McCully v. Stephenville Independent School District et al

Filing 88

MEMORANDUM OPINION and ORDER granting in part and denying in part 17 Motion to Dismiss filed by Stephenville Independent School District... the corrected motion to dismiss filed by Stephenville ISD be, and is hereby, granted in part, and that all claims asserted by plaintiffs against Stephenville ISD except plaintiffs' equal treatment claim under Title IX of the Education Amendments of 1972 be, and are hereby, dismissed with prejudice. The court further ORDERS that the corrected mot ion to dismiss filed by Stephenville ISD be, and is hereby, denied as to the claim asserted by plaintiffs against Stephenville ISD for equal treatment under Title IX of the Education Amendments of 1972. The court further ORDERS that the motion to dismiss for lack of capacity filed by Stephenville ISD be, and is hereby, denied as moot. See Order for further specifics. (Ordered by Judge John McBryde on 1/24/2014) (krg)

IN THE UNITED STATES DISTRI
NORTHERN DISTRICT OF T
FORT WORTH DIVISION
KEVIN McCULLY, as next friend
of daughters, C. McCULLY AND
M. McCULLY

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§
§

BY---=-----

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Plaintiffs,

De.put:"

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§

vs.

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STEPHENVILLE INDEPENDENT
SCHOOL DISTRICT, ET AL.,
Defendants.

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NO. 4:13-CV-702-A

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§

MEMORANDUM OPINION
and
ORDER
The above-captioned action was initiated by the filing by
plaintiffs, C. McCully and M. McCully, appearing through their
father, Kevin McCully, as their next friend, of their complaint
against defendants, Stephenville Independent School District
("Stephenville ISD"), and William Joe Carter and Rachel Carter
{together, the "Carter defendants").

On September 23, 2013,

Stephenville ISD filed a motion to dismiss for lack of capacity
and a corrected motion to dismiss pursuant to Rule 12{b) {6) of
the Federal Rules of Civil Procedure.

On October 25, 2013,

plaintiffs filed a response to Stephenville ISD's corrected
motion to dismiss, and on November a, 2013, Stephenville ISD
filed a reply.

On September 27, 2013, the Carter defendants

filed a motion to dismiss pursuant to Rule 12(b) (6) of the
Federal Rules of Civil Procedure, which the court granted in an
order signed November 13, 2013.

In the November 13, 2013 order,

the court also granted Stephenville ISO'S motion to dismiss for
failure to sate a claim directed to Count II of the complaint and
dismissed Count II as to Stephenville ISO.

The court held in

abeyance the remaining grounds of Stephenville ISO's motion to
dismiss for failure to state a claim and Stephenville ISO's
motion to dismiss for lack of capacity. 1

Having now considered

each motion, the responsive pleadings, and applicable legal
authorities, the court concludes that the grounds of Stephenville
ISO's corrected motion to dismiss that were held in abeyance
should now be granted in part and denied in part, and that
Stephenville ISO's motion to dismiss for lack of capacity should
be denied as moot.

1

In its November 13, 2013 order, the court noted that on the date of the signing of that order, the
court had received from plaintiffs a motion for leave to file a first amended complaint. The court denied
the motion for leave in an order signed December 3, 2013. In the December 3, 2013 order, the court also
denied a second motion for leave to file an amended complaint, for failure to comply with the local rules
of this court. As plaintiffs have made no further attempts to seek leave to file an amended complaint, the
court is now proceeding with the grounds of Stephenville ISD's motion to dismiss for failure to state a
claim that were not resolved by the November 13, 2013 order.
2

I.

Allegations of the Complaint
Plaintiffs allege in their complaint that C. McCully and M.
McCully are sisters who attend Henderson Junior High in the
Stephenville Independent School District.

Plaintiffs assert that

they are or will be participating in athletics in the district
and that plaintiffs' father, Kevin McCully, began complaining to
administrators at Stephenville ISD of gender discrimination at
Henderson Junior High in early September 2012.

Kevin McCully

filed grievances with Stephenville ISD on March 8, 2013,
completing the grievance process in July 2013, and "Defendant has
made some changes," but "has backtracked on two commitments."
Comp. at 4.
Plaintiffs complain in general that the female athletes at
Henderson Junior High have fewer opportunities to participate in
sports than boys and inferior benefits when they do participate,
such as non-traditional seasons, fewer coaches, inferior coaches,
inadequate practice facilities, inferior locker rooms and other
facilities, discriminatory practice times and schedules,
inadequate publicity, different recruitment of girls, inadequate
survey of girls to determine their interests, the discriminatory
3

environment of the Quad County Conference, the discriminatory
environment of the University Interscholastic League,
stereot}~ical

assumptions about the interests and abilities of

female athletes, and allowing unequal support to the boys'
athletics through booster clubs, donations, and commercial
agreements.
II.

Legal Standards Applicable to Motion to Dismiss
Rule S(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short andplain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. S(a) (2), "in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .

(internal

Although a complaint need

not contain-detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Twombly, 550 u.s. at 555 & n.3.

Thus, while a court

must accept all of the factual allegations in the complaint as
4

true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)

See Ashcroft v. Iqbal,

("While legal conclusions can provide

the framework of a complaint, they must be supported by factual
allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim, .the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.

Id.

To

allege a plausible right to relief, the facts pleaded must
suggest liability; allegations that are merely consistent with
unlawful conduct are insufficient.
550 U.S. at 557).

Id. at 678 (citing Twombly,

"Determining whether a complaint states a

plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.;,

Iqbal, 556 U.S. at 679.

In

adjudicating defendant's motion, the court may consider the
complaint and its proper attachments.

5

III.
Application of the Law to the Facts
A.

Motion to Dismiss for Failure to State a Claim
Title IX of the Education Amendments of 1972 provides that,

subject to exceptions not applicable here, "[n]o person . . .
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(a).

To state a claim under Title

IX requires plaintiffs to allege that defendants (1) received
federal financial assistance and (2) excluded plaintiffs from
participation in defendants' educational programs because of
their sex.

Cannon v. Univ. of Chicago, 441 U.S: 677, 680 (1979).

"Alleged violations of Title IX in the area of athletics are
often divided into effective accommodation claims and equal
treatment claims."

Pederson v. Louisiana State Univ., 213 F.3d

858, 865 n.4 (5th Cir. 2000).

Effective accommodation claims

relate to the part of the Title IX regulations requiring
consideration of "[w]hether the selection of sports and levels of
competition effectively accommodate the interests and abilities
of members of both sexes•i in evaluating the availability of
6

"equal athletic opportunities for members of both sexes."
C.F.R.

§

106.41(c) (1); Pederson, 213 F.3d at 865 n.4.

34

Equal

treatment claims correspond with "the Title IX regulations found
at 34 C.F.R.

§§

106.37(c) and 106.41(c) (2)-(10), which call for

equal provision of athletic scholarships as well as equal
provision of other athletic benefits and opportunities among the
sexes."

Pederson, 213 F.3d at 865 n.4 (quoting Boucher v.

Syracuse Univ., 164 F.3d 113, 115 n. 1 (2d Cir.1999))

(internal

quotation marks omitted) .
1.

Effective Accommodation Claim

As·to their.effective accommodation claim, plaintiffs allege
that "[t]he lack of equal facilities, coaching, and services for
girls and boys sports at HJH does not effectively accommodate the
interests and abilities of members of both sexes, including the
interests

~nd ~bilities

of Plaintiffs," "[d]efendant has failed

to adequately survey girls so that the interests of the
underrepresented gender may be determined," and" [g]irls have
fewer opportunities to participate in sports than what boys enjoy
at HJH."

Compl. at 4, 9.

While the court doubts that such vague

and conclusory assertions are sufficient to state a claim for
effective accommodation, as an initial matter, the court first
7

addresses plaintiffs' standing to assert the claim.
To establish standing, plaintiffs must show that they
suffered an "injury in fact," that there exists a causal
relationship between the injury and the challenged conduct, and
that the injury will likely be "redressed by a favorable
decision."
(1992).

Lujan v. Defenders of Wildlife, 504 u.s. 555, 560-61

The Fifth Circuit Court of Appeals has held that to

demonstrate an injury in fact "to establish standing under a
Title IX effective accommodation claim, a party need only
demonstrate that she is 'able and ready' to compete for a
position on the unfielded team."

Pederson, 213 F.3d at 871.

The

court agrees with Stephenville ISD that plaintiffs fail make such
a demonstration.

Plaintiffs point to no sport or activity for

which they were "'ready and able' to compete" but which was
unavailable to them.

Indeed, plaintiffs offer no factual

allegations at all regarding the availability of any athletic
opportunities at Henderson Junior High.

Therefore, plaintiffs

have failed to establish standing to assert a claim for effective
accommodation under Title IX and such claim must be dismissed.
Further, even if plaintiffs had established standing to bring the
effective accommodation claim, plaintiffs have asserted only
8

vague, conclusory statements that are insufficient to state a
claim for effective accommodation under Title IX, and such claim
also would be dismissed for that reason.
2.

Equal Treatment Claim

In their complaint, plaintiffs assert various allegations of
inequality and disparities between the girls' athletics programs
and the boys' athletics programs at Henderson Junior High.

Title

IX requires "equal athletic opportunities for members of both
sexes," taking into consideration factors such as scheduling,
equipment, coaching, and locker rooms.
-(10).

34 C.F.R.

§

106.41(c) (2)

Although the allegations in plaintiffs' complaint are

stated in general terms, such as "discriminatory" practice
schedules, "fewer" coaches for girls, and "inferior" locker rooms
and other facilities, the attachments to plaintiffst complaint
offer more specifics.
2, 3.

Compl. at 5-6; see e;g., Compl., Ex. B. at

Therefore, contrary to Stephenville ISD's contention,

plaintiffs have provided some factual desciiption of the alleged
unequal opportunities.
Stephenville ISD also argues that plaintiffs have failed to
plead that Stephenville ISD intentionally discriminated on the
basis of gender.

To state a claim for unequal treatment under
9

Title IX, plaintiffs must allege intentional discrimination.
Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993)

See

(holding

that Title IX gender discrimination claims are properly analyzed
under the "intentional discrimination" standard in Title IV of
the Civil Rights Act of 1964); Fort v. Dallas Indep. Sch. Dist.,
No. 95-10323, 1996 WL 167072, at *3 (5th Cir. March 11, 1996)
("Therefore, to establish a claim under Title IX, the plaintiff
must establish that an educational institution receiving federal
assistance intentionally discriminated on the basis of the
plaintiff's sex.").

To demonstrate intentional discrimination,

plaintiffs must show that Stephenville ISD "intended to treat
women differently on the basis of their sex by providing them
unequal athletic opportunity."

Pederson, 213 F.3d at 882.

The court finds that the allegations in the complaint
together with plaintiffs' claims in the attachments to their
complaint are sufficient to meet the requirement for alleging
intentional discrimination.

See e.g., Compl. at 7 ("SISD has

denied girls equal athletic opportunities because of paternalism,
stereotypical assumptions about girls' interests and abilities,
and their outdated views of women."); Compl., Ex. Eat 2, 5
(claiming that the inequalities between the girls' and boys'
10

athletics programs at Henderson Junior High are due to
differences in gender between the participants) .
Finally, the court also finds that plaintiffs' claims are
not moot and are ripe for adjudication.

"A case becomes moot--

and therefore no longer a 'Case' .or 'Controversy' for purposes of
Article III--'when the issues presented are no longer 'live' or
the parties lack a legally cognizable interest in the outcome."
Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726-27 (2013)
(quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)).

"In

determining whether a matter is ripe for judicial review we
consider 'the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration.'"
Anderson v. Sch. Bd.· of Madison Cnty., 517 F.3d 292, 296 (5th
Cir. 2008) (quoting Orix Credit Alliance. Inc. v. Wolfe, 212 F.3d
891~

895 (5th Cir.2000)).

In general,

"is~ues

'further factual development is required.'"

are not ripe if

Id.

(quoting Wolfe,

212 F.3d at 895 ) .
Stephenville ISD argues that the attachments to plaintiffs'
complaint show that some changes have already been made and other
changes are still to take effect during the 2013-2014 school
year.

As Stephenville ISD points out, plaintiffs' complaint
11

concedes that "Defendant has made some changes" but "has
backtracked on·two commitments."

Compl. at 4.

However, the

complaint does not identify which changes were made and which
ones were "backtracked on."

In the complaint's attachments, the

court can discern only two statements by Stephenville ISD
committing to make any changes or reporting on any changes
already made.

Exhibit F states that the principal of Henderson

Junior High "is planning on" making changes to the practice
schedule, Compl, Ex. F at 2, but the affidavit attached to the
complaint alleges that despite the principal's stated intentions,
plaintiffs still have split practice schedules for the current
school year.

Comp., Aff. of Kevin McCully at 5.

Second;

exhibits c and F state that Stephenville ISD administrators have
ceased requiring girls to participate in multiple sports, and
notably, plaintiffs do not complain of forced· participation in
multiple sports in their complaint.
2.

Compl, Ex. C at 3, Ex. F at

Accordingly, the court finds that plaintiffs' claims are not

moot.
As to ripeness, Stephenville ISD argues that plaintiffs
cannot bring suit at this time because certain changes have yet
to be implemented, or not, during the 2013-2014 school year.
12

However, the court cannot discern from plaintiffs' complaint or
its attachments any such changes waiting to be made during the
current school year, or any "further factual development" that is
needed for there to be an actual case or controversy before the
court.

Anderson, 517 F.3d at 296.

Therefore, the court also

finds that plaintiffs' claims are ripe.
In sum, although the court does have some reservations about
whether plaintiffs have adequately pleaded a claim for unequal
treatment under Title IX of the Education Amendments of 1972, the
court finds that such claim should be allowed to proceed and
Stephenville ISD's motion to dismiss should be denied as to that
claim.
3. No Facts are Alleged that Would Support any Claim Under
the United States Constitution or State Law
Plaintiffs' complaint alleges violations of the United
States Constitution and the laws and constitution of the State of
Texas and that plaintiffs were damaged by those violations.

The

court agrees with Stephenville ISD that plaintiffs have failed to
allege any facts to support such claims.

Therefore, to whatever

extent plaintiffs have attempted to assert these claims, such
claims are being dismissed.

13

B.

Motion to Dismiss for Lack of Capacity
On the same date as the filing of its corrected motion to

dismiss, Stephenville ISD also filed a motion to dismiss for lack
of capacity, arguing that plaintiffs' next of friend, Kevin
McCully, cannot bring suit on behalf of his daughters because he
is not a licensed attorney.

However, as plaintiffs are now

represented by counsel, Stephenville ISD's motion to dismiss for
lack of capacity is moot.
IV.

Order
Therefore,
The court ORDERS that the corrected motion to dismiss filed
by Stephenville ISD be, and is hereby, granted in part, and that
all claims asserted by plaintiffs against Stephenville ISD except
plaintiffs' equal treatment claim under Title IX of the Education
Amendments of 1972 be, and are hereby, dismissed with prejudice.
The court further ORDERS that the corrected motion to
dismiss filed by Stephenville ISD be, and is hereby, denied as to
the claim asserted by plaintiffs against Stephenville ISD for
equal treatment under Title IX of the Education Amendments of
1972.
14

The court further ORDERS that the motion to dismiss for lack
of capacity filed by Stephenville ISD be, and is hereby, denied
as moot.
SIGNED January 24, 2014.

JQ
,, ited States

15