not have adequate notice that the Policy violates Title IX -- indeed, they had
notice to the contrary -- Plaintiffs' claims for damages must be dismissed.
Accordingly, we AFFIRM the district court's dismissal of Plaintiffs'
claims against the CIAC and its member high schools.
STATEMENT OF THE CASE
The material facts alleged in Plaintiffs' second amended complaint
(the "Complaint") are assumed to be true, and all reasonable inferences are
drawn in their favor. See Donoghue v. Bulldog Invs. Gen. P'ship, 696 F.3d 170, 173
(2d Cir. 2012) (Rule 12(b)(1) motion to dismiss); Harris v. Mills, 572 F.3d 66, 71 (2d
Cir. 2009) (Rule 12(b)(6) motion to dismiss).
2 At oral argument, Plaintiffs conceded that their claim for prospective injunctive relief is
moot because all Plaintiffs have graduated from high school and are no longer subject to the
Policy. Thus, the dismissal of this claim as moot is affirmed.
5
I. The Facts
Plaintiffs Chelsea Mitchell, Ashley Nicoletti, Alanna Smith, and
Selina Soule were -- at the time the Complaint was filed -- Connecticut high
school students who each ran track for their high school teams. Each was
competitive at the statewide level and trained hard to "shave mere fractions of
seconds off [their] race times." J. App'x at 130 ¶ 1. Plaintiffs allege that the Policy
forced them to compete against female athletes who are transgender, which
deprived them of a fair shot at statewide titles.
The CIAC has applied the Policy since the 2013-2014 school year,
permitting high school students to participate on gender specific sports teams
consistent with their gender identity. The Policy expresses a commitment "to
providing transgender student-athletes with equal opportunities to participate in
CIAC athletic programs consistent with their gender identity," and "conclude[s]
that it would be fundamentally unjust and contrary to applicable state and
federal law to preclude a student from participation on a gender specific sports
team that is consistent with the public gender identity of that student for all other
purposes." CIAC By-Laws Article IX, Section B. Thus, a student's eligibility to
participate on a CIAC gender specific sports team is based on "the gender
6
identification of that student in current school records and daily life activities in
the school and community," and the school district's "determin[ation] that the
expression of the student's gender identity is bona fide and not for the purpose of
gaining an unfair advantage in competitive athletics." Id.Pursuant to the Policy, intervenor-defendant-appellee Andraya
Yearwood participated on the girls' track team at Cromwell High School for the
2017, 2018, and 2019 indoor and outdoor seasons, and the 2020 indoor season.
Also pursuant to the Policy, intervenor-defendant-appellee Terry Miller
participated on the girls' track team at Bloomfield High School for the 2018
outdoor season, the 2019 indoor and outdoor seasons, and the 2020 indoor
season. During these track seasons, Yearwood and Miller, both girls who are
transgender, competed in CIAC-sponsored track events against girls who are
cisgender, including Plaintiffs -- Mitchell, Nicoletti, Smith, and Soule.
In certain races, Yearwood and Miller finished ahead of Plaintiffs.
For example:
Mitchell: In the 2019 Class S State Championship Women's Indoor
55-meter; the 2019 State Open Championship Women's Indoor 55-meter;
the 2019 Class S State Championship Women's Outdoor 100-meter; and the
7
2019 Class S State Championship Women's Outdoor 200-meter, Mitchell
either placed second after Miller, or third after both Miller and Yearwood.
Nicoletti: In the 2019 Class S State Championship Women's Outdoor
100-meter preliminary race, Miller took second place, Yearwood took
third, and Nicoletti took ninth.
Smith: In the 2019 State Open Championship Women's Outdoor
200-meter final, Miller placed first and Smith placed third.
Soule: In the 2019 State Open Championship Women's Indoor 55-
meter preliminary race, Miller, Yearwood, and Soule finished first, second,
and eighth, respectively.
In other races, Plaintiffs finished ahead of Yearwood and Miller. For
example, in the 2019 Class S State Championship Women’s Outdoor 100-meter
preliminary race, Mitchell, Miller, and Yearwood finished first, second, and
third, respectively.
II. The Proceedings Below
In February 2020, Plaintiffs brought this action against the CIAC and
its member high schools, alleging that the Policy "is now regularly resulting in
boys displacing girls in competitive track events in Connecticut"; "students who
8
are born female now have materially fewer opportunities to stand on the victory
podium, fewer opportunities to participate in post-season elite competition,
fewer opportunities for public recognition as champions, and a much smaller
chance of setting recognized records, than students who are born male"; and
"[t]his reality is discrimination against girls that directly violates the
requirements of Title IX." J. App'x at 131 ¶¶ 3-5.
Plaintiffs also alleged that the Policy has impacted their individual
achievements by depriving them -- as cisgender female athletes -- of certain state
championship titles and opportunities to advance to higher levels of statewide
competition. Specifically, Plaintiffs alleged that but for the Policy, Mitchell
would be the record holder of four additional state champion titles; Nicoletti
would have placed seventh in the 2019 Class S State Championship Women's
Outdoor 100-meter preliminary race, and advanced to the 100-meter final; Smith
would have placed second in the 2019 State Open Championship Women's
Outdoor 200-meter final; and Soule would have placed sixth in the 2019 State
Open Championship Women's Indoor 55-meter preliminary race, and advanced
to the 55-meter final.
9
Plaintiffs sought a declaration that the Policy violates Title IX by
"failing to provide competitive opportunities that effectively accommodate the
abilities of girls" and "equal treatment, benefits, and opportunities for girls in
athletic competition"; monetary relief for the alleged Title IX violations; an
injunction against future enforcement of the Policy; and an injunction requiring
the CIAC and its member schools "to remove male athletes from any
record . . . designated for girls or women" and "to remove times achieved by
athletes born male . . . from any records purporting to record times achieved by
girls or women." J. App'x at 175-76 (prayer for relief). Plaintiffs also moved for a
preliminary injunction to prevent transgender girls from competing in the then-
upcoming outdoor track season.
Before Plaintiffs' motion for a preliminary injunction could be heard,
the COVID-19 pandemic closed schools and nonessential businesses throughout
Connecticut, and all interscholastic athletic competition was suspended
indefinitely. The district court denied Plaintiffs' motion for expedited treatment
on April 8, 2020, concluding that Plaintiffs had no need for a preliminary
injunction when all spring track events had been cancelled due to the ongoing
pandemic.
10
On August 21, 2020, the CIAC and its member schools jointly moved
to dismiss the Complaint, asserting, inter alia, that Plaintiffs lacked standing to
seek injunctions enjoining future enforcement of the Policy and requiring
revisions to race records; Plaintiffs' requested relief would violate the rights of
Yearwood, Miller, and other transgender students protected by Title IX and the
Equal Protection Clause of the Fourteenth Amendment; Plaintiffs had not
plausibly alleged that competing against girls who are transgender violates Title
IX; and Plaintiffs' claims for monetary relief under Title IX were barred.
On April 25, 2021, the district court granted Defendants' motion to
dismiss on grounds that (1) Plaintiffs' request for injunctive relief against the
Policy became moot after Yearwood and Miller graduated in June 2020;
(2) Plaintiffs lacked standing to seek an injunction requiring corrections to past
athletic records because their theory of redressability was too speculative; and
(3) Plaintiffs' request for damages was barred because the CIAC did not receive
adequate notice that its Policy violated Title IX. See generally Soule v. Conn. Ass'n
of Schs., Inc., No. 20-CV-00201, 2021 WL 1617206 (D. Conn. Apr. 25, 2021). The
court thereafter entered judgment, dismissing the action.
This appeal followed.
11
DISCUSSION
We conclude that, first, Plaintiffs lack standing to seek an injunction
rewriting the records and, second, Plaintiffs' claims for monetary relief are barred
under Pennhurst. Accordingly, we affirm the district court's dismissal of the
Complaint.
I. Claims for Injunctive Relief
We review de novo the district court's dismissal of the claims for
injunctive relief pursuant to Rule 12(b)(1). See Conn. Parents Union v. Russell-
Tucker, 8 F.4th 167, 172 (2d Cir. 2021). "[A] plaintiff asserting standing must
'allege facts that affirmatively and plausibly suggest that [she] has standing to
sue' and courts 'need not credit a complaint's conclusory statements without
reference to its factual context.'" Id. (citation omitted).
To satisfy the constitutional requirement of standing, plaintiffs in
federal court bear the burden of establishing that (1) they have suffered an
"injury in fact -- an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or hypothetical";
(2) the injury is "fairly traceable to the challenged action of the defendant"; and
(3) it is "likely, as opposed to merely speculative, that the injury will be redressed
12
by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(citations and internal quotation marks omitted). "A plaintiff seeking injunctive
or declaratory relief cannot rely on past injury to satisfy the injury requirement
but must show a likelihood that he or she will be injured in the future."
McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 284 (2d Cir.
2004) (citation omitted). The claimed future injury must be "certainly impending
to constitute injury in fact," and "allegations of possible future injury are not
sufficient." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (citation and
internal quotation marks omitted).
Here, Plaintiffs present two theories of standing. First, Plaintiffs
argue that the Policy deprived them of a "chance to be champions," and that
CIAC's current records perpetuate this past injury because "[w]hen records fail to
appropriately credit female achievements, athletes like Plaintiffs feel 'erased.'"
Appellants' Br. at 18-19. Second, Plaintiffs argue that the current records affect
Plaintiffs' future employment opportunities, and that correcting the records
13
would redress this harm. 3 We conclude that both theories of standing fail to
establish injury in fact and redressability.
A. A Chance to be Champions
Plaintiffs' theory of injury in fact -- that the Policy deprived them of
a "chance to be champions" -- fails because they have not alleged a cognizable
deprivation here. All four Plaintiffs regularly competed at state track
championships as high school athletes, where Plaintiffs had the opportunity to
compete for state titles in different events. And, on numerous occasions,
Plaintiffs were indeed "champions," finishing first in various events, even
sometimes when competing against Yearwood and Miller. See, e.g., J. App'x at
157 ¶ 100 (Mitchell defeated Yearwood and Miller in 2019 Class S Women's
Outdoor 100-meter); Suppl. App'x at 54-55 (Soule placed first in long jump and
4x200 relay at 2019 state championships). Plaintiffs simply have not been
deprived of a "chance to be champions."
3 Plaintiffs also alleged in their Complaint that maintaining the current records affects
their college recruitment and scholarship opportunities. This claim, however, is now moot
because all Plaintiffs have graduated from high school, have matriculated at undergraduate
institutions, and are competing on collegiate track-and-field teams; it would be impossible, at
this point, for an injunction correcting the records to grant Plaintiffs improved college
recruitment opportunities. See Knox v. Serv. Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307 (2012)
("A case becomes moot only when it is impossible for a court to grant any effectual relief
whatever to the prevailing party." (citation and internal quotation marks omitted)).
14
We do not hold that the deprivation of a "chance to be champions"
can never be "an invasion of a legally protected interest," sufficient for injury in
fact. Lujan, 504 U.S. at 560. Indeed, in McCormick, a case which Plaintiffs rely on,
we found that female athletes suffered this deprivation, in violation of Title IX,
when the school district scheduled girls' soccer in the Spring and boys' soccer in
the Fall, because participation in state championships for soccer was available
only to teams scheduled in the Fall. See McCormick, 370 F.3d at 295-96.
But the injury suffered by the female athletes in McCormick is easily
distinguishable from Plaintiffs' circumstances here. In McCormick, the school
district's scheduling decision afforded male athletes, and simultaneously
deprived female athletes of, the opportunity to compete at state championships --
the "chance to be champions." Id. at 295 ("The scheduling of soccer in the spring,
therefore, places a ceiling on the possible achievement of the female soccer
players that they cannot break through no matter how hard they strive. The boys
are subject to no such ceiling."). Here, the Policy did not deprive Plaintiffs of the
opportunity to compete at state championships.
Even assuming Plaintiffs could show injury in fact, the independent
constitutional requirement of redressability remains unsatisfied. It is not
15
apparent that an injunction to rewrite the records would redress Plaintiffs'
alleged deprivation -- revising the records would not give Plaintiffs "a chance to
be champions." Plaintiffs' injury of being deprived of a "chance to be champions"
could be remedied only with damages for past deprivation, or with an injunction
requiring do-overs of the races. But the former, as explained below, are
unavailable to Plaintiffs, and Plaintiffs do not seek the latter. Indeed, the races
were run in conformity with the rules in effect at the time; times were recorded;
medals for gold, silver and bronze were in fact awarded to athletes who finished
first, second, and third; and the records accurately reflect those results. Plaintiffs
have not shown that there is a proper legal framework for invalidating or
altering records achieved by student-athletes who competed in conformity with
the applicable rules. This mismatch between Plaintiffs' alleged injury and
requested relief is fatal to establishing redressability. See Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 107 (1998) ("Relief that does not remedy the injury
suffered cannot bootstrap a plaintiff into federal court; that is the very essence of
the redressability requirement.").
Plaintiffs argue that an injunction changing the records would
remedy the fact that Plaintiffs feel "erased" by the current records, because the
16
injunction would give Plaintiffs additional public recognition for their athletic
achievements and hard work. Appellants' Br. at 19-20. But absent a proper
means to alter the records, a ruling from this Court would give Plaintiffs nothing
more than "psychic satisfaction," which, on its own, "is not an acceptable Article
III remedy because it does not redress a cognizable Article III injury." Steel, 523
U.S. at 107; accord Kapur v. Fed. Commc'ns Comm'n, 991 F.3d 193, 196 (D.C. Cir.
2021) ("The 'psychic satisfaction' of winning doesn't cut it."); I.L. v. Alabama, 739
F.3d 1273, 1281 (11th Cir. 2014) ("[G]ranting the plaintiffs the relief they request
would result in nothing more than a mere 'moral' victory, something the federal
courts may not properly provide."); Doyle v. Town of Litchfield, 372 F. Supp. 2d
288, 303 (D. Conn. 2005) ("[S]ome emotional or mental satisfaction . . . is
inadequate to confer standing, no matter how worthy the cause.").
Thus, Plaintiffs' first theory of standing -- that the Policy deprived
them of a "chance to be champions" -- fails to establish both injury in fact and
redressability.
B. Prospects at Future Employment
Next, Plaintiffs argue that the records "could . . . affect all four
Plaintiffs' prospects at future employment." Appellants' Br. at 20 (emphasis
17
added). "[A]llegations of possible future injury," however, are insufficient to
satisfy injury in fact. Clapper, 568 U.S. at 409. To support the argument that
Plaintiffs' future employment opportunities are harmed by maintaining the
records as is, Plaintiffs assert that "[o]ur society places a high value on athletic
achievements," 94% of female business executives "participated and recorded
achievements in interscholastic sports," and most employers will likely "consider
Plaintiffs more favorably in light of their achievements." Appellants' Br. at 21-22.
It is true that employers often find candidates with athletic
experience more appealing. Indeed, some employers (including federal judges
perhaps) may favor candidates for employment who competed on collegiate
athletic teams for the very reason that athletic experience speaks loudly about the
candidate's discipline, time-management skills, patience, and ability to
collaborate. But the records that Plaintiffs want re-written already show their
participation and impressive achievements in high school athletics; the mere fact
that athletic experience may be a significant factor for prospective employers in
their hiring decisions does not show that Plaintiffs' future employment
opportunities are harmed by the current records.
18
Moreover, because "[a]n employer is entitled to arrive at a subjective
evaluation of a candidate's suitability for a position," Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 106 (2d Cir. 2001), superseded in part on other grounds by
Fed. R. Civ. P. 37(e), Plaintiffs can only speculate as to how prospective
employers will exercise their discretion when hiring and whether the requested
revisions to the records would have any noticeable impact. This speculation is
insufficient to show injury in fact. See Clapper, 568 U.S. at 410-14 (concluding that
plaintiffs' claim of future injury was not "certainly impending" where harm to
plaintiffs depended on the discretion of government officials and plaintiffs could
only speculate as to how they would exercise their discretion). Thus, Plaintiffs
have failed to show injury in fact because they have not established that
maintaining the records as they are now will cause future injury to Plaintiffs'
employment opportunities that is "certainly impending."
Nor have Plaintiffs established redressability. Plaintiffs argue that
athletic achievements highlight valuable skill sets to employers and can
distinguish Plaintiffs from other applicants. But even conceding that some
athletic achievements can impact one's opportunities for employment, Plaintiffs
have only speculated that changing the records -- so that (1) Mitchell finishes first
19
instead of second in four championship races, (2) Smith finishes second instead
of third in one championship race, and (3) Soule and Nicoletti both advance to
the next level of competition in their respective events -- would change a
prospective employer's decision to hire any one of them. The reality is that an
injunction requiring changes to the records would not bind any prospective
employers who consider hiring Plaintiffs because they are not before the court,
and thus a favorable decision for Plaintiffs is not likely to change their future
employment prospects or outcomes. See Lujan, 504 U.S. at 562 (holding no injury
and redressability where their "existence . . . depends on the unfettered choices
made by independent actors not before the courts and whose exercise of broad
and legitimate discretion the courts cannot presume either to control or to
predict" (citation omitted)). And, as the district court noted, even if the records
were amended, Plaintiffs have not shown that their employment prospects are
likely to be any different, given that a simple internet search would reveal to the
prospective employer this controversy about the records. See Soule, 2021 WL
1617206, at *7. Thus, because Plaintiffs have failed to plausibly allege that an
injunction requiring changes to the records is likely to change their employment
opportunities, Plaintiffs have failed to meet their burden on redressability.
20
To be clear, we do not decide now whether a court can ever award
an injunction to rewrite records. As the parties to this appeal emphasized at
argument, the accuracy of records are significant, "inaccurate" records can cause
real injury to athletes, and the question of accuracy can go beyond identifying
who had the fastest time, who jumped the farthest, or who hit the most home
runs. 4 Even so, not every harm is an injury that can be redressed in an Article III
court -- the requirements of standing must be satisfied, and Plaintiffs have failed
to do so here.
4 Controversies over athletic records are not uncommon. Around the time of argument in
this case, the controversy over who holds the single-season home run record in Major League
Baseball ("MLB") was reignited when New York Yankee Aaron Judge beat Roger Maris's record
by hitting his sixty-second home run that season. See Jack Vita, WATCH: Aaron Judge Hits 62nd
Home Run Passing Roger Maris' AL HR Record, Sports Illustrated (Oct. 4, 2022),
https://www.si.com/fannation/mlb/fastball/news/watch-aaron-judge-hits-62nd-home-run-
passing-roger-maris-al-hr-record. Before Judge, Barry Bonds, Mark McGwire, and Sammy Sosa
each had surpassed Maris's sixty-one home runs. But their season records, set in MLB's
infamous "steroid era," carry the stain of performance-enhancing drugs. See Mike Gavin, Aaron
Judge Hits 61st Home Run to Tie Roger Maris' Record, NBC Sports (Sept. 28, 2022),
https://www.nbcsports.com/philadelphia/phillies/aaron-judge-hits-61st-home-run-tie-roger-
maris-record. Some, including Judge, say Bonds's seventy-three home run record is the one to
beat, because seventy-three is the most home runs hit in a single MLB season. See Joseph
Salvador, Aaron Judge Recently Said Barry Bonds's 73 Home Runs Is True Record, Sports Illustrated
(Sept. 29, 2022), https://www.si.com/mlb/2022/09/29/aaron-judge-barry-bonds-73-home-runs-
true-record. Others maintain that Babe Ruth still holds the record, because Ruth's sixty home
runs in a 154-game season is more impressive than the records set in 162-game seasons by
Maris, Bonds, McGwire, Sosa and Judge. See Gavin, supra. All this is to say the debate over
who holds the record, whether aided by more games or abetted by banned substances, persists
to this day, among MLB fans and athletes, on the internet, and in the ballparks -- but it, like this
controversy, is not a debate for the courtroom.
21
II. Claims for Damages
We review de novo a district court's grant of a Rule 12(b)(6) motion to
dismiss for failure to state a claim upon which relief can be granted. See Simmons
v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d Cir. 2010).
A. Applicable Law
Title IX broadly prohibits education programs that receive federal
funding from discriminating "on the basis of sex." 20 U.S.C. § 1681(a) ("No
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 education program or activity receiving Federal financial
assistance . . . ."). The Supreme Court has recognized an implied private right of
action under Title IX, Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979), and has
held that monetary relief is available in such suits, Franklin v. Gwinnett Cnty. Pub.
Sch., 503 U.S. 60, 76 (1992).
Because Congress enacted Title IX pursuant to its authority under
the Spending Clause, however, private damages actions under Title IX "are
available only where recipients of federal funding had adequate notice that they
could be liable for the conduct at issue." Davis Next Friend LaShonda D. v. Monroe
22
Cnty. Bd. of Educ., 526 U.S. 629, 640 (1999) ("When Congress acts pursuant to its
spending power, it generates legislation 'much in the nature of a contract: in
return for federal funds, the States agree to comply with federally imposed
conditions.'" (citation omitted)); see also Pennhurst, 451 U.S. at 17 ("There can, of
course, be no knowing acceptance if a State is unaware of the conditions
[imposed by Congress's Spending Clause legislation] or is unable to ascertain
what is expected of it."). To determine whether a funding recipient is on notice
that its conduct "falls within the scope of Title IX's proscriptions," Davis, 526 U.S.
at 647, we look to guidance promulgated by the agency responsible for Title IX's
enforcement, the Department of Education's Office of Civil Rights ("OCR"), see
Biediger v. Quinnipiac Univ., 691 F.3d 85, 93 (2d Cir. 2012), and to relevant
decisions from the Courts of Appeals, see Jackson v. Birmingham Bd. of Educ., 544
U.S. 167, 183-84 (2005).
There is one recognized exception to Pennhurst's notice requirement:
"Pennhurst does not bar a private damages action under Title IX where the
funding recipient engages in intentional conduct that violates the clear terms of
the statute." Davis, 526 U.S. at 642.
23
B. Application
There is no dispute here that the CIAC and its member schools are
recipients of federal education funding for Title IX purposes. Thus, unless the
exception set forth in Davis were to apply, Plaintiffs' suit for private damages
may proceed only if Pennhurst's notice requirement is satisfied -- i.e., if it is
shown that the CIAC and its member schools had adequate notice that they
could be liable under Title IX as a result of the Policy. We conclude that only the
opposite has been shown here.
Looking first to guidance promulgated since the Policy's adoption in
2013, OCR's position on transgender students' participation in athletics has
fluctuated with the changes in presidential administrations in 2016 and 2020. 5
But even when promulgating and rescinding its guidance, OCR never clearly
provided that allowing transgender students to participate on athletic teams
5 In 2017, OCR rescinded its guidance from 2016 -- which stated that transgender students
must be allowed to participate in activities consistent with their gender identity, see Letter from
Catherine E. Lhamon, Ass't Sec'y for Civil Rights, U.S. Dep't of Educ., and Vanita Gupta,
Principal Dep. Ass't Att'y Gen. for Civil Rights, U.S. Dep't of Justice (May 13, 2016), -- on
grounds that the legal issues implicated in the 2016 guidance needed to be considered "more
completely," Letter from Sandra Battle, Acting Ass't Sec'y for Civil Rights, U.S. Dep't of Educ.,
and T.E. Wheeler, II, Acting Ass't Att'y Gen. for Civil Rights, U.S. Dep't of Justice (Feb. 22, 2017).
Similarly, in August 2020, OCR sent the CIAC a Revised Letter of Impending Enforcement
Action, stating that OCR interpreted Title IX to require that gender specific sports teams be
separated based on biological sex, but OCR withdrew this letter in February 2021, stating that it
should "not be relied upon in this or any other matter." See ECF Nos. 172-1, 154-2.
24
consistent with their gender identity violates Title IX. Cf. Jackson, 544 U.S. at 183(finding adequate notice where "regulations implementing Title IX clearly
prohibit retaliation and have been on the books for nearly 30 years").
Next, the Supreme Court's recent decision in Bostock v. Clayton
County, Georgia, 140 S. Ct. 1731 (2020), interpreting Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the decisions of our sister circuits
interpreting Title IX strongly support the conclusion that the CIAC and its
member schools lacked notice that a policy such as that at issue here violates
Title IX.
In Bostock, the Supreme Court interpreted Title VII's prohibition of
discrimination "on the basis of sex" as proscribing discrimination based on one's
transgender status, 140 S. Ct. at 1737, and the Court has "looked to its Title VII
interpretations of discrimination in illuminating Title IX," Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581, 616 n.1 (1999) (Thomas, J., dissenting). Title IX includes
language identical to that in Title VII, broadly prohibiting discrimination "on the
basis of sex." 20 U.S.C. § 1681(a). Thus, it cannot be said that the Policy -- which
prohibits discrimination based on a student's transgender status by allowing all
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students to participate on gender specific teams consistent with their gender
identity -- "falls within the scope of Title IX's proscriptions."
Moreover, the Courts of Appeals considering whether Title IX
prohibits schools from treating transgender students consistent with their gender
identity have held that the statute does not. See Parents for Priv. v. Barr, 949 F.3d
1210, 1217 (9th Cir. 2020), cert. denied, 141 S. Ct. 894 (2020) (concluding that school
district's plan allowing transgender students to use bathrooms consistent with
their gender identity does not discriminate on the basis of sex in violation of Title
IX because the plan treats all students equally, regardless of their sex); Doe by &
through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 535 (3d Cir. 2018), cert.
denied, 139 S. Ct. 2636 (2019) ("The School District's policy allows all students to
use bathrooms and locker rooms that align with their gender identity. It does
not discriminate based on sex, and therefore does not offend Title IX.").
Some Courts of Appeals have taken it further and held that treating
transgender students consistent with their sex assigned at birth -- as the CIAC
and its member schools would be doing if the Policy were terminated -- violates
Title IX. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 619 (4th Cir. 2020), as
amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878 (2021) (holding that school
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board's policy requiring students to use bathrooms based on biological sex
unlawfully discriminated against transgender student in violation of Title IX);
Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034,
1049 (7th Cir. 2017)("A policy that requires an individual to use a bathroom that
does not conform with his or her gender identity punishes that individual for his
or her gender non-conformance, which in turn violates Title IX."); see also Dodds
v. U.S. Dep't of Educ., 845 F.3d 217, 221 (6th Cir. 2016). Although these cases from
our sister circuits do not address the exact issue of participation of transgender
athletes on gender specific sports teams, such authority nonetheless establishes
that discrimination based on transgender status is generally prohibited under
federal law, and further supports the conclusion that the CIAC and its member
schools lacked clear notice that the Policy violates Title IX.
Invoking Davis, Plaintiffs argue that their suit for private damages
may proceed even if there was no clear notice that the Policy violates Title IX
because the CIAC and its member schools, through the Policy, intentionally
discriminated against cisgender female athletes. We are not persuaded.
This "intentional conduct" exception to Pennhurst's notice
requirement has been applied only in cases where the funding recipient is
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deliberately indifferent to known acts of retaliation or sexual harassment in
violation of Title IX. See, e.g., Jackson, 544 U.S. at 173 ("Retaliation against a
person because [they] complained of sex discrimination is [a] form of intentional
sex discrimination encompassed by Title IX's private cause of action."); Davis, 526
U.S. at 646-47 (concluding that federal funding recipients may be liable for
private damages under Title IX "where the recipient is deliberately indifferent to
known acts of student-on-student sexual harassment"); Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 290 (1998) (concluding the same where deliberate
indifference is to known teacher-on-student sexual harassment); Franklin, 503
U.S. at 74-75 (same). Plaintiffs have presented no persuasive arguments as to
why the exception should also apply in this case, where the alleged Title IX
violation is a facially neutral policy, and not a failure to respond to known
instances of discriminatory conduct that clearly violates Title IX. See Horner v.
Kentucky High Sch. Athletic Ass'n, 206 F.3d 685, 693 (6th Cir. 2000) (explaining that
Franklin, Gebser, and Davis "all address deliberate indifference to sexual
harassment, and are not readily analogous" to cases alleging sex discrimination
with respect to facially neutral athletic opportunities). And even if this exception
to the notice requirement is extended to cases involving claims of discrimination
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in athletics, the Policy could not be considered "intentional conduct that violates
the clear terms of [Title IX]," Davis, 526 U.S. at 642, given Bostock and the
decisions from other Courts of Appeals. Thus, the "intentional conduct"
exception is inapplicable here.
Accordingly, we conclude that Plaintiffs' claims for money damages
are barred.
CONCLUSION
For the reasons stated above, we AFFIRM the district court's
judgment dismissing the Complaint.
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