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A.B. v. Hawaii State Department of Education

United States District Court, D. Hawaii

May 24, 2019

A. B., BY HER PARENTS AND NEXT FRIENDS, C.B. AND D.B., AND T. T., BY HER PARENTS AND NEXT FRIENDS, K.T. AND S.T., Plaintiffs,
v.
HAWAII STATE DEPARTMENT OF EDUCATION, and OAHU INTERSCHOLASTIC ASSOCIATION, Defendants.

          ORDER DENYING DEFENDANT OAHU INTERSCHOLASTIC ASSOCIATION'S MOTION TO DISMISS COMPLAINT

          Leslie E. Kobayashi, United States District Judge.

         Before the Court is Defendant Oahu Interscholastic Association's (“OIA”) Motion to Dismiss Plaintiffs A.B., by her parents and next friends, C.B. and D.B., and T.T., by her parents and next friends, K.T. and S.T.'s Complaint for Declaratory and Injunctive Relief, Filed December 6, 2018 (“Motion”), filed on January 18, 2019. [Dkt. no. 22.] Plaintiffs A.B., by her parents and next friends, C.B. and D.B., and T.T., by her parents and next friends, K.T. and S.T. (“Plaintiffs”), filed their memorandum in opposition on March 15, 2019, and the OIA filed its reply on March 22, 2019. [Dkt. nos. 44, 47.] Defendant Hawaii State Department of Education (“DOE”) filed a statement of no opposition on March 15, 2019. [Dkt. no. 45.] This matter came on for hearing on April 5, 2019. The OIA's Motion is hereby denied because Plaintiffs have stated sufficient facts to state a plausible claim against the OIA.

         BACKGROUND

         Plaintiffs filed the instant action on December 6, 2018, asserting federal question jurisdiction. [Complaint (dkt. no. 1.) at ¶ 8.[1] Plaintiff A.B. is a seventeen year-old, twelfth-grade student at James Campbell High School (“Campbell”), who is a member of the Campbell girls' varsity water polo and swimming teams. Plaintiff T.T. is also a seventeen year-old, twelfth-grade student at Campbell, who is a member of the Campbell girls' varsity water polo and swimming teams. [Id. at ¶¶ 11-12.]

         According to the Complaint, the DOE is a state administrative agency that manages 292 public schools within the State of Hawai`i, including Campbell, which is a four-year public high school. Plaintiffs allege the DOE receives federal financial assistance and is subject to the anti-discrimination provisions of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681, et seq. [Id. at ¶ 13.] The OIA is an unincorporated athletic association composed of the DOE's secondary schools on the island of Oahu, including Campbell. Plaintiffs allege both that the OIA is an “instrumentality of, and is controlled by the DOE, ” and that they are “pervasively entwined” because the OIA's Executive Director is a DOE employee, and all five regular members of the OIA's Executive Council are principals of DOE high schools. [Id. at ¶¶ 14-15.] Because of its connections with the DOE, Plaintiffs allege the OIA receives federal financial assistance, and is subject to the anti-discrimination provisions of Title IX. [Id. at ¶ 16.]

         Plaintiffs allege that female athletes at Campbell suffer worse treatment, fewer benefits, and fewer opportunities than male athletes, and that the OIA's policies and practices control and/or greatly influence this disparate treatment. [Id. at ¶¶ 51-52.] Specifically, Plaintiffs allege the OIA's discriminatory practices are evident in its: (1) competitive facilities; (2) scheduling of games; (3) travel opportunities; and (4) publicity and promotion. [Id. at ¶ 56.] As to the DOE, Plaintiffs allege it has failed to provide its female student athletes with: (1) athletic locker rooms, [2] practice facilities, and competitive facilities; (2) equipment and supplies; (3) scheduling of games and practice time; (4) availability and quality of coaching; (5) travel opportunities; (6) medical and training services and facilities; and (7) publicity and promotion. [Id. at ¶ 55.] Plaintiffs allege the DOE and OIA determine which competitive facilities will be used by DOE athletic programs during interscholastic competition, and consistently allocate better facilities to boys' athletic programs. [Id. at ¶¶ 91-92.] Both the DOE and OIA control the scheduling of athletic seasons, games, and tournaments, and allegedly dedicate three quarters of the available Friday night spots - which are preferable because they attract the largest student and community support - to boys' programs. [Id. at ¶¶ 99-101.] In addition, the DOE and OIA give preferential travel and publicity to the Campbell boys' football and baseball programs by sending these teams to off-island travel for athletic competitions, while Campbell girls' athletic programs did not have similar opportunities. [Id. at ¶¶ 125-29.]

         Plaintiffs allege that they have submitted numerous complaints to the DOE regarding unfair treatment, and have made written and oral requests to obtain equal accommodation and/or engage in discussions with the DOE regarding the same. [Id. at ¶¶ 157-59.] In response, the DOE and Campbell administrators have allegedly retaliated by, inter alia, threatening to cancel the Campbell girls' water polo team, their season, or both; and forcing the water polo team to resubmit their program paperwork after a particularly heated meeting between the water polo athletes, their parents, the Campbell Principal, and the Athletic Director, even though it had been previously submitted. [Id. at ¶ 160.]

         Plaintiffs have alleged the following claims: 1) a violation of Title IX against Defendants based on their failure to take remedial actions to meet the anti-discrimination provisions under Title IX, and their continued unequal treatment of female athletes at Campbell (“Count I”); 2) a violation of Title IX against Defendants based on their failure to provide Campbell female athletes with equivalent athletic participation opportunities (“Count II”); and 3) a violation of Title IX against the DOE based on the DOE's retaliation for Plaintiffs' attempts to report and/or discuss the DOE's practice of sex discrimination (“Count III”).

         In the instant Motion, the OIA argues Plaintiffs' Title IX claims against the OIA should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), because the Complaint does not allege that the OIA is a recipient of federal funds which is a required element of a claim brought under Title IX, and therefore, fails to state a claim upon which relief can be granted. In response, Plaintiffs argue the Complaint pleads sufficient facts to support their theory that the OIA is an indirect recipient of federal funding, and also sets forth the alternative theories that the OIA is subject to Title IX liability as a sub-unit of a directly funded institution, i.e., the DOE; and as the controlling authority over a federally funded program.

         DISCUSSION

         Title IX provides in pertinent part 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.” 20 U.S.C. § 1681. The definition of a “program or activity” under Title IX is broad, and encompasses the operations of, inter alia: a “department, agency, special purpose district, or other instrumentality of a State or of a local government”; a local educational agency; an “entire corporation, partnership, or other private organization, or an entire sole proprietorship”; and any other entity that is established by two or more of the foregoing entities. 20 U.S.C. § 1687. Thus, for an entity to be liable under Title IX, it must be both a “program or activity” as defined under § 1687, and a recipient of “Federal financial assistance.” See § 1681.

         The Ninth Circuit has stated that receipt of “federal financial assistance can be direct or indirect.” Sharer v. Oregon, 581 F.3d 1176, 1181 (9th Cir. 2009) (alterations, citation, and quotation marks omitted).[3] However, an entity that “merely benefits from federal funding” is not a recipient of federal funds. See Nat'l Coll. Athletic Ass'n v. Smith, 525 U.S. 459, 468 (1999) (emphasis added). In Smith, the United States Supreme Court reviewed the narrow question of whether the National Collegiate Athletic Association (“NCAA”), which received dues from recipients of federal funds, is for the same reason, a recipient itself. Id. at 469.[4] After revisiting its prior decisions in Grove City College v. Bell, 465 U.S. 555 (1984), [5] and United States Department of Transportation v. Paralyzed Veterans of America, 477 U.S. 597 (1986), [6] the Supreme Court distilled the following rule: “Entities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically from federal assistance are not.” Smith, 525 U.S. at 468. Applying this rule to the facts in Smith, the Supreme Court held that Smith's complaint did not state a claim against the NCAA under Title IX because she had not alleged that the NCAA members' dues were “earmarked for this purpose, ” and at most, the “receipt of dues demonstrates that [the NCAA] indirectly benefits” from federal assistance. Id.

         The OIA cites predominantly to Smith in support of its argument that the OIA is neither a direct nor indirect beneficiary of federal funds since Plaintiffs have not alleged that any federal funds were “earmarked” for the purpose of the OIA, therefore the OIA is not liable under Title IX. The OIA also points to portions of paragraphs 13, 14, and 16 of the Complaint, arguing that none of these allegations support the reasonable inference that the OIA is either a direct or indirect recipient of federal funds, and merely recite the elements of a cause of action.

         Here, the Complaint alleges: that the DOE “receives federal financial assistance and is subject to the anti-discrimination provisions of Title IX”; [Complaint at ¶ 13;] that the “OIA has controlling authority over . . . the DOE's interscholastic athletic programs, including competitive facilities; scheduling of seasons, games, and tournaments; travel; publicity and promotion; and budget”; [id. at ¶ 16] that the OIA indirectly receives federal financial assistance; [id.;] that the OIA “acts under the control of and in close coordination with the DOE . . . [and] makes decisions concerning interscholastic athletics” at Campbell; [id. at ΒΆ 5;] and finally, that the Executive ...


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