The Sixth Circuit recently issued an opinion in Chisholm v St. Mary’s City School District Board of Education, addressing Title IX prohibitions within the football setting as well as an intentional infliction of emotional distress claim.  Plaintiffs claimed that the coach harassed them by using the term “pussy” with the intent to insult them in front of their teammates.  They also named the School Board, Superintendent, and Athletic Director as defendants for failing to address the coach’s well-known conduct.

The coach himself had a history of “using unacceptable obscene language” as early as 1995, which the District had knowledge of in the late 1990s and for which the District had reprimanded him in writing.  Thereafter, while coaching at a different district for three years, the coach was investigated by the Ohio Department of Education (“ODE”) for his behavior.  Following that investigation, the District re-hired him after a couple winless seasons, with the condition that the Superintendent and Athletic Director closely monitor his behavior.  As the 2014 season kicked off, a player’s parent contacted the Athletic Director to inquire how to make a formal complaint against the coach for repeatedly calling her son a “pussy.”  The Athletic Director responded that he did not know how the complaint process worked.  It was not until a second player’s parent hired an attorney requesting the removal of the coach and submitting a complaint to ODE that an investigation ensued.  The School Board and ODE concluded that no disciplinary action against the coach was necessary.  The one player went on to graduate, while the other transferred to a nearby high school to continue his football career. 

The threshold issue in this Title IX case was whether the coach engaged in some form of sex-based discrimination against the players when he used the term “pussy.”  The players alleged that the use of that gendered insult portrayed them as “feminine” and thus less valuable in the “masculine” setting of football, revealing the coach’s favoritism of one sex over the other.  And because the coach’s repeated use of the term ultimately denied them educational benefits, his conduct violated Title IX.  Thus, the court’s analysis depended entirely on the coach’s use of the term “pussy” while in the arena of football.

The court concluded that crude or vulgar language alone does not rise to the level of a Title IX violation and that Title IX does not protect against all sex discrimination. The court noted that because the football team had no female members, there was no evidence that the coach treated male and female students differently, let alone favoring one sex over the other.  Further, considered in the context of football, the coach’s gendered comments were not used for sex stereotyping, but rather as a motivational fundamental requirement for football players – toughness.

Of course, school districts should ensure staff do not engage in abusive behavior toward students.  While context is important, each employee should clearly understand that the employee is expected to stay away from the line separating appropriate and inappropriate behavior.

The case may be accessed here.