District Court Permits Title IX Lawsuit by Female Football Player Banned by Competitor Christian School to Proceed

E.H. v. Valley Christian Academy, 2:21:cv-07574, (C.D. Cal. 2022).

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG

E.H., a female student at Cuyama Valley High School (“Cuyama”), played on the Cuyama varsity football team. An opponent, Valley Christian Academy (“VCA”), discovered the student’s gender when she removed her helmet at the end of the game. VCA informed Cuyama that E.H. was no longer welcome on VCA premises to compete in football games and VCA would avoid playing Cuyama to respect biblical principles regarding the care of a woman. E.H. filed a lawsuit against VCA.

PROCEDURAL HISTORY

E.H.’s lawsuit alleged VCA’s behavior violated Title IX.[1] E.H. sought injunctive relief and damages. Defendants filed a Motion to Dismiss.

To overcome a Motion to Dismiss, E.H. must show that her claims are plausible based on the facts alleged in her complaint. E.H. does not need to prove anything at this stage of the lawsuit. Since the court’s analysis centers on whether her claims are plausible, rather than proven, the court accepts E.H.’s allegations as true in its Motion to Dismiss analysis. Although the court did not rule on the merits of E.H.’s claims at this point, the court’s ruling provided insight into the legal questions of the case. Title IX practitioners may use that insight to help them strengthen their own programs and avoid liability.

SUMMARY OF FACTS

E.H., a student at Cuyama, tried out and made the varsity football team at her school during the 2020-2021 academic year, ultimately playing wide receiver. In March 2021, E.H. traveled with her team to VCA’s campus to play in a scrimmage. E.H. played the entire game. When E.H. removed her helmet at the end of the game, VCA’s team, coaches, and parents realized E.H. was female. They responded negatively, glaring at E.H. while shaking their heads in disbelief.

Two days later, E.H. learned that she was no longer welcome on VCA’s premises to compete in football games because E.H. was female. VCA communicated its decision to “uproot their entire football schedule” to avoid playing Cuyama and E.H. to “respect the guiding principles of the Bible regarding the care of a woman.”[2] As a result, E.H. could not participate in football at VCA, or at her own school if VCA was the opponent.

Following the ban, high school sports officials informed VCA that its refusal to play against Cuyama because of E.H.’s gender violated federal and state laws, as well as provisions and regulations governing interscholastic athletics in California. VCA refused to reconsider.

FINDINGS & SIGNIFICANT ISSUES

Defendants argued that E.H. failed to allege a violation of Title IX for the following reasons:

  1. VCA does not receive federal financial assistance.
  2. Title IX does not protect E.H.’s interest in playing football at or against VCA.
  3. The “religious organization exception” to Title IX precludes E.H.’s claim.
  4. The “contact sports exception” to Title IX precludes E.H.’s claim.

Federal Financial Assistance

E.H. alleged that VCA is subject to Title IX because it received federal financial assistance in the form of the Paycheck Protection Program loan (“PPP loan”) and VCA’s tax-exempt status. VCA argued that neither qualifies as federal financial assistance. The court reviewed other court cases addressing this specific issue. Basing its decision on similar anti-discrimination cases, the court held that PPP loans could qualify as federal financial assistance for the purposes of Title IX. On the issue of tax-exempt status, the court noted that the Ninth Circuit Court of Appeals had not addressed the question. Ultimately, the court relied on the plain language of Title IX and held that VCA’s tax-exempt status “confers a federal financial benefit that obligates compliance with Title IX.”[3]

Title IX’s “Zone of Interest”

Next, the court considered whether E.H. “falls within the class of plaintiffs whom Congress authorized to sue” under Title IX.[4] VCA argued that Title IX does not apply to E.H.’s allegations because E.H. does not attend VCA. VCA asserted that E.H. participated in educational programs and activities at Cuyama, not at VCA. Therefore, E.H. cannot sue VCA under Title IX.

The court saw the allegations differently. According to the court, E.H. alleged that VCA excluded her from participation in VCA’s educational program and activity, not Cuyama’s program. Specifically, E.H. argued that VCA deprived her of “educational opportunities which are readily available to similarly situated males” when VCA explicitly refused to permit E.H. to play football on VCA’s premises because she was female.[5]

VCA could not point to any statute or case to support its position that a non-student excluded from participation in an education activity on a school’s premises falls outside Title IX. Instead, the court relied on a Supreme Court case and a First Circuit Court of Appeals case to support E.H.’s claim.[6] The court held that, to experience sex discrimination in an education program or activity, a person must suffer unjust or prejudicial treatment while participating or attempting to participate in the recipient’s education program or activity. E.H. was attempting to participate in VCA’s program when VCA discriminated against her on the basis of sex. Therefore, the claim falls within Title IX’s protections.

Religious Organization Exception

VCA argued that the religious organization exception precludes E.H.’s Title IX claim. The religious organization exception holds that Title IX does “not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.”[7] E.H. replied that any purported religious beliefs are pretextual and VCA’s acts are on the basis of sex, not religious conviction.

The court noted that VCA maintained a policy banning physical contact between members of the opposite sex. The code of conduct in VCA’s Handbook read: “There is to be no physical contact between boys and girls at Valley Christian Academy.”[8] However, the court pointed out that VCA’s policy did not address how the banned contact was inconsistent with its religious teachings, comparing it to other religious exception cases in which the policy provision specifically referenced scripture. Therefore, the court determined the exception did not apply at this stage of the lawsuit.

Contact Sports Exception

Lastly, VCA argued that the contact sports exception, found in the Title IX regulations, precluded E.H.’s claim.[9] Generally, the exception permits a recipient to operate separate teams for members of each sex for contact sports. The exception also stipulates that if a recipient operates a sport for one sex but not the other, members of the excluded sex have a right to try out for the team unless the sport is a contact sport.

However, the court emphasized that the exception does not create a broad exception to Title IX for contact sports. VCA contended that the exception means that Title IX does not apply to contact sports, although VCA eventually conceded, during oral arguments, that its interpretation of the exception was incorrect. The court stated that the exception merely applies to the right to try out for a sports team and held that the exception did not apply to the present case.

Considering the aforementioned analysis, the court denied VCA’s Motion to Dismiss.

KEY TAKEAWAYS

  • In the last few months, federal courts have started to grapple with the question of whether PPP loans qualify as federal financial assistance for purposes of Title IX. This court joins a few others to answer in the affirmative, changing the game for private and independent school recipients across the country. Generally, courts have limited application of Title IX to the duration of the PPP loan. Nonetheless, recipients unaccustomed to complying with Title IX may find federal courts sympathetic to discrimination claims under Title IX during their PPP loan period. If you are unsure whether your school, district, or institution received PPP funds, talk to your human resources department or office of legal counsel.
  • Applying Title IX to PPP recipients is a temporary but significant change; however, the number of federal courts affirming that tax-exempt status qualifies as federal financial assistance also seems to be growing – and that change is monumental. If more federal courts agree, many more private and independent school recipients at the K-12 level may find themselves subject to Title IX, though these decisions could arguably apply to all educational non-profits, not just schools. ATIXA will continue to monitor any developments in this area.[10]
  • Federal courts may not be receptive to religious exception claims if there is not a direct relationship between a policy and the religious tenets of the school or organization. Here, the court determined that the connection between the physical contact policy and the religious underpinnings of VCA was too attenuated to dismiss the case. Although it is possible that VCA may prove a direct connection later in the suit, and therefore qualifies for the exception, this case clarifies that a religious organization cannot simply claim the exception to dodge any Title IX obligations. Any argument VCA might make that the Bible prohibits girls from engaging in contact sports could be undermined if VCA permits any all-girl teams to engage in contact sport participation (e.g., basketball and perhaps volleyball).
  • The court here reinforces that Title IX is broad. The statute itself applies to “any person” in an education program or activity, and case law has long held that Title IX grants protections to individuals attempting to participate in an education program and activity. In this case, E.H. neither enrolled at VCA nor wanted to play for their football team. Her only connection to VCA was her desire to participate in football games on VCA’s premises or against VCA’s team. The desire to participate, and the exclusion based on her sex, was enough to generate Title IX liability and survive the Motion to Dismiss. It is also likely that VCA’s stance will run afoul of California law when the case goes to trial.

Read more Keeping Up With the Courts blogs here.


[1] E.H. also alleged violations of California state law. This publication will focus solely on the Title IX allegations.

[2] 2:21:cv-07574 at 2.

[3] Id. at 11.

[4] Id.

[5] Id. at 13.

[6] North Haven Board of Ed. v. Bell, 456 U.S. 512 (1982); Doe v. Brown University, 896 F.3d 127 (1st Cir. 2018).

[7] 20 U.S.C. Section 1681(a)(3).

[8] 2:21:cv-07574 at 16.

[9] 34 C.F.R. Section 106.41.

[10] For more information on a recent court case, visit: https://www.atixa.org/blog/are-private-k-12-schools-subject-to-title-ix-and-title-vi-by-virtue-of-their-federal-tax-exempt-status/