Parker v. Franklin County Community School Corp. , 667 F.3d 910 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3595
A MBER P ARKER, et al.,
Plaintiffs-Appellants,
v.
F RANKLIN C OUNTY C OMMUNITY S CHOOL
C ORPORATION, et al.,
Defendants-Appellees.
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.
A RGUED M AY 31, 2011—D ECIDED JANUARY 31, 2012
Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
T INDER, Circuit Judge. A packed gymnasium, cheer-
leaders rallying the fans, the crowd on their feet sup-
porting 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-
2 No. 10-3595
tion, support, and encouragement to the players. After
all, what would a spectator sport be without the specta-
tors? 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 discrim-
inatory 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 dis-
missal 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.
I. Background
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
No. 10-3595 3
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 sched-
uled for primetime nights. Primetime is defined as eve-
nings that precede days without school. The record
reveals that at those weekend games, there “are large
crowds in attendance . . ., substantial student and com-
munity 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 com-
munity 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 im-
portant than boys’.
4 No. 10-3595
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 deci-
sions 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-
No. 10-3595 5
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.
II. Discussion
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 plain-
tiff 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
6 No. 10-3595
of the plaintiffs did not result in a disparity so sub-
stantial that it denied the plaintiffs equality of athletic
opportunity.
We review the district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences 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 defen-
dants’ 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).
No. 10-3595 7
A. Title IX Claim
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 man-
agement, and leadership that further long-term per-
sonal growth, independence and wellbeing” 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”) (quota-
tions omitted). Conversely, discriminating against female
8 No. 10-3595
athletes and creating feelings of inferiority with their
male counterparts can have long-lasting negative ef-
fects. 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 dis-
crimination 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
No. 10-3595 9
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 pro-
grams to meet the interests and abilities of the under-
represented sex. Few cases have focused on “equal treat-
ment” 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 discrimi-
nating against females participating in those programs
by denying equivalence in benefits, such as equipment,
facilities, coaching, scheduling, and publicity. This only
makes sense; if schools could meet Title IX’s require-
ments by creating a sufficient number of female athletic
programs that are substantially inferior to their male
counterparts’ programs, Title XI’s enforcement scheme
would ring hollow.
The plaintiffs here have brought an equal treatment
claim for discrimination in scheduling only 53 percent of
their games on primetime nights, while scheduling
95 percent of the boys’ games on primetime nights.
Title IX prohibits discrimination on the basis of gender
by educational institutions receiving federal financial
assistance. See 20 U.S.C. § 1681(a). Subject to exceptions
not pertinent here, Title IX 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 education
program or activity receiving Federal financial assistance.”
Id. Congress enacted Title IX in 1972 with two principal
10 No. 10-3595
objectives in mind: “[T]o avoid the use of federal
resources to support discriminatory practices” and “to
provide individual citizens effective protection against
those practices.” Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 286 (1998) (quoting Cannon v. Univ. of Chi., 441
U.S. 677, 704 (1979)). The statute was modeled after Title
VI, which is parallel to Title IX except it prohibits race
discrimination, not sex discrimination, and applies in
all programs receiving federal funds, not only in educa-
tion programs. Id. Both statutes provide the same ad-
ministrative mechanism for terminating federal finan-
cial support for institutions engaged in prohibited dis-
crimination. See Cannon, 441 U.S. at 696. These statutes
were enacted pursuant to Congress’ spending power
and operate in the same manner, conditioning an offer
of federal funding on a promise by the recipient not to
discriminate, in what amounts essentially to a contract
between the government and the recipient of funds.
See Gebser, 524 U.S. at 286-88.
Title IX was not specifically targeted at nor does it
mention athletic programs. The issue of discrimination
against women in education-based athletic programs
was only discussed briefly in the congressional debates
on Title IX. See McCormick, 370 F.3d at 286 (citing 117
Cong. Rec. 30,407 (1971) (statement of Sen. Bayh)). After
the statute was passed, there were attempts to limit its
effects on athletic programs, see 120 Cong. Rec. 15,323
(1974) (statement of Sen. Tower), but those efforts failed
and Congress directed the Department of Health, Educa-
tion, and Welfare (HEW) to prepare proposed regula-
tions implementing Title IX, including in the area of
No. 10-3595 11
“intercollegiate athletic activities.” Education Amends.
of 1974, Pub. L. No. 93-380, § 844 (1974) (Javits Amend-
ment). The HEW published regulations that specifically
addressed the statute’s requirements in the athletic pro-
grams of educational institutions. See 34 C.F.R. § 106.41.
HEW followed notice and comment rulemaking proce-
dures, and President Ford approved the final regulations,
as required by Title IX, 20 U.S.C. § 1682, which went
into effect in 1975. See Equity in Athletics, Inc. v. Dep’t of
Educ., 639 F.3d 91, 95-96 (4th Cir. 2011); see also McCormick,
370 F.3d at 287 (detailing process). The HEW was split
into the Department of Health and Human Services
(HHS) and the Department of Education in 1979. The
HEW regulations in effect at that time were left with
HHS, and the Department of Education duplicated them.
See 45 C.F.R. pt. 86 (HHS regulations); 34 C.F.R. pt. 106
(Department of Education regulations). “All educational
functions were transferred to [the Department of Educa-
tion], and thus . . . [it is] the administrative agency charged
with administering Title IX.” McCormick, 379 F.3d at 287.
The Department of Education’s Office of Civil Rights
(OCR) is responsible for enforcement of Title IX. See
20 U.S.C. § 3441(a)(3).
The regulations provide that “[n]o person shall, on the
basis of sex, be excluded from participation in, be denied
the benefits of, be treated differently from another
person or otherwise be discriminated against in any
interscholastic, intercollegiate, club or intramural athlet-
ics.” 34 C.F.R. § 106.41(a). They state that “[a] recipient
[the school corporations here] . . . shall provide equal
athletic opportunity for members of both sexes,” and when
12 No. 10-3595
determining if equal opportunities are available the
following factors, among others, should be considered:
“(1) Whether the selection of sports and levels of competi-
tion effectively accommodate the interests and abilities
of members of both sexes” and nine other factors that
include “(3) Scheduling of games and practice time . . . .”
Id. at 106.41(c). The first factor focuses on accommoda-
tion (known as “effective accommodation” claims—34
C.F.R. § 106.41(c)(1)) and the remaining factors focus on
denial of equivalence in other athletic benefits (known
as “equal treatment” claims—34 C.F.R. § 106.41(c)(2)-(10)).
These are distinct claims. See Pederson, 213 F.3d at 865
n.4 (distinguishing between claim for lack of effective
accommodation and claim for the denial of equivalence
in other athletic benefits). “Effective accommoda-
tion claims . . . concern the opportunity to participate in
athletics, while equal treatment claims allege sex-based
differences in the schedules, equipment, coaching,
and other factors affecting participants in athletics.”
Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 965
(9th Cir. 2010).
In an effort to clarify the obligations of federal aid
recipients, the HEW issued a policy interpretation in
1979. See 44 Fed. Reg. 71,413 (Dec. 11, 1979). Although
the policy interpretation is designed specifically for
intercollegiate athletics, its general principles will often
apply to club, intramural, and interscholastic athletic
programs, which are also covered by the regulations. Id.Both parties concede, and we do not disagree, that the
policy interpretation is entitled to deference. See Kelley v.
Bd. of Tr., 35 F.3d 265, 268 (7th Cir. 1994) (“Since the
No. 10-3595 13
Policy Interpretation maps out a reasonable approach
to measuring compliance with Title IX, this Court does not
have the authority to condemn it.”); see also McCormick,
370 F.3d at 290 and cases cited therein.1
The policy interpretation is divided into three
sections: (1) compliance in financial assistance (scholar-
ships) based on athletic ability; (2) equivalence in other
athletic benefits and opportunities (equal treatment
claims); and (3) effective accommodation of student
interest and abilities (accommodation claims). See 44
Fed. Reg. 71,414. As noted, accommodation claims focus
on expanding athletic programs to meet the interests of
the underrepresented sex. That section provides that
an institution has effectively accommodated the interests
of its male and female students if it satisfies three
benchmarks or “safe harbors.” See Kelley, 35 F.3d at 271; see
also 44 Fed. Reg. 71,418. Unfortunately, the defendants
focused their defense on the “safe harbors” and facts
showing that they have effectively accommodated the
1
The Department published the proposed policy interpreta-
tion for public comment; it considered over 700 comments
and visited eight universities before publishing the policy
interpretation in its final form. See 44 Fed. Reg. 71413. Because
the parties don’t dispute that deference is afforded to the
policy interpretation, and because it is both persuasive and
reasonable, we need not explore whether United States v.
Mead Corp., 533 U.S. 218 (2001) requires Chevron or Skidmore
deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S.
134 (1944).
14 No. 10-3595
interests and abilities of male and female athletes. These
facts are not relevant to the plaintiffs’ claim that they
didn’t receive equal treatment in the scheduling of girls’
basketball games. The defendants’ only response to
the disparity in scheduling is that it’s not substantial
enough to establish a Title IX violation.
In determining whether an institution is providing
equal treatment, the policy interpretation lists as a
factor the scheduling of games and practice times and
particularly, the time of day competitive events are sched-
uled. 44 Fed. Reg. at 71,416. The policy states:
The Department will assess compliance . . . by
comparing the availability, quality and kinds of
benefits, opportunities, and treatment afforded
members of both sexes. Institutions will be in
compliance if the compared program components
are equivalent, that is, equal or equal in effect.
Under this standard, identical benefits, opportuni-
ties, or treatment are not required, provided the
overall effect of any differences is negligible.
Id. at 71,415 (emphasis added). The policy also states: “If
comparisons of program components reveal that treat-
ment, benefits, or opportunities are not equivalent in
kind, quality or availability, a finding of compliance may
still be justified if the differences are the result of nondis-
criminatory factors.” Id. When there are “disparities
in benefits, treatment, services, or opportunities in in-
dividual segments of the program,” as in this case, the
Department will base its compliance determination on
whether such disparities are “substantial enough in and
No. 10-3595 15
of themselves to deny equality of athletic opportunity.”
Id. at 71,417. In responding to commentators who sug-
gested measuring equality of opportunity by having a
“sport specific” comparison, the Department disagreed
and noted that “a sport specific comparison could
actually create unequal opportunity.” Id. at 71,422. “[T]he
regulation frames the general compliance obligations
of recipients in terms of program-wide benefits and
opportunities”[;] “Title IX protects the individual as
a student-athlete, not as a basketball player, or swim-
mer.” Id.
Although Congress authorized an administrative en-
forcement scheme for Title IX, the Supreme Court has
recognized an implied private right of action to enforce
its ban on intentional discrimination via Section 1681.
Cannon, 441 U.S. at 717. The Court subsequently estab-
lished that monetary damages, in addition to injunctive
relief, are available in such actions. See Franklin v.
Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75-76 (1992)
(holding that monetary damages are recoverable in a
sexual harassment suit where intentional discrimination
was alleged). The Supreme Court has further stated
that claimants under Title IX need not exhaust admin-
istrative remedies before bringing suit directly in court.
See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
247 (2009).
After Cannon, the Court held in Alexander v. Sandoval,
532 U.S. 275, 289-90 (2001), that there was no private
right of action to enforce a disparate-impact regulation
promulgated under the similarly worded Title VI. The
16 No. 10-3595
Court noted that, similar to Title IX, private individuals
may sue to enforce 42 U.S.C. § 601 and obtain both in-
junctive relief and damages, but only for intentional
discrimination. Id. at 280-81. The Court stated: “We do
not doubt that regulations applying § 601’s ban on in-
tentional discrimination are covered by the cause of
action to enforce that section. Such regulations, if valid
and reasonable, authoritatively construe the statute
itself, . . . and it is therefore meaningless to talk about a
separate cause of action to enforce the regulations apart
from the statute.” Id. at 284. This is because if
Congress “intends the statute to be enforced through
a private cause of action [it] intends the authoritative
interpretation of the statute to be so enforced as well.”
Id. The Court, however, held that there was no similar
private right of action to enforce disparate-impact reg-
ulations because § 601 prohibits only intentional dis-
crimination. Id. at 285-86, 293. The court reasoned: “It is
clear . . . that the disparate-impact regulations do not
simply apply § 601—since they indeed forbid conduct that
§ 601 permits—and therefore clear that the private right of
action to enforce § 601 does not include a private right
to enforce these regulations.” Id. at 285.
But the plaintiffs did not bring a disparate impact
claim, they brought a disparate treatment claim. They
challenge the defendants’ facially discriminatory policy
of scheduling more boys’ basketball games on primetime
nights than girls’ basketball games because of sex. See
Anderson v. Cornejo, 355 F.3d 1021, 1024 (7th Cir. 2004)
(“ ‘[I]ntent’ (and thus disparate treatment) in constitu-
tional law means doing something because of, rather
No. 10-3595 17
than in spite of (or with indifference to), the prohibited
characteristic.”); see also Cmtys. for Equity, 459 F.3d at
694 (stating that when there is a facially discriminatory
policy, the plaintiff needn’t show that the defendant
acted with discriminatory animus but only that the de-
fendant intentionally treated one group less favorably
because of their sex).2 The plaintiffs rely on the express
prohibition in § 1681(a) against intentional sex discrim-
ination and the regulations that apply § 1681(a)’s ban
on intentional discrimination; “it is therefore meaning-
less to talk about a separate cause of action to enforce
the regulations apart from the statute.” Sandoval, 532
U.S. at 284 (“A Congress that intends the statute to be
enforced through a private cause of action intends
the authoritative interpretation of the statute to be so
enforced as well.”). Thus, although Amicus Curiae Eagle
Forum contends that under Sandoval this case should
be dismissed because the regulations can’t grant a
private right of action, its focus on the regulations
misses the mark. The claim here is intentional sex dis-
crimination under § 1681(a) for which Cannon held there
is a private cause of action; the regulations merely
provide guidance in interpreting § 1681.
2
Amicus Curiae Eagle Forum Education & Legal Defense Fund
(Eagle Forum) asserts that the scheduling decisions here were
not because of sex, and rather, the schools have many possible
reasons for disparate schedules. This ignores the schools’
implicit concession that the scheduling was because of sex;
the schools have not pointed to any other reason for the dispa-
rate treatment.
18 No. 10-3595
Because Title IX was enacted as an exercise of Con-
gress’ powers under the Spending Clause, the implied
right of action for money damages exists only where
funding recipients had adequate notice that they could
be liable for the conduct at issue. Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 17 (1981); see also Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 181-82 (2005); Gebser,
524 U.S. at 289. That is because “[w]hen Congress enacts
legislation under its spending power, that legislation is
‘in the nature of a contract: in return for federal funds,
the States agree to comply with federally imposed condi-
tions.’ ” Jackson, 544 U.S. at 181-82 (citing Pennhurst, 451
U.S. at 17). Pennhurst, however, does not preclude
private suits for intentional acts that violate the clear
terms of the statute. Id. (citing Davis v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 642 (1999)). Recipients will have
sufficient notice where a statute makes clear that some
conditions are placed on the receipt of federal funds,
even if Congress has not specifically identified and pro-
scribed each condition in the legislation. Id. (citing
Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 665-66
(1985)).
“[F]unding recipients have been on notice that they
could be subjected to private suits for intentional sex
discrimination under Title IX since 1979, when [the
Court] decided Cannon.” Jackson, 544 U.S. at 182. The
Supreme Court has “consistently interpreted Title IX’s
private cause of action broadly to encompass diverse
forms of intentional sex discrimination.” Id. at 183 (citing
Gebser and Davis); see also id. at 175 ( “ ‘Discrimination’ is
a term that covers a wide range of intentional unequal
No. 10-3595 19
treatment; by using such a broad term, Congress gave
the statute a broad reach.”). For example, even though
the statute does not mention sexual harassment, the
Court has held that Title IX proscribes harassment with
sufficient clarity to satisfy Pennhurst’s notice require-
ment and serve as a basis for a damages action. See
Gebser, 524 U.S. at 290-91 (private right of action for
damages under Title IX encompasses intentional sex
discrimination in the form of a recipient’s deliberate
indifference to teacher’s sexual harassment of a student);
see also Davis, 526 U.S. at 633 (private right of action
for damages under Title IX exists for “student-on-stu-
dent” harassment where funding recipient acts with
deliberate indifference to known acts of harassment in
its programs or activities). This case may present an “even
easier case than deliberate indifference” because the
actions at issue here are “easily attributable to the
funding recipient,” and thus, “always—by definition—
intentional.” See Jackson, 544 U.S. at 183-84 (plain terms
of Title IX prohibit retaliation based on coaches’s com-
plaints that girls’ basketball team wasn’t receiving equal
funding and equal access to athletic equipment and
facilities).
A question we raised at oral argument was whether
the defendants were on notice under the plain statement
doctrine as most recently articulated in Sossamon v.
Texas, 131 S. Ct. 1651 (2011), that they were intentionally
violating the clear terms of Title IX by the disparate
scheduling practices even though they were otherwise
providing the girls with equal athletic opportunity in
the sport programs offered? We asked for supple-
20 No. 10-3595
mental briefing on this issue and the defendants
essentially conceded that a private right of action can
arise for an equal treatment type claim where the sport
specific “disparity is ‘substantial enough’ by itself to
deny girls . . . equality of athletic opportunity.” (Appeal
Doc. 37, p. 4) (citing McCormick, 370 F.3d at 295). Instead
of arguing that this suit is barred by the plain state-
ment doctrine, the defendants contend that the plaintiffs
have failed to show a pervasive, substantial disparity.
Thus, the defendants have waived this argument by not
raising it before the district court or developing it on
appeal. See, e.g., Ind. Prot. & Advocacy Servs. v. Ind. Family
& Soc. Servs., 603 F.3d 365, 370 (7th Cir. 2010) (Eleventh
Amendment defense is waivable) (citing Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 620 (2002)).
We don’t disagree with the defendants that Title IX
requires a systemic, substantial disparity that amounts to
a denial of equal opportunity before finding a violation of
the statute, see, e.g., Davis, 526 U.S. at 650 (deliberate in-
difference to sexual harassment not actionable unless
harassment is “so severe, pervasive, and objectively
offensive that it can be said to deprive the victims of
access to the educational opportunities or benefits pro-
vided by the school”), so it is to that issue we now turn.
While accommodation claims are the subject of most
Title IX cases, at least two circuits and a number of
district courts have determined that plaintiffs made out a
successful equal treatment claim. See McCormick, 370
F.3d at 295-96 (finding school districts’ scheduling of
girls’ high school soccer in the spring and the boys’ in
the fall deprived the girls but not the boys of the oppor-
No. 10-3595 21
tunity to compete in the regional and state championships,
in violation of Title IX); see also Cmtys. for Equity, 178
F. Supp. 2d at 855-57 (holding that high school athletic
association violated Title IX by scheduling athletic
seasons and tournaments for girls’ sports during non-
traditional and less advantageous times of the academic
year than boys’ athletic seasons and tournaments), aff’d,
459 F.3d at 695-96.
In analyzing the plaintiffs’ claim, we must first deter-
mine whether a difference in scheduling has a negative
impact on one sex, and then determine whether that
disparity is substantial enough to deny members equality
of athletic opportunity. See McCormick, 370 F.3d at 293. The
court should look to the overall effect of any differences
on a program-wide, not sport-specific basis. Id. (citing
44 Fed. Reg. at 71,422). For example, disadvantaging
one sex in one part of a school’s athletic program can
be offset by a comparable advantage to that sex in
another area. Id. The defendants have not pointed to
any areas in which female athletes receive comparably
better treatment than male athletes at their schools to
offset any disadvantage resulting from the defendants’
basketball scheduling practices. Accordingly, we must
consider whether the sport-specific disparity is sub-
stantial enough to deny equal athletic opportunity,
which we believe includes equivalent opportunity to
compete before audiences.
Initially we note that the disparity here was systemic.
The evidence shows that Franklin has maintained
this scheduling disparity for several years (at least since
22 No. 10-3595
2007) and we presume it has been this way since the
programs were initially established. Back in 1997, the
OCR wrote a letter to the Indiana High School Athletic
Association (IHSAA), indicating that the OCR viewed the
difference in boys’ and girls’ basketball schedules as
substantial. The OCR wrote the letter because it was
concerned about the scheduling practices of high school
basketball games in Indiana. The IHSAA distributed
the letter to member schools, including the defendants
in this action, and encouraged them to assess their pro-
grams. The letter stated that “[i]n enforcing the Title IX
regulatory requirements pertaining to the scheduling
of games, OCR also examines the day of the week on
which competitive events are scheduled and assesses
whether the scheduling of competitions by a given re-
cipient allows athletes of both sexes an equivalent op-
portunity to compete before audiences.” If an institu-
tion reserves primetime for boys, the OCR explained that
the institution “would be expected to provide a non-
discriminatory justification for the difference in treat-
ment.” An institution cannot, the OCR wrote, adhere
to “tradition” or to the scheduling practices of the confer-
ence as a legitimate, non-discriminatory justification
for gender-based difference in treatment.
The letter continued that the schools “could be found
by OCR to be out of compliance with the scheduling of
games and practice times component of the athletic
provisions of Title IX if they reserve Friday nights for
boys basketball games and schedule girls basketball
games on other nights.” The OCR concluded that it
would consider “whether Friday night games offer the
No. 10-3595 23
best opportunity to compete before the largest possible
audience, whether week night games, particularly
when travel is involved, have a disproportionately nega-
tive effect on the academic studies of the members of
the girls basketball team, and whether the athletics
and coaches of the boys and girls basketball teams
consider Friday nights to be the optimal time to compete.”
The letter from the OCR was distributed to Franklin
fourteen years ago; yet, the disparity in scheduling con-
tinues. Franklin notes that it is seeking to remedy the
disparity on an ongoing basis and that the number of
games girls played in primetime increased by ten
percent in 2009-2010. But despite Franklin’s efforts, a
trier of fact could determine that the present dispar-
ity—girls play 53 percent of their games on primetime
nights while boys play 95 percent of their games on
primetime nights—is substantial enough to deny equal
athletic opportunity and that Franklin hasn’t gone far
enough to remedy the harmful effects of this disparity.
The plaintiffs presented evidence of the negative
impact this disparity has on the girls— disproportionate
academic burdens resulting from a larger number of
weeknight games, reduced school and community
support (loss of audience), and psychological harms
(a feeling of inferiority). The Women’s Sports Founda-
tion and others filed an amicus brief devoted largely to
demonstrating the harm suffered by girls by being rele-
gated to non-primetime scheduling, noting similar con-
cerns as the plaintiffs. We agree that these harms are
not insignificant and may have the effect of discouraging
girls from participating in sports in contravention of
the purposes of Title IX.
24 No. 10-3595
For example, girls might be less interested in joining
the basketball team because of a lack of school and com-
munity support, which results in the perception
that the girls’ team is inferior and less deserving than
the boys’. The practice of scheduling almost twice as
many boys’ basketball games on primetime nights
sends a message that female athletes are subordinate
to their male counterparts and are “second-class.” See
Cmtys. for Equity, 178 F. Supp. 2d at 836 (describing psy-
chological effects of disparate scheduling); see also
McCormick, 370 F.3d at 295 (“Scheduling the girls’ soccer
season out of the championship game season sends a
message to the girls on the teams that they are not
expected to succeed and that the school does not value
their athletic abilities as much as it values the abilities
of the boys.”). This message echos throughout the com-
munity and has stunted the development of a base of
women’s sport fans. See Note, Cheering on Women and
Girls in Sports: Using Title IX to Fight Gender Role Oppression,
110 Harv. L. Rev. 1627, 1630 (1997) (“Women’s and
girls’ sports are [often] marginalized by a lack of atten-
dance and support.”). “There can . . . be little doubt that
this second-class treatment is at least part of the reason
why women do not take up, or continue in, sport[s] at
the same rate as men.” See Koller, supra at 405-06.
Thus, this disparate scheduling creates a cyclical effect
that stifles community support, prevents the develop-
ment of a fan base, and discourages females from partici-
pating in a traditionally male-dominated sport. Accord-
ingly, “[t]he different value that society may place on
the competitive success of female athletes as compared
No. 10-3595 25
to male athletes . . . must not play a role in our assess-
ment of the significance of the denial of opportunity to
the female athletes . . . .” McCormick, 370 F.3d at 296.
The central aspect of Title IX’s purpose is to encourage
women to participate in sports, Neal, 198 F.3d at 768,
despite stereotyped notions of women’s interests and
abilities, Cohen v. Brown Univ., 101 F.3d 155, 179 (1st Cir.
1996) (“Title IX was enacted in order to remedy discrim-
ination that results from stereotyped notions of women’s
interests and abilities.”). “Interest and ability rarely
develop in a vacuum; they evolve as a function of op-
portunity and experience.” Id.Further, some girls who would like to try out for
the team may be dissuaded by the number of non-
primetime games that conflict with their academic stud-
ies. When the girls play weeknight games, the
time they have to complete their homework and study
for tests is severely restricted, placing them at an
academic disadvantage. J.L.P. attested that by the time
the junior varsity and varsity games end, it is close to
10:00 p.m. and she is often up until 11:30 p.m. to 12:30 a.m.
finishing homework. The disparity in scheduling and
resulting conflict that the girls face between basketball
and academics may discourage them from participating
in basketball altogether.
Based on these harms suffered by the Franklin girls’
basketball team because of the obvious disparity in sched-
uling, we conclude that the plaintiffs have presented
sufficient evidence for trial to determine whether the
disparity and resulting harm in this case are substantial
enough to deny equal athletic opportunity.
26 No. 10-3595
The defendants argue in a footnote that the non-
Franklin defendants should be dismissed because
neither plaintiff attended those schools and thus, they
were not the direct beneficiaries of the federal funds
flowing to those schools. The defendants have waived
this argument by not developing it on appeal. See
Argyropoulos v. City of Alton, 539 F.3d 724, 738 (7th
Cir. 2008) (undeveloped arguments are waived). Their
argument is in a footnote, consists of four sentences,
and contains no citation to authority. The defendants
attempt to “incorporate . . . by reference” arguments in
their brief to the district court seeking to dismiss the non-
Franklin defendants on this basis, but “appellate briefs
may not incorporate other documents by reference.”
Albrechtsen v. Bd. of Regents, 309 F.3d 433, 435-36 (7th
Cir. 2002); see also United States v. Foster, 789 F.2d 457,
462 (7th Cir. 1986).
The non-Franklin defendants are necessary parties in
the scheduling of games. The defendants jointly agree
on the schedules and Franklin cannot unilaterally
change the schedules. In fact, when Franklin’s athletic
director tried to increase the number of primetime
girls’ basketball games, the other athletic directors in
the EIAC conference refused her request. The non-
Franklin defendants must comply with any injunction
that is issued in this case; otherwise the plaintiffs are
left without an effective remedy. See Fed. R. Civ.
P. 65(d)(2)(C) (stating that an injunction binds parties
and other persons who are in active concert or participa-
tion with a party if they receive actual notice); see also
Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 91 F.3d
No. 10-3595 27
914, 919 (7th Cir. 1996) (“[P]arties otherwise without
an injunction’s coverage may subject themselves to its
proscriptions should they aid or abet the named parties
in a concerted attempt to subvert those proscriptions.”).
The plaintiffs, however, cannot seek monetary
damages against the non-Franklin schools because their
argument focuses on the harm suffered as a result of
Franklin’s overall disparate scheduling practices. The non-
Franklin schools may have contributed to the plaintiffs’
harm in scheduling the one or two games those defendants
played against Franklin. However, Title IX requires
examination of the overall scheduling practices of a
school and the resulting harm from any disparity;
that examination is missing here as to the non-Franklin
defendants. In fact, some of the non-Franklin schools
have significantly less scheduling disparity than
Franklin and others played the Franklin girls’ team on
a primetime night. Nevertheless, if a trier of fact finds
in favor of the plaintiffs, any remedy will require the
affirmative effort of all defendants, and thus, as noted
above, the non-Franklin defendants are subject to any
injunction that may be entered against Franklin.
B. Equal Protection Claim
The plaintiffs have also asserted a claim under 42 U.S.C.
§ 1983 for violation of the equal protection clause of the
Fourteenth Amendment. U.S. C ONST. amend. XIV, § 1.
Title IX was not meant to be an exclusive mechanism
for addressing gender discrimination in schools, or a
substitute for § 1983 suits as a means of enforcing con-
28 No. 10-3595
stitutional rights. See Fitzgerald, 555 U.S. at 258. “Even
where particular activities and particular defendants
are subject to both Title IX and the Equal Protection
Clause, the standards for establishing liability may not
be wholly congruent.” Id. at 257. Without reaching the
merits of the plaintiffs’ equal protection claim, the district
court granted summary judgment to the defendants
on the basis of state sovereign immunity under the Elev-
enth Amendment.3
3
The Eleventh Amendment provides: “The Judicial power of
the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. C ONST . amend. XI. The text
of the Eleventh Amendment “does not provide for immunity
when a citizen sues his resident state.” See Crosetto v. State Bar
of Wis., 12 F.3d 1396, 1400 n.5 (7th Cir. 1993). The Court, never-
theless, has “understood the Eleventh Amendment to stand
not so much for what it says, but for the presupposition . . .
which it confirms . . . . That presupposition, first observed
over a century ago in Hans v. Louisiana, 134 U.S. 1 (1890), has
two parts: first, that each State is a sovereign entity in our
federal system; and second, that ‘[i]t is inherent in the nature
of sovereignty not to be amenable to the suit of an individual
without its consent[.]’ ” Bd. of Regents of Univ. of Wis. Sys. v.
Phoenix Int’l Software, Inc., 653 F.3d 448, 472-73 (7th Cir. 2011)
(quoting Seminole Tribe of Florida v. Fla., 517 U.S. 44, 54
(1996)). “In developing the Hans doctrine, the Eleventh Amend-
ment has served as a historical framework for the Supreme
Court’s teaching that the Constitution never granted federal
(continued...)
No. 10-3595 29
“A cause of action under § 1983 requires a showing that
the plaintiff was deprived of a right secured by the Con-
stitution or federal law, by a person acting under color
of law.” Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir.
2011) (emphasis added). We don’t need to address state
sovereign immunity where we can resolve the issue by
examining whether the defendants are “persons” under
§ 1983. “It is both unnecessary and inappropriate to
decide whether the Constitution would prevent litiga-
tion that Congress has not authorized in the first
place.” See Holton v. Ind. Horse Racing Comm’n, 398 F.3d
928, 929 (7th Cir. 2005) (citing Lapides, 535 U.S. at 617-18).
On the other hand, if the defendants are “persons”
within the meaning of § 1983, Congress, as part of its
powers under Section 5 of the Fourteenth Amendment,
has exercised its power to allow suit against them. See
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); see also Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989);
Mercado v. Dart, 604 F.3d 360, 362 (7th Cir. 2010).
The Supreme Court has construed the statute to in-
clude “municipal corporations and similar governmental
entities” as “persons” subject to § 1983 liability. Howlett
v. Rose, 496 U.S. 356, 376 (1990). The Court in
Howlett restated the proposition that “[b]y including
municipalities within the class of ‘persons’ subject to
liability for violations of the Federal Constitution and
3
(...continued)
courts any judicial power over suits by a citizen against his
own state.” Crosetto, 12 F.3d at 1400.
30 No. 10-3595
laws, Congress—the supreme sovereign on matters of
federal law—abolished whatever vestige of the State’s
sovereign immunity the municipality possessed.” Id.
“Federal law makes governmental defendants that
are not arms of the State, such as municipalities, liable
for their constitutional violations.” Id. at 377. The
Supreme Court again reiterated in Will that units of
local government are “persons” and are therefore,
subject to suit under § 1983. See Will, 491 U.S. at 70.
School corporations are political subdivisions with
locally elected school board members and super-
intendents; as such, they are local government units.
See, e.g., Bd. of Trs. of Hamilton Heights Sch. Corp. v. Landry,
638 N.E.2d 1261, 1265 (Ind. Ct. App. 1994) (reviewing
Indiana statutory provisions and finding that they define
a school corporation as a “political subdivision.”); see
also Ind. Code § 4-12-1-2(d) (definition of “agency of the
state” excludes school districts); Ind. Code § 22-9-1-12.1
(definition of “state agency” excludes public school
corporations); Ind. Code § 36-1-2-10 (definition of “munici-
pal corporation” includes school corporation); Ind. Code
§ 5-10.1-1-7 (definition of “political subdivision” in-
cludes public school corporation).
The defendants, however, argue that they are “arms of
the state,” not independent political subdivisions, and
as such, are not “persons” for the purpose of § 1983 and
not subject to suit. See Will, 491 U.S. at 70 (instructing
lower courts to refer to the Eleventh Amendment
arm-of-the-state analysis in determining whether an
entity is a “person” for purposes of § 1983) (citing
No. 10-3595 31
Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977));
see, e.g., Kaimowitz v. Bd. of Trs. of the Univ. of Ill., 951 F.2d
765, 767 (7th Cir. 1992) (“Because this Court has deter-
mined in previous § 1983 actions that a state university
is an alter ego of the state, and, under Will, a ‘State is
not a person’ under § 1983, it follows that a state
university is not a person within the meaning of § 1983
and therefore not subject to suits brought under
§ 1983.”). In addressing this issue, we look to the scope
of the Eleventh Amendment; although the scope of
the Eleventh Amendment and the scope of § 1983
are separate issues, “in deciphering congressional intent
as to the scope of § 1983, the scope of the Eleventh Amend-
ment is a consideration,” and the Supreme Court
has declined to adopt a reading of § 1983 that disregards
it. Will, 491 U.S. at 66.
We believe that under Will, as local governmental
units, the school corporations are clearly “persons”
within the ambit of § 1983. Id. at 70. Nevertheless, for
completeness, we address the defendants’ argument
that they are arms of the state under Eleventh Amend-
ment jurisprudence and thus not “persons” under § 1983.
The Supreme Court has set forth four factors as relevant
in determining whether a local school district is an arm
of the state: (1) the characterization of the district
under state law; (2) the guidance and control exercised
by the state over the local school board; (3) the degree
of state funding received by the district; and (4) the
local board’s ability to issue bonds and levy taxes on
its own behalf. See Mt. Healthy, 429 U.S. at 280 (holding
that a local school board, as constituted by Ohio law,
32 No. 10-3595
is “more like a county or city than it is like an arm of
the State.”); see also Burrus v. State Lottery Comm’n of
Ind., 546 F.3d 417, 420 (7th Cir. 2008) (“To determine if
a particular entity is an arm of the state, courts look
primarily at two factors: (1) the extent of the entity’s
financial autonomy from the state; and (2) the ‘general
legal status’ of the entity[;]” the entity’s financial
autonomy is the most important factor.) (quotations
omitted).
The Supreme Court in Regents of the University of Cali-
fornia v. Doe, 519 U.S. 425, 429 (1997) explained that “when
the action is in essence one for the recovery of money
from the state, the state is the real, substantial party
in interest and is entitled to invoke its sovereign
immunity from suit . . . .” Id. (quotations omitted).
When making this determination, we should inquire
“into the relationship between the State and the entity
in question,” and examine “the nature of the entity
created by state law.” Id. “[T]he question whether a
money judgment against a state instrumentality or
official would be enforceable against the State is of con-
siderable importance to any evaluation of the relation-
ship between the State and the entity or individual
being sued.” Id. at 430. “[I]t is the entity’s potential
legal liability, rather than its ability or inability to
require a third party to reimburse it, or to discharge
the liability in the first instance, that is relevant.” Id. at
431; see also id. 428, 431 (quoting with approval
dissenting judge’s statement that “[t]he question is not
who pays in the end; it is who is legally obligated to
pay the judgment that is being sought.”) (quoting Doe
No. 10-3595 33
v. Lawrence Livermore Nat’l Lab., 65 F.3d 771, 777-78 (9th
Cir. 1995) (Canby, J. dissenting), rev’d, 519 U.S. 425); see
also Duke v. Grady Mun. Schs., 127 F.3d 972, 981 (10th Cir.
1997) (“We interpret Doe to require us to focus on legal
liability for a judgment, rather than practical, or indirect,
impact a judgment would have on a state’s treasury.”)
(emphasis added).
We have previously held that “[a] local school district
ordinarily is not a ‘State’ and hence may be sued in
federal court . . . .” Gary A. v. New Trier High Sch. Dist.
No. 203, 796 F.2d 940, 945 (7th Cir. 1986). However, in
2008, the Indiana legislature passed Public Law 146-
2008, House Enrolled Act 1001, § 450-529 (amending
Education Title). Through this Act, the legislature
made significant amendments to its complex statutory
and regulatory scheme governing the financial structure
of its local school corporations and the level of state
control and oversight over the decisions and activities
of those school corporations. Based on the changes
made by PL 146, the plaintiffs urge us to take a dif-
ferent course from that in Gary.
We begin by considering the “most salient factor” in
determining whether the defendants are arms of the
state—who is legally obligated to pay any judgment
in this case? The answer to that question is the
defendants, not the State of Indiana. With the enactment
of PL 146, state funding now makes up between two-
thirds to three-fourths of the state budget and state sales-
tax distributions have replaced local property taxes as
100 percent of the schools’ general fund revenue. Never-
34 No. 10-3595
theless, it’s irrelevant that state aid may find its way to
the plaintiffs’ pocket. Gary A., 796 F.2d at 945. Although
the state funds a significant portion of the schools’
budget, school corporations still have the power to
levy taxes and issue bonds under certain circumstances
for non-operating funds. For example, the debt services
fund may be used to pay “debt and other obligations
arising out of funds borrowed to pay judgments against
the school corporation.” Ind. Code § 20-40-9-6(c).
This can be funded through a property tax levy. Ind.
Code § 20-46-7-4. The schools have the statutory option
to issue bonds for paying an adverse judgment under
Ind. Code § 20-48-1-1(b)(2), the payment of which may
be funded out of the debt service levy. The schools
can also establish a self-insurance fund for the purposes
of paying judgments. See Ind. Code § 20-40-12-5.
In the event of a school’s inability to pay its debt
service obligations, “the treasurer of state, upon being
notified of the failure by a claimant, shall pay the
unpaid debt service obligations that are due from the
funds of the state only to the extent of the amounts ap-
propriated by the general assembly for the calendar
year for distribution to the school corporation from state
funds, deducting the payment from the appropriated
amounts. ” Ind. Code § 20-48-1-11(c); see also Ind. Code § 6-
1.1-20.6-10(c). “This section shall be interpreted liberally
so that the state shall to the extent legally valid ensure
that the debt service obligations of each school corpora-
tion are paid. However, this section does not create a
debt of the state.” Ind. Code § 20-48-1-11(d); see also Ind.
Code § 6-1.1-20.6-10(d). The state guarantees unpaid debt
No. 10-3595 35
service obligations only to the extent of the amounts
appropriated for the school. The statute doesn’t require
the state to pay out additional funding to the schools
for judgments. And despite this “guarantee,” judgments
remain the schools’ legal obligation. See, e.g., Febres v.
Camden Bd. of Educ., 445 F.3d 227, 233-34 (3d Cir. 2006)
(school board was not arm of the state even though it
received most of its funding from the state where state
did not have legal obligation to provide funds in
response to adverse judgment against board); Holz v.
Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1182 (9th Cir.
2003) (school district was not state agency even though
state funds provided 98 percent of district’s budget in
part because state was not legally required to satisfy any
monetary judgment entered against the district); Duke,
127 F.3d at 980-81 (concluding that even though the
state provided 98 percent of the school board’s
budget, “the factor relating to the liability of the
state treasury points away from Eleventh Amendment
immunity, for the simple reason that the state of New
Mexico is not legally liable for a judgment against a
school district”).
Further, as noted above, nothing in PL 146 altered the
general legal status of school corporations as political
subdivisions with locally elected school board members
and superintendents (not gubernatorial appointments)
who serve local communities (not the State of Indiana as
a whole). “Indiana chose to organize public education
through local school districts instead of establishing a
single state agency to control all public education.” See
Landry, 638 N.E.2d at 1265 (quotations omitted). School
36 No. 10-3595
corporations are independent corporate bodies that can
sue and be sued and enter into contracts. See id.; see
also Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 223-
24 (4th Cir. 2001) (factors weighing against finding that
school board was arm of state). Thus, although the
state now provides a significant portion of the schools’
funding through revenues raised by state sales taxes
and with that has exerted significantly more guidance
and control over the local school corporations, the
schools are nonetheless still local units with political
independence and a certain amount of operational inde-
pendence. As explained, they also have the ability to
raise their own funds for purposes of paying judg-
ments and are legally obligated to pay those judgments
from their budget. As such, we conclude that the defen-
dants are “persons” within § 1983 and subject to suit.
Because the district court determined that the
defendants were entitled to sovereign immunity, it never
addressed whether any genuine issues of material fact
exist as to plaintiffs’ equal protection claims. We there-
fore remand for the district court to consider this issue
in the first instance. See, e.g., Johnson v. Hix Wrecker Serv.,
Inc., 651 F.3d 658, 664 (7th Cir. 2011) (declining to
address issue raised on summary judgment that the
district court hadn’t first considered).
III. Conclusion
For the reasons discussed above, we vacate the district
court’s entry of summary judgment in favor of the defen-
No. 10-3595 37
dants on the plaintiffs’ Title IX and equal protection
claims and remand for further proceedings consistent
with this opinion.
1-31-12