In October, this blog discussed a new lawsuit filed against a Kentucky school district for alleged inequality in its middle school athletics rules. The parties in that case chose to waive discovery and proceed quickly to a decision on the merits on cross-motions for summary judgment. As a result, the Eastern District of Kentucky has already entered a decision on the merits and the result was not good for the school district. To the contrary, Judge Karen Caldwell issued a decision finding in favor of the student in J.S. v. Laurel County Board of Education, 2018 U.S. Dist. LEXIS 192157, 2018 WL 5892355 (E.D. Ky. Nov. 9, 2018).
In a concise decision, the Court in J.S. found that the District’s “Play Up, Stay Up” rule could not satisfy the intermediate scrutiny standard required for distinctions based on gender. Under that level of scrutiny, a government restriction which takes gender into account must be substantially related to an “exceedingly persuasive” governmental interest.
To satisfy this test, the district offered 5 justifications to explain why girl basketball players had the freedom to play at multiple grade levels under the “Play Up, Stay Up” rule and boy basketball players were not. Nevertheless, the Court found that only one was specific to the rule at issue: the allegation that the district had to treat boys and girls basketball differently in order to comply with Title IX’s anti-discrimination prohibition.
Though the Court noted that this justification was, indeed, legitimate, the rationale still was insufficient. According to the Court, the “Play Up, Stay Up” rule did was not, in reality, necessary in order to ensure that girls’ and boys’ basketball teams each existed in order to satisfy Title IX. Rather, though fewer girls than boys tried out for basketball, the Court found that there were more than enough girls to field 6th, 7th, and 8th grade teams, just as there were with boys. In other words, the Court found that the gender-based distinction applied too broadly and gave girl basketball players an option the boy basketball players did not get.
Because the rule offended intermediate scrutiny, the Court granted summary judgment in favor of the student and parent. It also ordered the district to abolish the “Play Up, Stay Up” rule or draft a new version that removed the gender-based distinction or was more narrowly tailored to achieve legitimate government interests.
It does not appear that the District will appeal the decision as it has already filed a Notice with the Court advising of its compliance with the Order. On the other hand, the parent has already filed a Motion for attorney fees. In other words, this case shows that gender-based distinctions can result in costly litigation and the risk of fee awards if they are not supported by and likely to advance important interests.