C. W. v. Smith

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

C.W. by and through his

next friend Mary Doe,

Plaintiff,

v. Case No. 1:23-cv-368-CLM

STEVE SMITH, et al.,

Defendants.

MEMORANDUM OPINION

This case is about football locker room hazing, turned assault. C.W.

alleges that, as part of a long-standing initiation ritual, older members of

the Piedmont High School football team exposed their genitals and tried

but failed to insert a key in his anus when he was a freshman member of

the team. (See Doc. 38). C.W. quit the team and left Piedmont after the

incidents and now sues his former football coach, Steve Smith (“Smith”),

and the Piedmont City School District (“District”). (See Doc. 38).

This opinion stems from both Defendants’ motions to dismiss C.W.’s

Second Amended Complaint. (Docs. 40, 41). The court previously

dismissed the federal claims in C.W.’s First Amended Complaint in part

because C.W., a male, failed to plead facts that would prove his older male

teammates tried to perform the ‘keying’ initiation ritual on him “on the

basis of sex,” as prohibited by Title IX. (Doc. 36). As the court put it:

Notably, C.W. does not plead that he was bullied because he

was male, either in his statement of facts, (doc. 26 at ¶¶ 9-

52) or in Count 1, (doc. 26 at ¶¶ 53-59). C.W. does not even

mention his sex or sexual orientation when describing

himself; rather, he focuses on his age (15-year-old freshman)

and relatively small size (130 pounds).

In short, C.W. pleads that he was bullied based on his size

and status as a freshman, not “on the basis of sex.” See 20

U.S.C. § 1681(a). So while C.W. may have claims under other

civil and criminal statutes, he has not pleaded a viable Title

IX claim because he pleads no facts that would prove that

Piedmont High players, coaches, and/or administrators were

attempting to exclude C.W. from the football team because

he was male.

(Doc. 36 at 9). The court gave C.W. the chance to amend his complaint to

correct these deficiencies, if possible. (Doc. 37).

In his Second Amended Complaint, C.W. keeps the same counts and

adds some new factual allegations. The court quotes them below, but

generally, C.W. adds that he is a heterosexual male and that the players

attempted to ‘key’ him to diminish his masculinity. He furthers adds that

the older football players only try to key younger male football players—

never female athletes—and thus keying occurs ‘on the basis of sex.’

As explained below, C.W.’s newly-bolstered factual allegations still

do not raise a reasonable inference that C.W. was harassed because he

was male. C.W. pleads that he was bullied by older players because he

was a 130-pound freshman and that Coach Smith and the District favored

and protected older established players. But pro-senior, anti-freshman

bias is not anti-male bias—i.e., the fact C.W. must prove. The court

therefore GRANTS the District’s Motion to Dismiss Count I of C.W.’s

Second Amended Complaint, (doc. 40), and GRANTS Smith’s Motion to

Dismiss Count II of C.W.’s Second Amended Complaint, (doc. 41). The

court DECLINES to exercise supplemental jurisdiction over C.W.’s two

state-law claims (Counts III-IV against Smith).

BACKGROUND

The court reuses the background section from its first Memorandum

Opinion (doc. 36 at 2-4)—adding and highlighting facts C.W. added to his

Second Amended Complaint. Because the court is reviewing a Rule 12

motion, the court assumes these facts are true. See FED. R. CIV. P. 12(b)(6);

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (at the motion-to-

dismiss stage, “the complaint is construed in the light most favorable to

the plaintiff, and all facts alleged by the plaintiff are accepted as true”).

A. Keying

C.W. says that, for many years, older Piedmont football players

would force car or truck keys into younger players’ anuses, then twist the

key—an “initiation practice” the players called “keying” that “specifically

targets young male freshm[e]n because of their sex and status as new

football players.” (See Doc. 38 at ¶¶ 15-16). “The keying ritual is exclusive

to male students, particularly males who are new to both the High School

and the football team.” (Doc. 38 at ¶ 17). While C.W. is unsure when

‘keying’ younger players started, he is sure that at least one player each

year has been keyed, and that the coaches and administrators knew about

it. (See Doc. 38 at ¶¶ 18-20).

One keying incident in 2020 led to criminal assault charges against

three students who keyed a younger player. (See Doc. 38 at ¶ 19). The

victim sued the School District and head coach Steve Smith—i.e., the

defendants here. (See Doc. 38 at ¶ 20).

B. Bullying C.W.

C.W. was 15 years old and in ninth grade when he joined the football

team in August 2022. (See Doc. 38 at ¶¶ 26-27). The hazing and bullying

started the same month. (See Doc. 38 at ¶ 28).

First, fellow football player “J.P. approached C.W. in the boy’s locker

room, took ahold of his arm, and pulled him over to T.C., who had his

pants down and was exposing himself. The goal of this interaction was to

force C.W. to look at T.C.’s private parts and call him ‘gay’ for looking to

emasculate C.W. and make him feel less like a man than J.P. and

generally to diminish his masculinity.” (Doc. 38 at ¶¶ 29-30). This incident

“made C.W. deeply uncomfortable and disturbed and would not have

occurred but for his sex, male.” (Doc. 38 at ¶ 30). “C.W. had previously

disclosed to J.P. that he was not homosexual. J.P. intentionally engaged

in this behavior to emasculate C.W. because he knew it would impact him

as a straight male.” (Doc. 38 at ¶ 31). After, “[t]he football players would

also taunt [C.W.] and made him uncomfortable by slapping his butt as

they walked by him in the locker room, and that another football player

R.P. slapped his butt in a classroom as he walked away.” (Doc. 38 at ¶ 48).

On August 19, 2022, “another football player, J.B., grabbed his chest

inappropriately, around his nipple, and twisted his hand, another

emasculating behavior.” (Doc. 38 at ¶ 21).

Finally, a few weeks later, Coach Smith told C.W. and four other

students to work out in the field house locker room while the rest of the

team watched film elsewhere. (See Doc. 38 at ¶¶ 34-35). The five students

were unsupervised in the locker room. (See Doc. 38 at ¶ 36). One of the

older students, T.H., approached C.W. and asked if he felt bullied; when

C.W. replied, “No,” T.H. advised, “Well, that is too bad.” (See Doc. 38 at ¶

37).

The four students told C.W. about the 2020 keying incident, a ritual

that “was only directed at male freshm[e]n football players.” (See Doc. 38

at ¶ 38). One of the four students then stated to C.W., ‘We are going to key

you’ with a handful of keys in his hand. (Doc. 26 at ¶ 38). C.W. responded,

‘No, I am good on that’ and “fearfully walked to another side of the locker

room.” (Doc. 38 at ¶ 39). C.W. recounts: “The involved students followed

him and were talking amongst themselves about sexual assault they

intended to subject C.W. to in an effort to scare and emasculate him due

to his sex and sexual orientation.” (Doc. 38 at ¶ 40). They then

“surrounded him, preventing him from exiting the space and took

offensive positions. K.W. was blocking the door and the student still had

his keys in hand.” (Doc. 38 at ¶ 42). “Because the students told him they

were going hold him down to ‘initiate’ him by sexually assaulting him with

keys to emasculate him, [C.W.] attempted to escape, and tackled K.W.,

who was blocking the door to get away.” (Doc. 38 at ¶ 43). “In his attempt

to remove himself from the potentially horrific situation, . . . C.W. was

beaten up by the involved students, outnumbered four to one.” (Doc. 38 at

¶ 44).

C. C.W.’s injuries

C.W. sustained minor injuries during the altercation. (Doc. 38 at ¶

45). He told two other students and his mother what happened, (see doc.

38 at ¶¶ 45-46), and C.W.’s mother filed a police report the same day, (doc.

38 at ¶ 46). The next morning, Piedmont High School Principal Adam

Clemons hosted a meeting with C.W., Coach Smith, and the four involved

students, (doc. 26 at ¶ 47).

Fellow players made fun of C.W. because, not only did he “chicken

out” of the ritual, but he also reported what occurred to staff. (Doc. 38 at

¶ 49). “For example, C.W. was called a ‘snitch’ by another member of the

football [team,] F.A., and other players followed suit, calling [C.W.]

emasculating names, such as ‘pussy.’” (Doc. 38, ¶ 49). Coach Smith acted

“as if the assault was no big deal” and insinuated C.W. was “taking it too

seriously.” (Doc. 38 at ¶ 51).

The Piedmont Police Department told C.W.’s mother that the four

students faced a six-month “observation,” and that police officers would

act if it happened again. (See Doc. 38 at ¶ 54). C.W.’s mother characterized

the outcome as “the involved students essentially receiving six months of

unsupervised probation.” (Doc. 38 at ¶ 54). Within a week, C.W.’s mother

transferred her son to Spring Garden High School, which is in a

neighboring district. (Doc. 38 at ¶ 56).

D. The Lawsuit

C.W. sued the Piedmont City School District and Coach Smith. C.W.

alleges that the District violated Title IX of the Education Amendments

Act (Count I). C.W. alleges that Coach Smith violated 42 U.S.C. § 1983 (“§

1983”) and the Fourteenth Amendment (Count II) and committed two

state common law torts (Counts III-IV). (Doc. 38 at 10-13).

STANDARD OF REVIEW

A complaint must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Rule

8 does not require “detailed factual allegations,” but does demand more

than “an unadorned, ‘the-defendant-unlawfully-harmed-me’ accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” are insufficient.

Id. Rule 12(b)(6) permits dismissal when a complaint fails to state a claim

upon which relief can be granted. FED. R. CIV. P. 12(b)(6). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.”

Iqbal, 556 U.S. at 678. A complaint states a facially plausible claim for

relief when the plaintiff pleads facts that permit a reasonable inference

that the defendant is liable for the misconduct alleged. Id.

DISCUSSION

C.W. pleads four claims: the District violated Title IX (Count I);

Coach Smith violated C.W.’s rights under 42 U.S.C. § 1983 and the

Fourteenth Amendment’s Equal Protection Clause (Count II); Coach

Smith negligently breached his duties to C.W. under state law (Count III);

and Coach Smith recklessly or wantonly breached his duties to C.W.

under state law (Count IV). The court addresses them in that order.

A. Count I, School District: Title IX

After some introductory language about Title IX, C.W. pleads the

following allegation that the District violated Title IX:

62. As alleged supra, Defendant Piedmont City School

District was on actual notice of students habit and

practice of continuously and repeatedly harassing and

sexually assaulting students. Defendant Piedmont City

School District had the authority to initiate corrective

action in response to the involved students sexual

harassment, intimidation and assault of their fellow

students or place other restrictions on involved students.

63. Defendant Piedmont City School District, through the

knowledge and inaction of Smith, acted with deliberate

indifference to their sufficient, actual notice of the

involved students sexual harassment, intimidation and

assault of fellow students.

64. As a direct and proximate result of Piedmont City School

District’s deliberate indifference, Plaintiff was assaulted

which caused personal injury and severe emotional

distress, and has been denied educational opportunities

and access. Plaintiff C.W. has been transferred out of

Piedmont High School [and] homeschooled as a result of

this incident.

(Doc. 38 at ¶¶ 62-64). In short, C.W. alleges that the District knew about

the keying ritual and did nothing about it, which allowed the attempted

keying of C.W. (i.e., the sex-based action) that resulted in C.W. being

assaulted and injured, then leaving the Piedmont school district (i.e., the

denial of educational opportunities and access).

C.W.’s allegation fails to state a claim that entitles him to relief

under Title IX because, assuming the pleaded facts are true, C.W. fails to

raise a reasonable inference that he was hazed and injured “on the basis

of sex,” as that phrase was understood when Congress passed Title IX in

1972. Rather, C.W.’s facts support a reasonable inference that the senior

players acted with anti-freshmen bias—not an anti-male bias.

1. The law: Title IX of the Education Amendments Act says: “No

person in the United States 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). By its plain language, Congress

limited Title IX’s scope to discrimination “on the basis of sex,” which the

Eleventh Circuit recently held to mean “biological sex.” See Adams by and

through Kasper v. Sch. Bd. Of St. Johns Co., 57 F.4th 791, 815 (11th Cir.

2022) (en banc). That means, to plead a viable Title IX claim, C.W. must

plead facts that would prove that the District denied C.W. an educational

opportunity or otherwise discriminated against him because he was a

biological male, rather than a biological female.

C.W. alleges that fellow male students (not the District) committed

the sex-based acts. Congress did not discuss student–on–student

harassment in Title IX. That said, the Supreme Court has held that

students can sue school boards under Title IX for actions taken by their

student peers—but only “where [school boards] are deliberately

indifferent to sexual harassment, of which they have actual knowledge,

that is so severe, pervasive, and objectively offensive that it can be said to

deprive the victims of access to the educational opportunities or benefits

provided by the school.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

650 (1999). So C.W. must prove two things: (1) C.W.’s teammates harassed

him because he was male, and (2) the harassment was so “severe,

pervasive, and objectively offensive,” id., that it deprived C.W. of his

ability to enjoy opportunities or benefits at Piedmont High School. The

court doesn’t reach the second issue because C.W. fails the first.

2. Anti-freshman bias: As he did in his previous complaint, C.W.

alleges that older football players keyed and otherwise hazed freshmen

players as acts of initiation and discipline—not sexual gratification:

15. The practice of ‘keying’ players (sexually assaulting

younger male players by forcing a car or truck key into

a player’s anus and twisting it) has been a long-standing

practice in the Piedmont High School football program.

16. The longstanding history of this sexual assault,

established a need for vigilance in “private” male locker

room spaces in which students could be isolated and

subjected to it, specifically surrounding freshman

students due to it being an “initiation” practice, that

specifically targets young male freshman because of

their sex and status as a new football player.

17. Female students in sports programs at Piedmont High

School are not subjected to sexual assault by keys by

male football players. The “keying” ritual is exclusive to

male students, particularly males who are new to both

the High School and the football team. . . .

23. More specifically, Smith knew of the practice whereby

football players would discipline their younger male

teammates by sexually assaulting them but did nothing

to stop it; thereby ratifying the practice.

24. In a conversation between Principal Adam Clemons and

one of the involved students K.W., K.W. stated the

following: “I’ve been told, if you do something wrong or

tell on someone you can get keyed which is called the

Piedmont Special. [Minor student] told me about it. I am

sure you know what happened. This was in 8th grade.

It still goes around. It is a drifting treat.”

43. Because the students told him they were going hold him

down to “initiate” him by sexually assaulting, him with

keys to emasculate him, he attempted to escape and

tackled K.W., who was blocking the door to get away.

(Doc. 38 at ¶¶ 15-17, 23-24) (highlights added). In each allegation, C.W.

limits keying and similar hazing acts to the initiation of freshmen football

players. No senior males who played football were hazed. No freshman

males who didn’t play football were hazed. No females played football, so

they were not hazed. Only freshmen joining the football team were hazed.

In fact, C.W. alleges that the older players told him that freshmen football

players were the only target when they tried to key him:

38. The four involved students then explained the 2019

incident where an upperclassman held down another

male student, and rectally sexually assaulted him with

keys. This ritual, as explained to C.W. by his

teammates, was only directed at male freshman football

players. One of the four involved students then stated

“we are going to key you” with a handful of 7 keys in his

hand. . . .

(Doc. 38, ¶ 38) (highlight added).

As C.W. pleads it, one fact question determines whether senior

football players hazed someone: Is he a freshman football player? If the

answer is no; the older players would not try to key or similarly haze

him—or her. For example, senior football players would not try to key a

freshman tuba player, whether the tuba player is male or female.

As a result, C.W.’s pleaded facts create the reasonable inference

that keying and similar acts of hazing occurred on the basis of the

student’s status as a freshman football player, not on the basis of the

student’s biological sex. C.W. thus fails to plead a plausible claim of sex

discrimination under Title IX because the older players’ actions were

“more likely explained by” anti-freshman bias and hazing that does not

violate Title IX. Iqbal, 556 U.S. at 681; see also Doe v. Samford Univ., 29

F.4th 675, 692 (11th Cir. 2022) (affirming dismissal of Title IX claims

against university because the complaint pleaded “‘more likely

explanations’ for the university’s conduct, including inexperience,

ineptitude, and sex-neutral pro-complainant bias”).

3. Anti-male bias: In his Second Amended Complaint, C.W. adds

that he is a heterosexual male and adds several allegations to tie the older

players’ actions to C.W.’s biological sex and his sexual preference. These

allegations fall into three categories.

First, C.W. matter-of-factly says that older football players keyed or

otherwise hazed C.W. and other freshmen football players “because of” or

“due to” their male sex. (Doc. 38 at ¶¶ 16, 30, 58). But these statements

are conclusory; C.W. must plead facts that raise a reasonable inference

that the older players hazed and assaulted him because he is male. See

Doe, 29 F.4th at 687-88. Merely saying that sex discrimination occurred

is not enough.

Second, C.W. alleges that the older football players did not key or

slap female athletes on the butt, thus raising the inference that the older

players acted with a pro-female, anti-male bias. See (Doc. 38 at ¶ 17, 48,

56). As C.W. puts it: “If C.W. had not been a new male football player, but

rather a female athlete on a different sports team, this incident would not

have taken place, nor the subsequent transfer out of the school.” (Doc. 38

at ¶ 56). The preceding factual allegations support C.W.’s conclusion that

senior football players would not try to key a female volleyball or softball

player, but they also support a more plausible, non-violative explanation:

Football players did not key or assault female athletes because females

don’t play football or use the football locker room and thus do not subject

themselves to football locker room initiation and discipline.1 Again, older

1 The regulations implementing Title IX explicitly permit schools to maintain “separate

toilet, locker room, and shower facilities on the basis of sex[.]” Adams, 57 F.4th at 811

football players did not key freshmen males who did not play football. So

even if you assume C.W.’s allegations are true, the male-female

distinction does not explain why senior football players key or similarly

haze freshman football players. Rather, C.W.’s “allegations permit

obvious alternative explanations that suggest lawful conduct rather than

the unlawful conduct the plaintiff would ask the court to infer”—i.e., older

football players hazing freshmen football players. Doe, 29 F.4th at 689.

Because the hazing of new football players—a sex-neutral motive—is “the

likelier, more obvious explanation” for older football players not keying or

assaulting female athletes (or male non-athletes), the football team’s

failure to haze or initiate female athletes does not raise a plausible

allegation of sex discrimination.

Third, C.W. pleads that older players performed, simulated, or

mentioned multiple sex-related acts to “emasculate” C.W. and other

freshmen football players:

29. Alongside the August 25th, 2022 assault outlined below,

J.P. approached C.W. in the boy’s locker room, took

ahold of his arm, and pulled him over to T.C., who had

his pants down and was exposing himself.

30. The goal of this interaction was to force C.W. to look at

T.C.’s private parts and call him “gay” for looking to

emasculate C.W. and make him feel like less of a man

than J.P. and generally to diminish his masculinity.

This interaction made C.W. deeply uncomfortable and

disturbed and would not have occurred but for his sex,

male.

31. C.W. had previously disclosed to J.P. that he was not

homosexual. J.P. intentionally engaged in this behavior

to emasculate C.W. because he knew it would impact

him as a straight male.

(quoting 34 C.F.R. § 106.33). So Title IX allows some differential treatment of the sexes

in sports locker rooms. See id. at 817 (separating bathrooms based on biological sex

does not violate Title IX).

32. Further, on August 19, 2022 another football player J.B.

grabbed his chest inappropriately, around his nipple

and twisted his hand, another emasculating behavior. .

. .

40. The involved students followed him and were talking

amongst themselves loudly about the sexual assault

they intended to subject C.W. to in an effort to scare and

emasculate him due to his sex and sexual orientation.

41. The boys spoke loudly about “gay sex” and how

Plaintiff C.W. should not worry because they had “gay

family members”, one of the students specifically

talking about their gay uncle.

42. As Plaintiff C.W. would not acknowledge them, the

students surrounded him, preventing him from exiting

the space and took offensive positions. K.W. was

blocking the door and the student still had his keys in

hand.

43. Because the students told him they were going hold him

down to “initiate” him by sexually assaulting, him with

keys to emasculate him, he attempted to escape and

tackled K.W., who was blocking the door to get away.

44. In his attempt to remove himself from the potentially

horrific situation, Plaintiff C.W. was beaten up by the

involved students, outnumbered four to one.

48. The football players also taunted C.W. and made him

uncomfortable by slapping his butt as they walked by

him in the locker room, and another football player R.P.

slapped his butt in a classroom as he walked away. C.W.

never saw any of the male football players slap females

on the butt and they engaged in this behavior toward

him to emasculate him because he is a heterosexual

male.

49. After the locker room incident, he was continually made

fun of in that not only did he “chicken out” of the ritual,

but also reported what occurred to staff. For example,

C.W. was called a snitch by another member of the

football player F.A., and other players followed suit

calling him emasculating names such as a “pussy”.

(Doc. 38 at ¶¶ 29-31) (highlights added). But these allegations do not raise

a plausible claim of sex discrimination under Title IX, nor do they

overcome the plausible, non-violative explanation for the older players’

actions—i.e., hazing freshmen.

Allegations that the older players acted in an offensive, sex-related

manner (e.g., slapping C.W.’s butt and twisting his nipple) do not

themselves lead to a plausible allegation that they acted out of anti-male

bias. As the Supreme Court put it when reading Title VII, “[w]hatever

evidentiary route the plaintiff chooses to follow, he or she must always

prove that the conduct at issue was not merely tinged with offensive

sexual connotations, but actually constituted ‘discrimina[tion] . . . because

of . . . sex.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81

(1998) (ellipsis in original). The Fifth Circuit has made the same point

about Title IX: “The offensive behavior . . . must still be based on sex, per

the words of [T]itle IX, and ‘not merely tinged with offensive sexual

connotations.’” Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist.,

647 F.3d 156, 165 (5th Cir. 2011). In other words, merely pleading that

older football players talk and act in a sex-related manner with younger

male teammates does not create a plausible Title IX claim, unless those

acts are connected to the differential treatment of males and females.

Congress did not cover one man teasing another man about his level

of masculinity when it wrote Title IX. As the en banc Eleventh Circuit

noted, “‘sex’ is not a stereotype” in the Title IX context. Adams, 57 F.4th

at 813. Rather, the phrase “on the basis of sex” focuses on the distinction

between the biological sexes (male and female), not sexual orientation

(e.g., heterosexual, homosexual, bisexual) or gender identity (e.g.,

transgender):

To interpret “sex” within the meaning of Title IX, we look to

the ordinary meaning of the word when it was enacted in

1972. One of the methods of determining the ordinary

meaning of a word “is by looking at dictionaries in existence

around the time of enactment.” Reputable dictionary

definitions of “sex” from the time of Title IX's enactment

show that when Congress prohibited discrimination on the

basis of “sex” in education, it meant biological sex, i.e.,

discrimination between males and females.

See id. at 812-15 (citations omitted) (highlight added). If differential

treatment of a biological male who identifies as female does not trigger

Title IX liability, then neither can differential treatment of a man because

he is ‘less masculine’ than other men.

4. The Oncale factors: That C.W. fails to plead facts that create a

plausible inference that the older players acted “on the basis of sex” under

Title IX is bolstered by reference to the factors the Supreme Court has

given to look for same-sex sexual harassment in the Title VII context:

• Was the bad actor motivated by sexual desire?

• Was the bad actor motivated by a general hostility against

other members of the same sex being in the workplace?

• Is there direct comparator evidence of how the bad actor

treated members of the opposing sexes in the workplace?

Oncale, 523 U.S. at 80-81. Using these factors, C.W. pleads no facts that

suggest biological sex was a motivating factor in the senior players’ acts

or words. First, C.W. offers no facts that would prove the senior players

sexually desired C.W. Second, C.W. offers no facts that would prove the

senior players didn’t want males on the football team. To the contrary,

every player was male, so the team would not exist without them. Third,

C.W. offers no evidence how the senior players treated freshman female

football players because no females played on the football team.

5. Contrary views: Finally, the court recognizes that its sister courts

have split on cases involving sex-related sports hazing. For example, a

Pennsylvania District Court dismissed a Title IX claim brought by a

freshman college football player who claimed that upperclassmen would

“simulate a humping action” and place their genitals in the face of

freshman “as a form of initiation into the Penn State football program.”

Humphries v. Pa. State Univ., 492 F. Supp. 3d 393 (M.D. Penn. 2020). Yet

a Tennessee District Court ruled that a jury could decide a Title IX claim

stemming from senior high school basketball players sodomizing two

freshman basketball players with pool cues. Doe v. Hamilton Cnty. Bd. of

Educ., 329 F. Supp. 3d 543 (E.D. Tenn. 2018).

Despite the Supreme Court’s warning that sex discrimination

claims cannot “merely [be] tinged with offensive sexual connotations,”

Oncale, 523 U.S. at 81, some courts have ruled that orally challenging

masculinity constitutes an act “on the basis of sex” under Title IX. For

example, after acknowledging there was “no concrete evidence that any of

the children at [a middle school] was harassing [the plaintiff] simply

because he was male,” an Indiana District Court allowed a Title IX claim

that insults such as “gay” and “faggot” could have been hurled “on the

basis of sex” “because [the plaintiff] was acting in a manner that did not

adhere to the traditional male stereotypes.” Seiwart v. Spencer-Owen

Cmty. Sch. Corp., 497 F. Supp. 2d 942 (S.D. Ind. 2007). Similarly, a

Kansas District Court allowed a Title IX claim brought by a male high

school student who was orally harassed by other male students “to

disparage his perceived lack of masculinity.” Theno v. Tonganoxie Unified

Sch. Dist. No. 464, 377 F. Supp. 2d 952 (D. Kansas 2005).2

2 While the District’s motion was pending, the United States Department of Education

cited Seiwart and Theno in a final rule that will amend the regulations implementing

Title IX to say that “[d]iscrimination on the basis of sex includes discrimination on the

basis of sex stereotypes, sex characteristics, pregnancy or related condititions, sexual

orientation, and gender identity.” Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33516

(citing Theno and Seiwart), 33886 (adding § 106.10 to define the scope of “on the basis

of sex”) (to be codified at 34 C.F.R. pt. 106). The new regulation contradicts the Circuit

Court’s recent statement that “‘sex’ is not a stereotype” under Title IX. Adams, 57 F.4th

at 813. This court defers to the Circuit Court’s reading of Title IX, not the Department’s.

See Loper Bright Enters. v. Raimondo, 603 U.S. __ (2024) (overruling Chevron U.S.A.

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)).

That courts have come out on both sides is further reason to dismiss

C.W.’s Title IX claim. Congress passed Title IX under its Spending Clause

authority. U.S. CONST. art. I, § 8, cl. 1. The Supreme Court has said that

“if Congress intends to impose a condition on the grant of federal moneys

[under its Spending Clause authority], it must do so unambiguously.”

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). That

means that local school boards can be sued only if they “had adequate

notice for the conduct at issue.” Davis, 526 U.S. at 640.

Title IX did not unambiguously prohibit same-sex acts of sports

hazing or speech that challenges masculinity in 2022. As explained, a

plain reading of the statute and the recent en banc opinion in Adams

suggests that it did not (and does not) cover cases like this. Because the

District did not have adequate notice that it could be sued by a male

football player for initiation and hazing acts taken by other male football

players—even acts that may have crossed the line from hazing to criminal

assault—the District is not subject to liability under Title IX.

Whether Title IX should be amended to equate same-sex, sexually-

offensive hazing with discrimination based on sex “should be left to

Congress—not the courts.” Adams, 57 F.4th at 791. Congress has tried

address such hazing but has failed so far. See, e.g., Report and Educate

About Campus Hazing Act, S. 744 & H.R. 2525 117 Congress (1st Session

2021). But 44 states have passed laws that target hazing. See States with

Anti-Hazing Laws, STOPHAZING.ORG (July 5, 2024), www.stophazing.

org/policy/state-laws. Alabama’s hazing statute, for example, covers acts

taken as part of an initiation onto a sports team that “recklessly or

intentionally endangers the mental or physical health of any student,”

without mentioning sex. Ala. Code. § 16-1-23(1). The law requires that

such incidents be reported, see Ala. Code § 16-1-23(3); provides criminal

charges for those who haze or fail to report hazing, see Ala. Code § 16-1-

23(4); and provides for the forfeiture of public funds and awards to any

person or organization involved, see Ala. Code § 16-1-23(5).

That Congress and State legislatures saw the need to fill a gap in

Title IX and other laws to cover cases like this further shows that the facts

C.W. pleads do not raise a plausible claim that the senior players acted

“on the basis of sex,” as that phrase was understood when Congress

passed Title IX in 1972. It is not this court’s role to fill that gap.

—

To sum up, C.W. pleads that the older football players’ act of keying

(doc. 38 at ¶ 38) was “exclusive to male students, particularly males who

are new to both the High School and the football team” and “was only

directed at male freshman football players,” (doc. 38 at ¶ 17). These facts,

plus the rest of C.W.’s pleaded facts, create the reasonable inference that

the older football players acted based on C.W.’s status as a freshman

football player, not C.W.’s biological sex. Because the older players’

actions were more likely explained by anti-freshman bias, not anti-male

bias, C.W. fails to plead a plausible claim of sex discrimination under Title

IX. Doe, 29 F.4th at 692 (affirming dismissal of Title IX claims against

university because the complaint pleaded “‘more likely explanations’ for

the university’s conduct, including inexperience, ineptitude, and sex-

neutral pro-complainant bias”). The court will thus GRANT the District’s

Motion to Dismiss Count I against it.

B. Count II, Coach Smith: § 1983

This is the entirety of Count II, in which C.W. pleads a § 1983 claim

against Coach Smith:

65. Paragraphs 1 through 58 are incorporated herein as if

set out in full.

66. Defendant Smith, individually and with final decision-

making authority on behalf of the Piedmont City School

District, violated Plaintiff’s rights under 42 U.S.C.

§1983 and his FOURTEENTH AMENDMENT EQUAL

PROTECTION rights by failing to protect his from

harassment, intimidation and sexual assault as

Plaintiff was left alone and unprotected when he had

actual notice of prior harassment via the ‘keying’

practice.

67. Defendant Smith acting or purporting to act under color

of state law, intentionally and purposefully

discriminated against Plaintiff depriving his of the

rights guaranteed his by the EQUAL PROTECTION

rights found in the FOURTEENTH AMENDMENT to

the U.S. CONSTITUTION, and his rights under 42

U.S.C. § 1983.

68. Defendant Smith’s actions violated Plaintiff’s clearly-

established legal rights and were performed with malice

and/or done with reckless disregard to the Plaintiff’s

federally protected civil rights.

69. As a proximate consequence thereof, Plaintiff has been

damaged as he has been caused to suffer physical

injury, severe emotional distress, embarrassment,

humiliation, anxiety, and concern.

70. Plaintiff is entitled to an award of compensatory and

punitive damages against Defendant Smith in his

individual capacities; that Defendant Smith actions

were willful, wanton, and/or reckless or otherwise

improper and egregious to a degree that it would require

or otherwise substantiate the allowance of actual

compensatory and punitive damages in an amount to be

determined by the jury against Defendants.

(Doc. 38 at ¶¶ 65-70). The court quotes Count II in full because C.W. did

not correct the deficiencies the court noted when dismissing the first

iteration of this claim. So the court largely re-uses its previous analysis,

starting with the governing law.

1. The law: Section 1983 creates liability for state employees who

deprive others of their Constitutional rights or other federal rights:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. C.W. alleges that Smith is liable to C.W. because Smith

“violated Plaintiff’s rights under 42 U.S.C. §1983 and his FOURTEENTH

AMENDMENT EQUAL PROTECTION rights by failing to protect [C.W.]

from harassment, intimidation and sexual assault as [C.W.] was left alone

and unprotected when [Smith] had actual notice of prior harassment via

the ‘keying’ practice.” (Doc. 38 at ¶ 66).

C.W. is right that § 1983 allows him to sue a public school teacher

who violates his Fourteenth Amendment “right to be free from sex

discrimination.” Hill v. Cundiff, 797 F.3d 948, 976 (11th Cir. 2015)

(citing Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273

(1979)); see also Cross v. State of Ala., State Dep’t of Mental Health &

Mental Retardation, 49 F.3d 1490, 1507 (11th Cir. 1995) (“Appellees have

a constitutional right to be free from unlawful sex discrimination and

sexual harassment in public employment.”). The Eleventh Circuit has

held that “a governmental official . . . may be held liable under section

1983 upon a showing of deliberate indifference to known sexual

harassment.” Hill, 797 F.3d at 978 (quoting Murrell v. Sch. Dist. No. 1,

Denver, Colo., 186 F.3d 1238, 1250 (10th Cir. 1999)); Williams v. Bd. of

Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1300–02 (11th Cir.

2007) (discussing government officials’ liability under section

1983 arising from “right to be free from sex discrimination”); Hartley v.

Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (applying “deliberate

indifference” standard for section 1983 deprivation of constitutional right

to be free from sexual harassment). But “[i]n order to prevail on a claim of

deliberate indifference to sexual harassment, a plaintiff must prove the

individual defendant ‘actually knew of and acquiesced in’ the

discriminatory conduct.” Hill, 797 F.3d at 978 (citing Murrell, 186 F.3d at

1250).

2. Discussion: Count II fails to state a claim that entitles C.W. to

relief for the same two reasons the court previously noted. (Doc. 36). First,

C.W. fails to allege a violation of the Equal Protection Clause. To prove

that Smith violated his equal protection right, C.W. must prove both that

(1) Smith treated other similarly situated persons better than C.W. and

(2) Smith treated C.W. worse than his comparators because of a

constitutionally protected interest like race or sex. See Jones v. Ray, 279

F.3d 944, 946-47 (11th Cir. 2001). But C.W. fails to plead what protected

interest C.W. possessed and Smith targeted. Because the rest of the

complaint alleges that C.W. was harassed on the basis of sex, the court

must assume that sex is the protected characteristic.3 But as explained in

Part A, C.W. does not plead any facts that would prove C.W. was bullied

or assaulted because he is male. See supra § A. Nor does C.W. plead facts

that would prove that Smith treated him differently (or failed to protect

C.W.) because he is male. Again, the football team is made up of males,

including the four older males who C.W. alleges Smith was protecting. If

C.W. proved that Smith protected some males to the detriment of other

males, then no factfinder could determine that ‘being male’ was the reason

Smith chose some players over others.

Second, C.W. fails to plead facts that would prove Smith knew about

or acquiesced in the bullying and attempted keying of C.W. While a

government official like a football coach “may be held liable under section

1983 upon a showing of deliberate indifference to known sexual

harassment . . . [i]n order to prevail on a claim of deliberate indifference

to sexual harassment, a plaintiff must prove the individual defendant

‘actually knew of and acquiesced in’ the discriminatory conduct.” Hill, 797

F.3d at 978 (internal citations omitted). C.W. pleads no facts that would

allow a fact finder to determine that Smith “actually knew of and

acquiesced in” the players’ treatment of C.W. C.W. pleads that Smith was

his coach only “for a short period at Piedmont High School,” (doc. 38 at ¶

13); that is, a few weeks in August 2022. C.W. does not plead that Smith

knew about the alleged bullying that preceded the attempted keying on

August 25, 2022. As for that incident, while C.W. pleads that Smith told

the players to work out in the locker room, he does not plead that Smith

3 C.W. does not plead his race.

knew or should have known the players would bully or assault C.W. while

there beyond an allegation that “Smith knew a young male student had

been sexually assaulted with keys in the locker room in 2020 when he left

some of the older football players in the locker room with newer male

players unsupervised.” (Doc. 38 at ¶ 22). C.W. pleads that he did not tell

Smith about the assault on the day it happened. (See Doc. 38 at ¶ 45).

Rather, C.W. told Smith in the principal’s office the next day, and in

response, Smith and the principal called the involved students to discuss

the incident. (Doc. 38 at ¶ 47).

As the court stated last time, while C.W. has pleaded facts that, if

true, would prove Smith was indifferent to hazing generally and

insensitive to C.W. particularly after Smith learned about the keying

incident, C.W. does not plead any facts that would prove Smith “‘actually

knew of and acquiesced in’ the discriminatory conduct.” Hill, 797 F.3d at

978. While C.W. couches Smith’s actions as deliberately indifferent, “[t]he

Supreme Court has noted the ‘deliberate indifference’ standard under §

1983 is a ‘stringent standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.’ A court

must ‘carefully test the link between the policymaker’s inadequate

decision and the particular injury alleged.’ The evidence must show the

deprivation of the constitutional right is a ‘plainly obvious consequence’ of

the municipal action.’” Id. at 977 (quoting Bd. of Cty. Comm’rs of Bryan

Cty., Okl. v. Brown, 520 U.S. 397, 410-11 (1997)). Even if you consider

Smith’s decision to leave a freshman football player unsupervised in the

locker room based on prior keying incidents, C.W. pleads no facts that

meet the “stringent standard” of proving that the assault on C.W. was “a

known or obvious consequence” or a “plainly obvious consequence” of

leaving C.W. with other players to work out unsupervised. See id.

3. Qualified immunity: Based on the court’s ruling above, the court

also finds that Smith is entitled to qualified immunity. The Eleventh

Circuit has explained qualified immunity like this:

Qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’ Pearson v.

Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S.Ct. 2727, 73 L.Ed.2d 396 (1982)). For qualified immunity

to apply, a government official must initially establish that

he was acting within his discretionary authority when the

alleged wrongful acts occurred. Melton v. Abston, 841 F.3d

1207, 1221 (11th Cir. 2016), abrogated on other grounds by

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007). ‘Once it has been determined that an

official was acting with the scope of his discretionary

authority, the burden shifts to the plaintiff to establish that

qualified immunity is inappropriate.’ Id. ‘First, the plaintiff

must show that the official’s alleged conduct violated a

constitutionally protected right.” Id. ‘Second, the plaintiff

must demonstrate that the right was clearly established at

the time of the misconduct.’ Id.

Richmond v. Badia, 47 F.4th 1172, 1179 (11th Cir. 2022).

C.W. pleads that Smith “acted under color of state authority” at all

relevant times. (Doc. 38 at ¶ 12). That means, to avoid Smith’s claim of

qualified immunity, C.W. had to plead facts that would prove both (a) that

Smith violated a constitutionally protected right and (b) that right was

clearly established when C.W. was bullied and assaulted.

As mentioned, C.W. pleads that Smith violated his “Fourteenth

Amendment Equal Protection rights by failing to protect [C.W.] from

harassment, intimidation and sexual assault as [C.W.] was left alone and

unprotected when [Smith] had actual notice of prior harassment via the

‘keying’ practice.” (Doc. 38 at ¶ 66). But, as explained, the Equal

Protection Clause does not provide a general right against harassment or

assault; it provides a right against being treated differently because of a

protected characteristics like race or sex. See Jones, 279 F.3d at 946-47.

C.W. pleads no facts that would prove such unequal protection, so he

cannot meet the first requirement of proving the violation of a

constitutionally protected right. See id. Further, even if courts extend the

Fourteenth Amendment to facts like these—i.e., protection against older

male football players hazing and assaulting their younger male

teammates—that right was not clearly established when these events

happened in August 2022.

C. Counts ITI-IV, Smith: Negligence, Recklessness, Wantonness

C.W. invoked the court’s subject matter jurisdiction by pleading the

two federal claims that the court has explained are inadequately pleaded.

See supra §§ A-B; 28 U.S.C. § 1331. C.W. pleads his other two claims

against Smith under Alabama’s common law of negligence (Count ITI) and

recklessness or wantonness (Count IV).

Section 1367(c)(3) says that the court may decline to exercise

supplemental jurisdiction over C.W.’s state-law claims if “the district

court has dismissed all claims over which it has original jurisdiction.” 28

U.S.C. § 1867(c)(8). Principles of federalism suggest that state courts

should decide matters of state law if possible. So the court will not rule on

the merits of C.W.’s state-law claims because he cannot plead a viable

federal law claim.

CONCLUSION

For these reasons, the court GRANTS the District’s Motion to

Dismiss Count I of C.W.’s Second Amended Complaint, (doc. 40), and

GRANTS Smith’s Motion to Dismiss Count II of C.W.’s Second Amended

Complaint, (doc. 41). The court DECLINES to rule on C.W.’s state-law

claims, Count III and Count IV, (doc. 38), in the absence of a federal claim.

Because the court previously gave C.W. the chance to amend his

complaint to address the deficiencies noted above, the court will dismiss

Counts I-II with prejudice. The court will enter a separate order that

carries out this ruling.

DONE and ORDERED on July 8, 2024

COREY i . MAZE :

UNITED STATES DISTRICT JUDGE

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