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Black v. Metropolitan School District of New Durham Township

United States District Court, N.D. Indiana, South Bend Division

September 12, 2018

LYNNEA BLACK, Plaintiff,



         Plaintiff Lynnea Black brings this civil rights action against the Metropolitan School District of New Durham Township (the “District”) and several of its current and former employees.[1] Specifically, Black alleges that the Defendants discriminated against her based on her sex in violation of the Fourteenth Amendment and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and committed various other state law torts against her while she was a student at Westville High School, a school within the District. Defendants have moved for summary judgment.[2] In her response to their motion, Black requests that the Court dismiss all claims against all defendants, except for her Title IX claim against the District and her Fourteenth Amendment Equal Protection claim against Melissa Fleming. [DE 51 at 2] The Court will grant this request. As for the remaining two claims, for the reasons stated herein, the Court will grant in part and deny in part Defendants' motion.


         On summary judgment, the moving party bears the burden of demonstrating that there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “material” fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with respect to any material fact when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999).


         During her freshman year at Westville High School (the 2013-2014 academic calendar), Lynnea Black, who identified herself as bisexual to school officials and students, participated as a member of the school's freshman cheerleading team. At the beginning of the year, Black's cheerleading coach was Justin McSurely, but the District replaced him with Melissa Fleming in February 2014. Black had no issues with McSurely during his tenure as coach, but when Fleming took over, Black alleges that Fleming held her out of practices, performances, and team events based on her failure to conform to sex-based stereotypes.

         Black did not try out for the cheerleading team the following year. Instead, with the administration's approval, she created a school mascot and fulfilled that role by leading Westville's fans at athletic games, parades, etc. But even though Black was no longer under Fleming's supervision while serving as the school mascot, Black's interaction with Fleming continued. On more than one occasion during the 2014-2015 school year, Black alleges that Fleming berated and physically assaulted her at athletic events “because of and on the basis of sex.” [DE 52 at 18-19] Black reported some of these and other incidents to Assistant Principal and Athletic Director Brian Ton, and Ton followed up by questioning Fleming about her conduct.

         Fleming did not return to coach the cheerleading team after the 2014-2015 academic year. Meanwhile, Black continued to serve as the school mascot through her junior and senior years, completed her course of studies at Westville, and graduated. Through her mother as next friend, Black filed this lawsuit on February 17, 2016.


         After agreeing to dismiss multiple claims and named parties, Black still pursues her Fourteenth Amendment claim for sex discrimination against Fleming. She also seeks to hold the District liable for acting with deliberate indifference to her reported complaints of sex discrimination during the 2014-2015 academic year. For the following reasons, the Court will deny summary judgment with respect to Black's Fourteenth Amendment claim, but will grant summary judgment in favor of the District on Black's Title IX allegations.

         A. Fourteenth Amendment Equal Protection

         The Equal Protection clause of the Fourteenth Amendment “grants all Americans ‘the right to be free from invidious discrimination in statutory classifications and other governmental activity.'” D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 799 (7th Cir. 2015) (quoting Harris v. McRae, 448 U.S. 297, 322 (1980)). “This Amendment provides protection against discrimination on the basis of gender or sexual orientation.” Henderson v. Adams, 209 F.Supp.3d 1059, 1071 (S.D. Ind. 2016) (citing Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 576-82 (7th Cir. 2014)). Furthermore, “[s]tate actors controlling gates to opportunity … may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females.'” United States v. Virginia, 518 U.S. 515, 541-42 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982), and citing J.E.B. v. Alabama ex rel. T.B., 511 U.S., 127, 139 (1994) (equal protection principles, as applied to gender classifications, mean state actors may not rely on “overbroad” generalizations to make “judgments about people that are likely to … perpetuate historical patterns of discrimination”)); see also Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051-52 (7th Cir. 2017) (affirming preliminary injunction where plaintiff brought equal protection claim based on school bathroom policy that treated differently those students “who fail[ed] to conform to the sex-based stereotypes associated with their assigned sex at birth”).

         When a state actor violates an individual's right to be free from discrimination, a plaintiff may seek relief under 42 U.S.C. § 1983. Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir. 1996). “To state a claim for an equal protection violation based on her sex, a plaintiff must show that (1) the defendants discriminated against her based on her membership in a definable class, and (2) the defendants acted with a ‘nefarious discriminatory purpose.'” Snyder v. Smith, 7 F.Supp.3d 842, 860 (S.D. Ind. 2014) (quoting Nabozny, 92 F.3d at 453). “Discriminatory purpose … implies more than intent as volition or intent as awareness of consequences. It implies that a decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group.” Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982).

         Black has provided enough evidence to create a genuine issue of material fact as to whether Fleming singled her out for not conforming to sex-based stereotypes both while she was a member of the cheerleading team during the 2013-2014 academic year and during her tenure as the school mascot in 2014-2015. Regarding the former, according to Black, Fleming believed the cheerleaders existed for one purpose: to make the boys on the basketball team “happy.” [Black Dep. 139:10-12] Fleming repeatedly came down on Black for not being “girly” or “pretty” enough to live up to this goal. Id. at 136:2-7; 139:8-20. On one occasion, for example, Fleming suggested Black could improve her performance by letting her hair grow longer, so as not to appear so ...

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