Allen v. Escanaba Area Public SchoolsAllen v. Escanaba Area Public Schools
Case Information
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION
CHLOE ALLEN, et al.,
Plaintiffs,
Case No. 2:23-cv-200 v.
Hon. Hala Y. Jarbou ESCANABA AREA PUBLIC SCHOOLS,
et al.,
Defendants.
___________________________________/
OPINION
In this Title IX suit, Chole Allen alleges she was denied a fair opportunity to try out for her high school’s varsity team because of her sex, and that the school later retaliated against her for complaining about that disparate treatment and the bullying the male hockey players subjected her to. The school district now moves for summary judgment (ECF No. 17), arguing that the only reason Allen did not make the team is that she was not skilled enough to play hockey at the varsity level. Because neither Allen’s equal-treatment claim nor her retaliation claim succeeds, the motion is granted as to those claims. The Court also grants summary judgment on the remaining claims raised by Allen and her brother H.A. because those claims were abandoned in their opposition brief and as a result are no longer subject to legitimate factual dispute.
BACKGROUND
I. Athletics at the Escanaba Area Public Schools
Escanaba is a small city on the southern coast of Michigan’s Upper Peninsula. Defendant in this case, the Escanaba Area Public Schools, directs the education of the approximately 2,200 students who reside in the district, including the cultivation of their athletic abilities by sponsoring interscholastic teams. Escanaba Area Public Schools offer a wide range of sports for students to participate in; at the high-school level, these include mainstays such as football, baseball, basketball, and hockey.
Because Escanaba’s pool of varsity-level talent is shallow owing to its rural character, the hockey team also takes on members who attend high school in neighboring Gladstone. (Johnson Dep. 70, ECF Nos. 17-5, 23-6.) The team size has fluctuated between fifteen and nineteen players since the 2019–2020 season. (ECF No. 10 at 16–24.) [1] At the beginning of the 2022–2023 season, when Allen tried out, the final number of members selected for the team was seventeen. ( Id. at 22.) The only person cut from the team that year was Allen’s brother H.A. (H.A. Dep. 9–10, ECF No. 17-2.) [2] The school’s athletic director during that academic year, David Wilson, explained that the cut policy was attributable to the relatively small number of players on the ice (five for each side) during normal hockey play. (Wilson Dep. 13, ECF No. 17-10.) [3] The number of people who do not make the team in a given year fluctuates; in the ’23–’24 season, for instance, three players did not make the team. (Johnson Dep. 39.)
Tryouts for the hockey team are usually held in late October or early November. Andrew Johnson, who has been the hockey coach since 2021, holds a three-day tryout during that October– November window. ( Id. at 11, 30.) When prospective members cannot attend the regularly scheduled tryout because they are on the football team and the team has made it into the postseason, another tryout for those players is scheduled. ( Id. at 31–32.) According to Johnson, no makeup tryouts have been offered in the past for other reasons. ( See id. at 31.)
Two other positions are available to students who want to be part of the hockey team but are not skilled enough to play (or interested in playing): practice players and student managers. (Wilson Dep. 28–29; Johnson Dep. 38, 46.) Decisions about both positions are in the hands of the head coach. Johnson testified that his primary consideration in taking on a practice player is whether he can “mold” the player to be beneficial to the team in future seasons. (Johnson Dep. 79–80.) How many practice players the team had fluctuated by year. In the 2021–2021 season, everyone who tried out for the team appears to have been selected, and as a result the team had no practice players. ( Id. at 48–49) During the 2022–2023 season, by contrast, the team had one practice player; the following season, he was a full team member. ( Id. at 38.) The reasons students are chosen as managers are less clear, but association with team members appears to be one factor. ( Id. at 55.) The hockey team has “typically” had at least one student manager in recent years. ( Id. at 46.)
Although the hockey team is often referred to as the “boys’ hockey team” in public documents [4] and by the parties (ECF No. 23-12 ¶¶ 1–4; ECF No. 23-17 at 2), at least two girls made it onto the team in the last two decades. The first girl, who graduated in 2007, played defense (ECF No. 23-5 at PageID.391); the second girl, who graduated in 2013, played goalie (Johnson Dep. 108). As a volunteer coach, Johnson helped train the second girl. ( Id. ) Girls have played on other boys’ teams at Escanaba: the wrestling team has had between one to five girls on it for at least the last four years (Wilson Dep. 23), while one girl has played football for Escanaba schools up to the varsity team ( Id. at 12).
II. Chloe Allen’s Hockey Career Before and After 2022
Allen has played hockey since childhood. (ECF No. 24-5 at 11.) She was on a co-ed checking recreational team for at least one year before aging out (Johnson Dep. 64); she then played for girls’ teams elsewhere in Michigan (ECF No. 24-5 at 11). Some combination of school difficulties (ECF No. 23-13 at PageID.504) and COVID restrictions (Allen Dep. 26, ECF No. 23- 2) prevented Allen from being able to play hockey her junior year of high school. Allen decided to try out for the Escanaba boys’ team her senior year because rosters for other teams in the area were full and she wanted to keep her skills sharp to play hockey in college (ECF No. 23-13 at PageID.504). After Allen was cut from the Escanaba team, she played for Traverse City’s nineteen-and-under girls’ team. (Allen Dep. 23.) Since graduating high school, she has participated in club hockey teams during her freshman (Allen Dep. 21–22; Gorsuch Decl. ¶ 11, ECF No. 23-16) and sophomore years. [5]
Whether Allen was skilled enough to play on a varsity boys’ hockey team during her last year of high school is disputed. According to the school district’s expert, few girls play on boys’ varsity hockey teams in Michigan because varsity hockey is the first skill tier at which players are permitted (or encouraged) to check each other (ECF No. 23-17 at 4-5; see Pascarelli Dep. 17–18, ECF No. 23-18). Girls who join varsity teams tend to occupy the goalie position. (ECF No. 23- 17 at 3.) [6] The increasing availability of girls’ hockey teams may also depress interest. (Pascarelli Dep. 18.)
Whatever the cause of the disparity in general, Allen does not appear to have been an exceptionally talented hockey player. Allen’s coach when she played for a co-ed checking team said she was in the “lower tier” of players and would not have been a competitive player on a boys’ varsity team. (Martineau Decl. ¶¶ 8–9, ECF No. 17-7.) Her coach during her senior year when she played for a girls’ recreational team put her as the third most talented member of the team (Pascarelli Dep. 15), but by Allen’s own admission and that of her teammate Kadence Gorsuch, that team was less “competitive” and most of the players were “younger and less skilled” than the two college-bound seniors. (Pls.’ Resp. in Opp’n 12, ECF No. 23; Gorsuch Decl. ¶ 9.) Her coach at Lake Superior State University, who was in a position to assess Allen’s skills before she suffered a season-ending injury her freshman year, said Allen could not play hockey “at a high level.” (Parker Decl. ¶ 4, ECF No. 17-6.)
III. The Hockey Tryout and Its Aftermath
The broad outlines of Allen’s attempt to try out for the Escanaba varsity team are not in dispute. On October 31, 2022, Coach Johnson began holding a preannounced tryout scheduled to last three days. (Johnson Dep. 30.) Participants were expected to attend all three days. ( Id. at 67.) Allen came to the first day but left after only a few warmup drills because she was ill. ( Id. at 67– 68.) Allen testified that she vomited in the locker room (Allen Dep. 44). Allen did not attend the remaining two days of the tryout, and she introduced evidence showing she was absent from school those days ( see id. at 45; ECF No. 23-7 at 3 (Allen’s statement to school investigation); ECF No. 23-8 at 3–4 (attendance log noting Allen’s absence from school on November 1 and 2)). On the morning of November 2, the last day of tryouts, Allen emailed Johnson’s supervisor, EAPS athletic director David Wilson, to inform him why she wan unable to try out for the hockey team and request a makeup tryout. (ECF No. 23-9 at 2.) Because Allen was not in school that day, she and Wilson set up a meeting for the following day to discuss her request. What exactly happened during that meeting is contested: Wilson says he merely encouraged Allen to speak with Johnson directly (Wilson Dep. 43–44) but also says he spoke to Johnson about setting a makeup date and that he agreed ( Id. at 48).
The parties contest whether a firm date had been set for that tryout. Johnson appears to have believed that the makeup had been scheduled for Monday’s team practice. ( See Johnson Dep. 68–69.) If that was so, Allen did not get the message; she testified she could not attend practice that day because she was still sick. (Allen Dep. 46.) Allen stated during her interview in connection with the school’s internal investigation that Wilson was not at the school on Monday (ECF No. 23-7 at 3), although Wilson denied that was the case (Wilson Dep. 49). Another reason catalogued in the record is that Allen had to pick up contact lenses (ECF No. 27-3 at 3; Johnson Dep. 69), but Allen later testified that would have only made her late to practice (Allen Dep. 46).
Allen texted Johnson on Monday evening seeking to set up the tryout, apparently unaware that her presence had been expected at hockey practice that day. (ECF No. 23-13 at 2.) Allen’s text message to Johnson requesting the makeup tryout contains two other salient points. First, Allen asked whether it would be worth it for her to try out again: she worried that if she tried out and failed she would be bullied by the male hockey players. ( Id. at 3.) Allen described being excluded from hockey by boys and expressed the hope that she could be an inspiration for other girls seeking to play ice hockey at a competitive level. ( Id. ) Second, Allen said that she was willing to be a student manager on the team if she could not play on it. ( Id. at 4.)
Johnson, Wilson, and Allen met to discuss the makeup tryout the next day, November 8. During the meeting, Johnson told Allen that she “was not what he envisioned” for the hockey team (ECF No. 23-7 at 11) and refused to allow Allen to try out (Wilson Dep. 49–51). Johnson stated that he thought Allen was too small to play varsity hockey (Johnson Dep. 80) even though other members of the team, including Johnson’s son, were around as tall as Allen’s five feet and six inches ( Id. at 81–82). Johnson clarified during his deposition that “too small” referred not to height but weight and strength: his assessment was that Allen did not have the bodily resilience to be checked by a seasoned varsity player. ( Id. at 81, 83.) Johnson also pointed out that he had seen Allen play when she was on the local fourteen-and-under recreational team ( id. at 57), during preseason “open skates” at the hockey rink ( Id. at 58), and for the first ten minutes of the regularly scheduled tryouts ( id. at 65). Johnson felt these observations were sufficient to form an opinion about Allen’s hockey skills, which he rated as modest. ( Id. at 65, 79.) Johnson denied Allen’s gender had anything to do with his decision. ( Id. at 83.) [7]
Allen asked if she could be a practice player or student manager instead but was denied those opportunities too. ( Id. at 79; Allen Dep. 62.) Johnson later testified that he did not want Allen as a practice player because she would not have been a benefit to the team given her “low” skill level and her impending graduation. (Johnson Dep. 79–81.) He also said he only wanted one student manager that year to avoid having the managers “goof off” instead of minding their responsibilities. ( Id. at 78.)
Allen was upset by the blanket refusal to let her join the team. She was especially worried that a gap in her playing career during her senior year would jeopardize her chances of being able to play hockey in college. At some point after the November 8 meeting, Allen asked Wilson if she could participate in the hockey team’s “Senior Night,” during which each graduating player is celebrated for their accomplishments. (Wilson Dep. 51; Johnson Dep. 88–89.) Wilson referred the request to Johnson, who denied it on the grounds that Allen was not a member of the hockey team. (Johnson Dep. 89–90.)
On December 2, Allen’s mother Sandra, aggrieved by her daughter’s total exclusion from the hockey team and her younger son H.A. being cut, lodged a complaint of sex discrimination with the school district’s superintendent. (S. Allen Dep. 12, ECF No. 17-3.) The superintendent, Coby Fletcher, immediately hired an outside firm to investigate the complaint. (ECF No. 23-7 at 2.) Over the next month, the firm conducted interviews with Allen, her brother H.A., Wilson, Fletcher, a friend of Allen’s, and Johnson. ( Id. ) On January 17, 2024, the firm reported to EAPS’s board of education that it did not believe that any of the school district’s antidiscrimination policies had been violated. ( Id. at 13.) However, the investigation uncovered a “culture of hostility or lack of acceptance towards female hockey players” on the hockey team. ( Id. ) The firm recommended that the hockey players and coaching staff receive additional training on bullying and harassment. ( Id. ) No training specific to sex discrimination was ever administered to the players or coaching staff. (Johnson Dep. 97–98.)
Allen graduated at the end of the 2022–2023 academic year and now attends Northern Michigan University. (Allen Dep. 23.) H.A., who still attends Escanaba High School, now plays on the varsity hockey team. (H.A. Dep. 10.)
IV. Procedural History
This suit was instituted on October 24, 2023, by Allen and her mother, who was acting as
next friend for H.A. (ECF No. 1 at 1.) The complaint raised claims under Title IX of the Education
Amendments of 1972,
LEGAL STANDARD
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.”
ANALYSIS
The Court first sets out the Title IX regime that governs Allen’s core claims. Decisive among the elements of that regime is the exemption in Title IX’s implementing regulations that allows covered institutions to exclude girls and women from boys’ contact-sport teams. Because the record does not establish beyond dispute that the varsity hockey team at Escanaba High School is for boys only as a matter of policy, the Court finds that Defendant is not entitled to the benefit of the exemption at summary judgment.
Proceeding on the assumption that this antecedent issue is resolved in Allen’s favor, the Court then identifies from among the competing frameworks proposed by the parties for adjudicating Title IX suits the one most congruent to the claim of individual discrimination that Allen raises. Applying a modified version of the familiar McDonnell Douglas burden-shifting test applied in Title VII cases, the Court finds that Allen has not presented evidence sufficient to permit a finding of discrimination because the discriminatory conduct she cites was all committed by athletic staff and not the school district proper.
The Court also finds that EAPS is entitled to summary judgment on Allen’s retaliation claim. Allen never reported being bullied either to the school district’s responsible officials or to the athletic staff. And if her mother’s complaint to the school district about the denial of a tryout was a protected activity, Allen cannot point to any adverse action taken against her in response to that complaint.
The Court concludes by evaluating Allen and H.A.’s putative dismissal of a large chunk of their claims in their opposition to EAPS’s motion. The Court treats these claims as having been abandoned and that summary disposition of them is warranted. Consequently, EAPS’s motion is granted in full.
I. Title IX and the Contact-Sports Exception
A. The Title IX Regime
Congress enacted as Title IX to the Education Amendments of 1972 a wide-ranging
prohibition on sex discrimination in educational institutions receiving federal funding. Pub. L.
No. 92-318, 86 Stat. 235, 373–75 (codified as amended at
Enforcement of Title IX’s guarantee of equality between the sexes at school is entrusted in
the first instance to the Department of Education.
Two guidance documents issued by the enforcing agencies, one by HEW in 1979
[8]
and the
other by the Department of Education in 1996,
[9]
explicate what “equal athletic opportunities” are.
The standards set out in both documents uncontroversially apply to primary and secondary schools
as well
. See Horner v. Ky. High Sch. Athletic Ass’n
,
In addition to enforcement by the Department of Education, Title IX’s ban on sex
discrimination has been held to contain an implied right of action for private suits, by analogy to
the right of action found in the similarly worded prohibition on racial discrimination in Title VI of
the 1964 Civil Rights Act.
Cannon v. Univ. of Chi.
, 441 U.S. 677, 696 & n.18 (1979). The
responsibility for “defin[ing] the contours” of the Title IX implied right of action belongs to the
courts that created it.
Cf. Musick, Peeler & Garrett v. Emps. Ins. of Wausau
,
Although an implied right of action cannot be invoked to enforce implementing regulations
that prohibit conduct that the organic statute does not restrict,
see Alexander v. Sandoval
, 532 U.S.
275, 293 (2001), regulations can inform construction of what the statute does prohibit,
id.
at 284–
85. This is especially warranted for regulations enacted pursuant to express congressional
directive and of longstanding provenance.
See Loper Bright Enters. v. Raimondo
,
As alluded to earlier, a regulatory provision with a decisive influence on this case is the so-
called “contact sports exception,” which permits—but does not obligate,
see Yellow Springs
Exempted Vill. Sch. Dist. Bd. of Ed. v. Ohio High Sch. Athletic Ass’n
,
There seems to be little case law on how the sex-segregated status of a school team should
be determined. But while that question has an easy answer in most circumstances (are there both
males and females on the team?), the defendant school district here has permitted at least two
female students to try out and join its ostensibly boys-only hockey team in the past. The school
district implicitly argues that it should not be bound by its past conduct (Mot. 21), while Allen
relies on
Mercer v. Duke University
,
Allen reads
Mercer
for more than it is worth. In
Mercer
, the plaintiff not only tried out as
a walk-on football kicker but joined the team for an entire season before being kicked off for
allegedly sexist reasons.
Id.
at 644–45.
Mercer
’s precise holding is that an allegation of
discrimination by a female athlete permitted to join a contact-sport team states a valid Title IX
claim.
Mercer
does not say that the team, after it has allowed one female student athlete to join it,
must henceforth allow both sexes to try out. Further lessening the force of
Mercer
is contrary
authority stating that a member of one sex can be “excluded” from a contact-sport team for the
other sex even after being permitted to try out and placed on a team.
Williams v. Sch. Dist. of
Bethlehem, Pa.
,
While
Mercer
alone does not decide the issue, Allen may still be able to evade the contact-
sport exception if she can establish that the hockey team is integrated by sex pursuant to a settled
policy. If the school district has a policy of allowing girls to try out for all contact-sports teams
for boys, it is not implausible that it depart from ad hoc departures from that policy.
See Gordon
v. Jordan Sch. Dist.
,
On the other hand, there is also evidence that the hockey team is integrated by sex as a matter of policy. The MHSAA handbook with which the school district’s athletics program at least partially complies (Johnson Dep. 23) does not call ice hockey a boys’ sport despite designating a number of sports as girls’ sports. [12] There is testimony by the athletic director at the time of the tryout that girls have always been able to try out for the hockey team. (Wilson Dep. 20.) Wilson also testified that there was a girl on the football team, which is also listed as a boys’ sport in the school’s athletic handbook. (Wilson Dep. 12.) A final consideration is hockey coach Andrew Johnson’s strenuous denial that he excluded Allen from the team because of her sex: if the school district had a policy of not permitting girls to play hockey, then Johnson (or the district) could have validly invoked that policy to justify excluding Allen. That the school district has largely refrained from standing on this argument militates against finding that girls are allowed onto the hockey team only if they are exempted from a boys-only policy.
As matters stand, whether the contact-sports exception applies to Allen’s exclusion turns on disputed facts whose determination lies within the province of the jury. Consequently, the Court proceeds on the assumption most favorable to Allen—that the school permits both sexes to try out for any sport and that the school cannot arbitrarily depart from that policy.
II. Live Claims
Only Allen’s claims of disparate treatment under Title IX and the ELCRA (the first and fifth counts) and the attendant retaliation claim (portions of the second and sixth counts) are pending before the Court. Assessing the viability of the disparate-treatment claim is complicated by the incongruity of a claim based on individual discrimination like Allen’s with the mine run of cases involving Title IX violations by school athletics programs, which typically, and in keeping with the regulatory framework grafted onto the statute, concern an institution’s program-wide practices. Yet a slightly broader perspective reveals that Allen’s claim is a perfect fit for the burden-shifting framework for assessing discrimination in the employment context. Borrowing the McDonnell Douglas test accords with the statutory scheme, the decisions of other courts, and the principles underlying antidiscrimination law. Under McDonnell Douglas , Allen has not presented enough evidence to submit her discrimination claim to a jury. Allen does not convincingly explain why the conduct she accuses the hockey coach of can be imputed to the school district in the teeth of unambiguous precedent to the contrary.
Nor does the record substantiate Allen’s retaliation claim. No admissible evidence supports the claim that Allen reported bullying or harassment to any responsible school official, and there is no allegation that EAPS in any way retaliated against Allen after her mother’s formal complaint. In short, both of Allen’s Title IX claims fail.
A. Disparate Treatment
The parties naturally dispute which standard should apply to Plaintiff’s claims if they are not found barred by the contact-sports exception. The school district, correctly noting that the Sixth Circuit has not fixed a framework for evaluating an individual’s claim of sex discrimination in education, proposes borrowing the Title VII burden-shifting test, but then it grafts onto it, with no support, the unrelated “deliberate indifference” test applied in some Title IX contexts. Allen, by contrast, latches onto language in decisions applying the Title IX regulations to school athletics programs that states that schools must offer “equal athletic opportunities” without explaining how that framework applies to this case or addressing the obvious differences between a claim alleging schoolwide disparate treatment and disparate treatment of one person—a distinction critical to the Title IX regulations she relies on. The Court finds that the burden-shifting framework, without the school district’s gratuitous additions, is the best standard for evaluating Allen’s claim.
1. Equal Treatment
Allen does not explicate her theory of Title IX liability with any clarity. She correctly
recites the basic principle that schools must provide “equal athletic opportunity for members of
both sexes,”
While there is some room for doubt that this is the theory Allen meant to advance given
her failure to tie this inferential chain to the Title IX regulations, what Allen describes as a claim
founded on disparate treatment claim is coextensive with what is more commonly known as an
“equal treatment” claim.
See, e.g.
,
Pederson v. La. State Univ.
,
Allen’s construal of the equal-treatment standard is incompatible with the regulations upon which it is founded because she ignores the critical fact that the Title IX regulations only require that athletic opportunities for both sexes as a class be made available by the funding recipient. The regulations do not set out a framework for evaluating individual claims of sex discrimination and are not intended to identify or remedy that discrimination. In its 1979 policy interpretation, HEW explicitly stated that the purpose of the policy was to ensure that “women athletes, as a class, are receiving opportunities and benefits equal to those of male athletes” and that ensuring equal treatment for women as a class would avoid entangling it in an effort to “force universities to offer identical programs to men and women.” Title IX and Intercollegiate Athletics, 44 Fed. Reg. at 71421.
Additional evidence of this point is furnished by the regulatory preamble to the recent
amendments to the Title IX regulations, which explains their class-wide orientation in detail. The
preamble notes that the Department of Education’s longstanding interpretation of the statute has
been that it allows excluding an individual student from a sex-segregated team “on the basis of
their sex, even when doing so may impose on them more than de minimis harm, as long as students,
regardless of sex, have an equal opportunity to access the recipient’s athletic program as a whole.”
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal
Financial Assistance, 89 Fed. Reg. 33474, 33817 (Apr. 29, 2024). The same rationale underpins
the Department of Education’s reading Title IX to mandate that equal athletic opportunities be
afforded “at a program-wide level, rather than at an individual[ ]level.”
Id.
This eminently
sensible reading of
Failing to attend to the program-wide orientation of the Title IX regulatory framework
leads Allen down a mire of confusion. To begin, nowhere in her opposition does she attempt to
show how excluding her from trying out for the hockey team resulted in a sport- or program-wide
disparity in the treatment EAPS affords to male and female athletes. Nor could she, since the
equal-treatment factors listed in
That is confirmed by numerous cases entertaining equal-treatment claims. For instance, in
McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck
, the disparity at issue was seasonal
scheduling that prevented two high-school girls’ soccer teams from competing in statewide
championships.
In fact, none of the cases Allen does cite supports her interpretation of Title IX. Allen
relies on
Communities for Equity
,
Allen then invokes
T.W. ex rel. Clemons v. Shelby Cnty. Bd. of Educ.
,
So far from bolstering Allen’s argument, then, Clemons undermines it. Allen too fails to show that any EAPS policy “negatively impacted girls’ athletic opportunities overall.” In fact, Allen’s claim is even weaker than that of the Clemons plaintiff because she cannot point to a facially sex-based classification that is responsible for her exclusion from the team. Her allegations instead refer to decisions made with her, and her alone, in mind. The logic of her position requires her to deny that the school district discriminates against girls in general, because only on that basis can she point to the disparity between her exclusion from the hockey tryouts and the permission previously given to two other girls to try out (and join the team) (Resp. 18). This is only the clearest illustration of why a framework designed to determine if a school or university’s entire athletics program is giving student-athletes of one sex as a class equal athletic opportunities is a poor lens through which to assess the treatment of a single individual.
Finally,
Brooks v. State College Area School District
,
Allen’s claim resembles the one in Brooks because it is about access to sports opportunities rather than ensuring those opportunities are equally robust. But Allen, unlike the Brooks plaintiffs, seeks access to an existing sport that only she (according to the substantiated facts in the record) among the school’s girls was interested in playing. Neither Title IX’s implementing regulations nor HEW and the Department of Education’s interpretations of those regulations characterize denying one girl the opportunity to play a sport as a failure to effectively accommodate the athletic interests of the entire female student body of an educational institution. Just as with Communities for Equity and Clemons , Brooks does not support Allen’s allegations of individualized rather than class-wide discrimination. The Court now turns to the school district’s proposed framework to determine if it fares any better.
2. Deliberate Indifference Although EAPS argues that Allen’s claim should be assessed according to Title VII’s burden-shifting framework, it confusingly attempts to infuse a requirement that an educational institution subject to Title IX be deliberately indifferent to a violation before liability will lie. There is no support for the school district’s novel approach.
First, contrary to the school district’s protests in its reply brief, Sixth Circuit authority has
strongly suggested that the deliberate-indifference standard is limited to allegations of Title IX
violations premised on sexual harassment. In
Doe v. Miami University
,
The more fundamental problem with the school district’s position is that it is taken to resolve a difficulty that does not exist. The school district argues that without the imposition of a deliberate-indifference requirement, educational institutions could be held liable for negligent or even “reckless” supervision of their employees, when liability under Title IX requires that the institution itself has acted improperly. (Mot. 24.) It goes on to argue that it would be illogical to require victims of sexual harassment to demonstrate deliberate indifference while not requiring the same of those alleging mere disparate treatment.
It is black-letter law that obligations incurred by state and local governments by virtue of
their accepting federal money run only as to them,
Pennhurst State Sch. & Hosp. v. Halderman
,
There is admittedly some force to the argument that in an atypical Title IX case like this one, which involves alleged discrimination against a student by a school employee in contravention of apparent school policy, requiring a showing of deliberate indifference makes sense. After all, it might be said, this situation involves a decision not by the responsible officials of the school district itself but by a mere employee, and barring a girl from trying out for a team she is eligible to be on is not conduct that is likely to be visible to those officials.
But all this can be true without necessitating the awkward combination of tests that EAPS recommends adopting here. The solution to the difficulty the school district raises is to use the McDonnell Douglas framework to evaluate the conduct of the school district’s responsible officials rather than its employees. The Court proceeds to apply the unadulterated test.
3.
McDonnell Douglas
Burden-Shifting
When confronted with Title IX claims that do not fit within the contours of the regulatory
regime, courts have often sought guidance from the tests developed for evaluating cases arising
under Title VII of the Civil Rights Act of 1964,
The burden-shifting framework has three phases. The plaintiff must first establish a prima
facie claim of discrimination. The elements of that claim, stated generically, are membership in a
protected class, denial of an advantage or imposition of a detriment, and disparate treatment of
similarly situated persons who do not belong to the protected class.
Sutherland v. Mich. Dep’t of
Treasury
,
Considered in light of this framework, Allen has not presented enough evidence that she was treated unequally by the school district to survive summary judgment. Allen does not even make out a prima facie case of discrimination, because the decision she complains about—not being permitted to try out—was made not by Defendant but by an employee with no policymaking authority. It is elementary that educational institutions can only be held liable for their own conduct under Title IX’s private right of action. Here, Allen does not make the slightest effort to explain how Johnson’s decisions can be imputed to the school district without imposing the vicarious liability that the cases categorically foreclose. It is perhaps symptomatic that Allen’s opposition brief repeatedly attributes to the school district actions that she says Johnson did just before. In one blatantly contradictory passage she notes that “Johnson told Chloe there was no point in her trying out” (Resp. 21) and then in the very next paragraph says that “EAPS didn’t ultimately even allow Chloe to prove herself at tryouts before rejecting her.” (Resp. 22.) If that is not vicarious liability, then nothing is.
By contrast, Allen can point to no action taken by the school district that comes close to suggesting a discriminatory motive. When Allen’s mother complained to superintendent Coby Fletcher about Allen’s and H.A.’s tryout travails, he ordered an investigation by an outside law firm the very same day. A thorough investigation by the firm, which included interviews with all the individuals involved, revealed no grounds for finding that Johnson had violated any of the school district’s policies. (ECF No. 23-7 at 11–13.) The school informed Allen and her family of this conclusion in mid-January, approximately six weeks after the investigation was launched. (ECF No. 17-14.) Not one of these decisions can credibly be described as adverse to Allen. Nor does Allen present evidence of the school district handling complaints about discrimination differently by boys any differently, let alone more favorably.
Even if the school district is taken to have endorsed Johnson’s decision, it has presented a bevy of nondiscriminatory justifications for refusing to let Allen try out. The first and most persuasive is that Allen was permitted to try out: there is no dispute that Allen showed up on the first day of tryouts and was permitted to participate in the opening drills. (Resp. 5.) If Allen had not fallen ill, there is no reason to think Johnson or the school district would have prevented her from participating in all three days of the tryout. Certainly Allen has not presented any evidence to that effect. Equally persuasive is the fact that Allen does not appear to have been a skilled enough player to join a varsity hockey team, as attested to by both her former hockey coaches and Johnson himself. (Mot. 27; Reply 13.) The school district legitimately relied on its hockey coach’s assessment of Allen’s skills from his observations of her playing when she was on an under- fourteen team, at open skates in the preseason, and during the ten minutes she spent at the initial tryout. It was under no obligation to give Allen special treatment by letting her try out again. Moreover, Johnson was entitled to infer from Allen’s handling of the entire tryout process that she lacked other qualities that successful athletes possess, such as resilience, discipline, and self- motivation. Leaving in the middle of tryouts without saying anything and then failing to coordinate a makeup date until after the next practice are both acts that are not likely to demonstrate athletic promise to a coach. ( See Johnson Dep. 61.) Again, the school district was on solid grounds for not second-guessing the evaluation of the employee in the best position to know.
Finally, none of Johnson’s reasons can be described as pretextual. [14] Allen relies on Wilson’s statement to the school district’s internal investigators that he “surmised” that Johnson wanted to “avoid turmoil on the team” (ECF No. 23-7 at 5.) to prove that Johnson’s real motivation for excluding her was acquiescence in the exclusionary mindset of the hockey players. (Resp. 23, 28.) But Allen does not prove that Johnson knew anything about the turmoil her presence on the team allegedly threatened to cause. Johnson testified to the exact opposite. (Johnson Dep. 99– 100.) Allen’s argument that she told Johnson about the bullying in her text message to him (Resp. 24, 27) is belied by her testimony that she neither was bullied by the male hockey players nor reported being bullied to anyone at the school. (Allen Dep. 63–65.) Not only that, Allen does not even attempt to debunk Johnson’s rationale based on her missing two scheduled tryouts not to offer her a third. Johnson expressly stated that Allen’s membership on the team was “an open question” before she failed to show up for what he thought was her makeup tryout. (Johnson Dep. 69.) Allen, by contrast, introduced no evidence that Johnson knew she could not attend the second tryout because she was sick. (Allen Dep. 46.) By all indications, Johnson believed Allen had missed two tryouts and concluded that she did not deserve a spot on the team. Allen’s characterization of this justification as pretextual is unpersuasive. In sum, Allen’s core Title IX claim fails at every step.
The same reasons that preclude finding that the school district violated Title IX by not
allowing her to try out sink her ancillary claims based on Johnson’s rejection of Allen’s request to
join the team as a practice player or student manager. Allen introduced no evidence that the school
district had any role in excluding her from those roles or that it was obliged to allow her to be
considered for them once her exclusion came to the school district’s attention. Assuming
Johnson’s conduct was adopted by the school district, Allen failed to rebut his testimony that a
high-school senior would be of no value to the team as a practice player, a position that is intended
for those the coach hopes to develop into varsity-caliber athletes for future seasons. (
See
Johnson
Dep. 79–80.) As to the student-manager position, the three cases Allen relies on (Resp. 21 n.20)
do not support her claim: they either reserve judgment on whether Title IX mirrors whatever
protections Title VII confers for those applying to administrative positions,
see Summa v. Hofstra
Univ.
,
With none of the facts underpinning Allen’s Title IX claim being in genuine dispute, the Court concludes that the Escanaba Area Public Schools did not violate against Allen and for that reason that the school district is entitled to summary judgment. This conclusion entails that summary judgment is also granted on Allen’s parallel state-law claim under the Elliot-Larsen Civil Rights Act.
B. Retaliation
Retaliation against those who complain of sex discrimination is itself a form of sex
discrimination violative of Title IX.
Jackson v. Birmingham Bd. of Educ.
,
Here too Allen’s claim fails primarily because the conduct she complains about— “withdr[awal]” of her makeup tryout after sending a text message to Coach Johnson and her exclusion from a celebration of seniors on the hockey team—was undertaken by Johnson, not the school district. Allen presents no evidence that the school district’s responsible officials were involved in those decisions. Nor could she, since nothing in the record indicates that the school district even knew about those actions before Sandra Allen’s complaint to the superintendent in December 2022.
Assuming Johnson’s conduct can be ascribed to the school district, Allen still fails to make out a prima facie case because she cannot point to any materially adverse action taken against her. As discussed in connection with Allen’s equal-treatment claim, Allen explicitly testified that her message to Johnson about the hurtful treatment she has experienced from boys in the past was not connected to any bullying at Escanaba High School. Thus, that message does not constitute protected conduct, and any action taken as a result of it was not “adverse” in the Title IX sense. As for refusing to let Allen participate in the Eskymos’ “Senior Night,” that is not an adverse action for the simple reason that Allen cannot have had a reasonable expectation that she would be allowed to join a celebration of the graduating members of a team to which she did not belong. “Excluding” Allen from Senior Night was a mere corollary of excluding her from (the possibility of trying out for) the team. And Allen introduced no evidence that exclusion from Senior Night would have deterred a high schooler of ordinary mental mettle from engaging in protected activity. So the adverse-action element is not satisfied.
Finally, it follows from the absence of protected activity and adverse action that no possible connection between those two elements can be established. That is enough to find that Allen fails to make out her prima facie case and excuse going through the remainder of the burden-shifting test. The school district is entitled to summary judgment on Allen’s retaliation claim. III. Abandoned Claims
Having resolved all of Allen’s live claims against her, the Court must address the dismissal of some of the parties and claims named in the complaint that Allen’s opposition brief purports to accomplish. Allen represents that H.A. is no longer pursuing any of his claims and that all claims against the Escanaba Area Public School Board are also abandoned. Allen further states that she is dropping her equal-protection and due-process claims under the Constitution and the ELCRA, as well as her state FOIA claim.
Allen’s representation that she does not object to dismissal of the claims referenced in the
opposition brief can be interpreted either as an attempted withdrawal or an explicit abandonment.
Abandoning a claim implies that the nonmovant has “failed to meet [their]
Given the advanced procedural posture in this case, the Court elects to treat Allen’s claims
as abandoned instead of permitting their withdrawal through constructive amendment,
see Hells
Canyon Pres. Council v. U.S. Forest Serv.
,
EAPS’s motion for summary judgment (ECF No. 17) is GRANTED . A separate order and judgment consistent with this Opinion will issue.
Dated: May 6, 2025 /s/ Hala Y. Jarbou HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE
Notes
[1] According to the rules set out by the Michigan High School Athletic Association (MHSAA), at most 23 players are permitted on a varsity hockey team, a maximum of three of which may be goaltenders. (ECF No. 23-10 at 2.)
[2] Because H.A. is a minor, he is referred to using his initials throughout. As noted above, H.A. dropped all his claims during the pendency of this motion.
[3] Wilson is no longer the athletic director, but because he occupied that position during the period pertinent to this case he will be referred to that way throughout this Opinion.
[4] See Escanaba HS Varsity Boys Ice Hockey, Michigan High School Athletics Association, https://www.mhsaa.com/schools/escanaba/boys/varsity/ice-hockey/2025 [perma.cc/SXP6-RS53].
[5] EAPS represents that Allen failed to disclose her current coach, Ryan Thierry, as a potential declarant before
attaching his declaration as an exhibit to her opposition brief. (Def.’s Reply Br. 15–16, ECF No. 24.) Because Allen
did not contest that argument, the Court finds that Thierry’s declaration was not disclosed. In consequence, the “automatic
sanction” of exclusion is effective.
[6] Johnson pointed out during his deposition that checking the goalie is prohibited in hockey. (Johnson Dep. 15.)
[7] Johnson was goalie coach for one of the two female students who played varsity hockey for Escanaba. (Johnson Dep. 108.)
[8] Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71413 (Dec. 11, 1979).
[9] U.S. Dep’t of Educ., Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Jan. 16, 1996) [hereinafter 1996 Clarification], reprinted in U.S. Comm’n on C.R., Title IX Athletics: Accommodating Interests and Abilities 114 app. C (2010), https://www.usccr.gov/files/pubs/docs/TitleIX-2010-rev100610.pdf [perma.cc/4XZY- 22QV].
[10]
Sandoval
arguably is not controlling, notwithstanding its recognition that the regulations promulgated to interpret
Title VI of the Civil Rights Act are pertinent to enforcement of Title VI through a private right of action. After
Loper
Bright
, it can no longer be said that Congress’s imputed intent to see statutes enforced through private rights of action
implies that Congress also wants the regulations interpreting those statutes to be enforced too, as an agency’s valid
and reasonable construction is no longer “authoritative.”
Sandoval
,
[11] Escanaba Junior/Senior High School Athletic Handbook 2024–25, Escanaba Eskymos Athletics, https://escanabaareapublichighschool.bigteams.com/main/otherad?contentID=56263431 [perma.cc/37RL-RV6U].
[12] Mich. High Sch. Athletic Ass’n, Handbook for 2023–2024 School Year 25 (2023), https://www.mhsaa.com /sites/default/files/Administrators/2024%20MHSAA%20Handbook%20Final%20-%20August%20Update.pdf [perma.cc/7ARE-K5MU].
[13] As touched on briefly above, subsection (c)(1) lists as another factor for evaluating equality of athletic opportunity
whether the finding recipient “effectively accommodates the interests and abilities of members of both sexes.”
Because Allen does not set out her claim as one for effective accommodation—a framework that according to the
regulatory guidance is even more geared toward program structure than equal-treatment claims—this factor is not
discussed here.
See
Title IX and Intercollegiate Athletics,
[14] Although the record hints at nondiscriminatory but unadvanced grounds that may have led the coach to deny the tryout opportunity ( see Reply 15 & n.6; ECF No. 23-7, at 5), these are not considered here.