Legal Forum

Retaliation for Reporting Title IX Violations

Dr. Dave Dagley, Professor Emeritus, University of Alabama and

Dr. Amy Dagley, Assistant Professor, University of Alabama at Birmingham

Title IX is generally well-known in school communities because it helped to usher in girls sports, and promised equal opportunity for female students to participate in educational programs without discrimination because of their gender. Central to the enforcement provisions for Title IX is the ability of persons to report possible violations of Title IX to school authorities and for school authorities to act to assure that discrimination is not occurring. Perhaps one of the most important Title IX cases so far was an Alabama case, Jackson v. Birmingham Bd. Of Educ., 544 U.S. 167 (2005), in which the U.S. Supreme Court held that Title IX protects individuals who report discrimination from retaliation. A recent case from Kansas, Douglass v. Garden City Cmty. Coll., 543 F.Supp.3d 1043 (D.Kan. 2021), involves alleged retaliation for reporting Title IX violations, and is the subject of this commentary.

Following are the facts alleged by the plaintiff, Antonia Douglass. Douglass was a longtime volunteer for community college athletics, with many years of involvement with an endowment fund, the athletics booster club, and serving as a host mom for student athletes, especially cheerleaders. Beginning in 2017, student athletes started sharing concerns about the community college’s treatment toward female students. Of special worry were allegations that the cheerleader coach, who was male, had displayed inappropriate behavior toward female cheerleaders. Douglass encouraged persons who raised concerns to report their concerns to the community college through appropriate channels. She attempted to reach out to school administrators. She offered to take concerns to board members. She began to fear that the administration and board were not reacting to the information they were receiving.

Early in 2018, Douglass received a text message from a female cheerleader, urgently asking Douglass to come to the office of the athletic director (AD). The female cheerleader had informally reported to her throughout the school year that the coach had sexually harassed her, and that a male cheerleader had blackmailed her and demanded that she perform sexual acts with him or he would publicly release a compromising picture of her. The AD had called the female cheerleader to his office, where she was met by the AD, the cheerleader coach, and the male cheerleader. The female cheerleader was confronted and felt intimidated. She texted Douglass for help. When Douglass arrived at the AD’s outer office, she was met by the assistant AD, who kept her from entering the AD’s interior office. She thought something seemed wrong. She finally told the assistant AD to stand aside, or she would call law enforcement. She found the female cheerleader curled up in a corner chair, cowering in fear, with the AD, the coach, and the male cheerleader around her. The female cheerleader shortly left with Douglass. Douglass then encouraged the female cheerleader to tell her mother about the cheer team’s sexual harassment issues. Because she perceived that school leadership was not going to deal adequately with the issues, Douglass decided to contact the board. At an April 2018 board meeting, Douglass spoke during the community comment part of the board agenda. She stated that community college employees were submitting female athletes to unwelcome, improper sexual discrimination, and she provided letters from seven women or their parents addressing sex discrimination involving the cheer team coach. The board did not react to the proffered evidence at the time, but local newspaper stories publicized the growing scandal, and the college eventually severed ties with the coach.

Douglass soon believed that the community college leadership and the board was starting to retaliate against her for supporting potential Title IX victims. At a community event, a college employee reacted unexpectedly, shunning her. A week after the board meeting, she received from the campus police chief and a city police officer a No Trespass Notice, banning her from campus. Douglass asked the board to rescind the no trespassing order, which it refused to do at that time. However, the no trespass order was rescinded in mid-summer. In the summer, the college secured an independent investigator who produced a report in January 2019. No further actions occurred, and after a budget meeting in the summer of 2019, board members suggested that Douglass should just “move on,” despite their failure to act. Douglass sued the community college, its former president, five members of the board, and two police officers. In the summer of 2020, two board members told her that lawsuits like hers increased the college’s insurance rates and harmed the college financially. She alleged that their comments painted her as a bad person and intimidated others from associating with her or testifying for her. Douglass’ suit alleged that the college defendants retaliated against her in violation of Title IX and her free speech rights, violated her civil rights under Section 1983 (which allows a suit against defendants in their personal capacity), and two counts of conspiracy in interfering with her civil rights.

At this stage of the litigation, it is just an opening salvo. The college defendants moved to dismiss the claims, on grounds that Douglass had failed to state a claim. Under the procedural rules, the court is required to assume as true all well-pleaded factual allegations and determine whether they plausibly give rise to an entitlement of relief. In other words, the complaint must contain enough factual matter to state a claim which is plausible, not just conceivable, on its face. The court does not yet begin to analyze potential evidence that the parties might produce. The court is also required to accept well-pleaded allegations as true and is also required to view them in the light most favorable to the non-moving party. Here, the college is the moving party, because it is asking for the court to dismiss the complaint. Douglass is the non-moving party, so the allegations must be viewed in Douglass’ favor. The court denied most of the arguments that the community college had made and denied the motion to dismiss for most of the claims. Only two claims were struck down at this stage, and those were struck down because they were duplicated in other claims that had survived. Unless the court of appeals carves more of the claims out at the next stage, the case will go on to trial, mostly intact.

Without boring the reader with further technical and procedural aspects of this case so far, several gems buried in the details should be spotlighted. A threshold question is whether a volunteer is protected under Title IX from retaliation against a person who reports discrimination to the school board or administration. In Jackson v. Birmingham Bd of Educ., 544 U.S. at 180-81, the Supreme Court voted 5-4, in an opinion written by Justice Sandra Day O’Connor in 2005, that individuals who report discrimination under Title IX are protected. Mr. Jackson was a teacher and coach, thus an employee of the public school board. Ms. Douglass, the plaintiff in this case, was a long-time volunteer with multiple roles of service to the community college. The community college seemed to be arguing that only school employees and students, and not volunteers or others in the community, have that same protection. This court rejected that limitation. If higher courts accept that limitation, it should come with a reminder that the arc of history is long, but it doesn’t always go in one direction.

The case is not just about retaliation for reporting sex discrimination. The facts alleged that Douglass reached out to administrators and other employees and saw no response. On the day a cheerleader sent an urgent text, requesting her to come quickly to the AD’s office, she found the girl curled in a corner chair, surrounded by a high-ranking administrator and two of the alleged perpetrators. From that vantage point, from Douglass’ perspective, it would look like the community college had moved from being non-responsive to being actively resisting. After Douglass delivered letters from seven student-athletes or their parents to the board in a public board meeting, she did not see movement toward investigating the allegations nor dealing with them. Instead, she received a No Trespass Notice. Douglass alleged that she was publicly shunned by an employee, berated by individual board members in a public meeting, and, for a time, not permitted on campus to participate in graduation and sports-related activities. Besides retaliation, the facts alleged would also suggest success in claims for violation of free speech, association, and due process rights. Also, successful damages, including punitive damages, could be assessed against community college employees and board members in their individual capacities under Section 1983, which might have to be paid out of their own assets.

Whether or not Douglass is successful in her lawsuit, the story line of this case provides a good reminder for school leaders at all levels—K-12 schools, community colleges, and universities. School leaders and other school employees must remember that in many of these situations, they are also mandatory reporters to social service agencies when they suspect instances of child abuse. School leaders must subdue the urge to suppress bad news or reports of bad behavior from within our schools. Instead, they must meet problems head-on, follow policy, and seek a resolution that provides protection and justice for our students, and the best outcome in the long-term for our school communities.