Parker v. Franklin County Community School Corp.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3595

A MBER P ARKER, et al.,

Plaintiffs-Appellants,

v.

F RANKLIN C OUNTY C OMMUNITY S CHOOL

C ORPORATION, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:09-cv-885-WTL-WGH—William T. Lawrence, Judge.

A RGUED M AY 31, 2011—D ECIDED JANUARY 31, 2012

Before E ASTERBROOK, Chief Judge, and W OOD and

T INDER, Circuit Judges.

T INDER, Circuit Judge. A packed gymnasium, cheer-

leaders rallying the fans, the crowd on their feet sup-

porting their team, and the pep band playing the school

song: these are all things you might expect to see at an

Indiana high school basketball game on a Friday night. The

crowd becomes part of the game; they provide motiva-

2 No. 10-3595

tion, support, and encouragement to the players. After

all, what would a spectator sport be without the specta-

tors? Unfortunately, this is a question the Franklin

County High School girls’ basketball teams must answer

every season because half their games have been

relegated to non-primetime nights (generally Monday

through Thursday) to give preference to the boys’

Friday and Saturday night games. Non-primetime games

result in a loss of audience, conflict with homework,

and foster feelings of inferiority. The question we’re

asked to decide in this appeal is whether such discrim-

inatory scheduling practices are actionable under

Title IX of the Education Amendments of 1972, 20 U.S.C.

§ 1681(a). We think the plaintiffs have presented a

genuine question of fact that such practices violate

the statute, and therefore we vacate the district court’s

entry of summary judgment in favor of the defendants

on this claim. We further vacate the district court’s dis-

missal of the plaintiffs’ equal protection claim, brought

pursuant to 42 U.S.C. § 1983, on the basis of sovereign

immunity. The defendants are “persons” within the

meaning of § 1983, and thus, subject to suit under

that statute.

I. Background

Amber Parker brought this suit on behalf of her minor

daughter J.L.P. against fourteen Indiana public school

corporations. Parker served as head coach of the girls’

varsity basketball team at Franklin County High School,

part of Defendant Franklin County Community School

No. 10-3595 3

Corp., from 2007 to 2009. J.L.P. was a member of that

team during the 2008-2009 season. After the Parker

family moved out of state, Tammy Hurley filed an

identical suit on behalf of her minor daughter C.H., who

was a current member of the Franklin’s girls’ varsity

basketball team. Hurley was eventually added as a

plaintiff in the present lawsuit; Parker remains a

plaintiff as well. The defendants in this suit include

Franklin and conference and non-conference school

districts that agreed by contract to play the Franklin

girls’ basketball team during the 2009-2010 season.

The girls’ basketball season starts two weeks before

the boys’ and during this time, the girls’ games are sched-

uled for primetime nights. Primetime is defined as eve-

nings that precede days without school. The record

reveals that at those weekend games, there “are large

crowds in attendance . . ., substantial student and com-

munity support in the stands, and the presence of the

band, cheerleaders, and dance teams.” When the boys’

basketball season starts two weeks later, the girls

are relegated to playing most of their games on week

nights. At those games, the atmosphere is dramatically

different. The girls lose the larger Friday night audience,

pep band, cheerleaders, and dance team. The bleachers

are nearly deserted; there is a lack of student and com-

munity support. The girls struggle to complete their

homework and study for tests, and the scheduling

policy affected J.L.P.’s grades during the season. J.L.P.

also attested that the defendants’ practice of placing

girls’ games disproportionately in non-primetime slots

made her feel like girls’ accomplishments are less im-

portant than boys’.

4 No. 10-3595

The plaintiffs named fourteen school defendants in

this action: six comprise the schools within the Eastern

Indiana Athletic Conference (EIAC) (Franklin County

Community School, Batesville Community School,

Sunman-Dearborn Community School (East Central),

Greensburg Community Schools, Lawrenceburg School

Community, and South Dearborn Community School);

the others are not members of that conference (Decatur

County Community Schools, Switzerland County School,

Fayette County School, Richmond Community Schools,

Jennings County School, Rush County Schools, Union

County School/College Corner Joint School District, and

Muncie Community Schools). The EIAC makes deci-

sions by majority rule and voted to enter into two- to

four-year contracts for the scheduling of games. Franklin

plays each of the conference schools twice a season, once

at home and once away. Franklin plays the non-

conference schools once a season and they alternate

annually between home and away.

During the 2009-2010 basketball season, nearly 95

percent of the Franklin boys’ varsity basketball games,

but less than 53 percent of the Franklin girls’ games, were

played in primetime. During the 2007-2009 seasons, the

disparity was 95 percent to 47 percent, respectively. In

April 2007, Parker asked Franklin Athletic Director Beth

Foster to allow the girls’ basketball team to play games

in primetime on an equal basis with the boys’ team.

Foster responded that the dates, times, and locations of

the basketball games were all governed by contracts for

either a two- or four-year period, and once defendants’

athletic directors agreed to a schedule and signed a con-

No. 10-3595 5

tract, the schools generally would maintain those same

game days and times in subsequent years.

Foster testified that she has attempted to increase

the number of girls’ basketball games played in the

primetime spots, but athletic directors in the EIAC have

refused. Foster was met with resistence from the

other school athletic directors in the EIAC when she

attempted to address gender equity. She even tried to get

double headers on Friday nights, but three of the

athletic directors wouldn’t agree. Foster testified that she

is trying hard to make it more equal. She said that she

“can’t get there because [she] can’t get anybody to

come play us on those nights,” and she can’t dictate

what night the games will be played.

II. Discussion

The defendants moved for summary judgment on

both Parker’s section 1983 equal protection claim and

Title IX claim, and Parker filed a cross-motion for sum-

mary judgment. Before the district court ruled on the

parties’ motions for summary judgment, Hurley, on

behalf of her minor daughter C.H., was added as a plain-

tiff and joined in all claims. The district court granted

the defendants’ motion for summary judgment on the

plaintiffs’ 1983 claims on the basis that the defendants

were arms of the state and thus, entitled to sovereign

immunity under the Eleventh Amendment. The court

subsequently granted the defendants’ motion for sum-

mary judgment on the plaintiffs’ Title IX claims upon

finding as a matter of law that the defendants’ treatment

6 No. 10-3595

of the plaintiffs did not result in a disparity so sub-

stantial that it denied the plaintiffs equality of athletic

opportunity.

We review the district court’s grant of summary judg-

ment de novo, construing all facts and reasonable infer-

ences in the light most favorable to the non-moving

party. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th

Cir. 2010). Summary judgment is appropriate if “the

movant shows 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). Cross-motions

for summary judgment do not waive the right to a trial;

rather, we treat the motions separately in determining

whether judgment should be entered in accordance

with Rule 56. McKinney v. Cadleway Props., Inc., 548

F.3d 496, 504 n.4 (7th Cir. 2008).

Before diving into the merits, we first address defen-

dants’ argument that Parker’s claims are moot because

her daughter is no longer a student at Franklin.

Parker’s injunctive claims are moot; however, her claims

for compensatory damages remain alive. See, e.g., Ortiz v.

Downey, 561 F.3d 664, 668 (7th Cir. 2009) (federal

prisoner claim for injunctive relief rendered moot when

he transferred prisons but his claim for damages for past

infringements of his constitutional rights remained); see

also Pederson v. La. State Univ., 213 F.3d 858, 875 (5th Cir.

2000) (Title IX claim not rendered moot by student’s

graduation where she asserted claims for monetary

damages).

No. 10-3595 7

A. Title IX Claim

Since the enactment of Title IX, there has been a huge

increase in the number of females participating in high

school athletic programs. Before its enactment, less

than 300,000 girls participated in high school athletic

programs (approximately one in twenty-seven), compared

to 3.6 million boys. See National Federation of State

High School Associations, Participation Survey Results for

1971-1972, http://www.nfhs.org/content.aspx?id=3282 (last

visited Jan. 26, 2012). Girls’ participation has increased

dramatically since 1971 and is increasing faster than

boys’; in 2009-2010, 3.2 million girls participated in sports

(more than a 50,000 increase from the previous year), and

4.5 million boys participated (less than a 35,000 increase

from the previous year). Id. The impact of Title IX on

student athletes is significant and extends long beyond

high school and college; in fact, numerous studies have

shown that the benefits of participating in team sports

can have life-long positive effects on women. See Dionne L.

Koller, Not Just One of the Boys: A Post-Feminist Critique

of Title IX’s Vision for Gender Equity in Sports, 43 Conn. L.

Rev. 401, 413 (2010) (“[S]tudies have shown that sports

participation provides important lifetime benefits to

participants” such as “discipline, teamwork, time man-

agement, and leadership that further long-term per-

sonal growth, independence and wellbeing” and “better

physical and mental health, higher self-esteem, a lower

rate of depression, and positive body image, as well as

the development of responsible social behaviors, greater

educational success, and inter-personal skills”) (quota-

tions omitted). Conversely, discriminating against female

8 No. 10-3595

athletes and creating feelings of inferiority with their

male counterparts can have long-lasting negative ef-

fects. See Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n,

178 F. Supp. 2d 805, 837-38 (W.D. Mich. 2001), aff’d, 377

F.3d 504 (6th Cir. 2004), judgment vacated on other grounds,

544 U.S. 1012 (2005), aff’d on remand, 459 F.3d 676, 695 (6th

Cir. 2006).

Title IX has gone a long way in changing society’s

view of female athletes by providing females with

the opportunity to showcase their athletic ability and

competitiveness and encouraging female participation

and interest in sports. The progress in women’s athletics

has sparked a “realization by many that women’s sports

[can] be just as exciting, competitive, and lucrative as

men’s sports.” Neal v. Bd. of Trs. of Cal. State Univs., 198

F.3d 763, 773 (9th Cir. 1999). “Title IX has enhanced,

and will continue to enhance, women’s opportunities to

enjoy the thrill of victory, the agony of defeat, and the

many tangible benefits that flow from just being given

a chance to participate in . . . athletics.” Id.

Although Title IX has gone a long way in increasing

the status and respect for female athletes, discrimination

endures. Title IX has not ended the long history of dis-

crimination against females in sport programs; many

educational institutions continue to place male sport

programs in a position of superiority. See McCormick v.

Sch. Dist. of Mamaroneck, 370 F.3d 275, 296 (2d Cir. 2004)

(“Despite substantial progress in attitudes about

women and sports, the competitive accomplishments of

male athletes may continue to be valued more than the

No. 10-3595 9

achievements of female athletes.”). This is likely due in

part because a majority of litigation under Title IX has

focused on “accommodation” claims where plaintiffs

assert that schools have failed to establish athletic pro-

grams to meet the interests and abilities of the under-

represented sex. Few cases have focused on “equal treat-

ment” claims seeking substantial equality in program

components of athletics. Title IX, however, not only

requires schools to establish athletic programs for

female athletes, but also prohibits schools from discrimi-

nating against females participating in those programs

by denying equivalence in benefits, such as equipment,

facilities, coaching, scheduling, and publicity. This only

makes sense; if schools could meet Title IX’s require-

ments by creating a sufficient number of female athletic

programs that are substantially inferior to their male

counterparts’ programs, Title XI’s enforcement scheme

would ring hollow.

The plaintiffs here have brought an equal treatment

claim for discrimination in scheduling only 53 percent of

their games on primetime nights, while scheduling

95 percent of the boys’ games on primetime nights.

Title IX prohibits discrimination on the basis of gender

by educational institutions receiving federal financial

assistance. See 20 U.S.C. § 1681(a). Subject to exceptions

not pertinent here, Title IX provides that “[n]o 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.”

Id. Congress enacted Title IX in 1972 with two principal

10 No. 10-3595

objectives in mind: “[T]o avoid the use of federal

resources to support discriminatory practices” and “to

provide individual citizens effective protection against

those practices.” Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 286 (1998) (quoting Cannon v. Univ. of Chi., 441

U.S. 677, 704 (1979)). The statute was modeled after Title

VI, which is parallel to Title IX except it prohibits race

discrimination, not sex discrimination, and applies in

all programs receiving federal funds, not only in educa-

tion programs. Id. Both statutes provide the same ad-

ministrative mechanism for terminating federal finan-

cial support for institutions engaged in prohibited dis-

crimination. See Cannon, 441 U.S. at 696. These statutes

were enacted pursuant to Congress’ spending power

and operate in the same manner, conditioning an offer

of federal funding on a promise by the recipient not to

discriminate, in what amounts essentially to a contract

between the government and the recipient of funds.

See Gebser, 524 U.S. at 286-88.

Title IX was not specifically targeted at nor does it

mention athletic programs. The issue of discrimination

against women in education-based athletic programs

was only discussed briefly in the congressional debates

on Title IX. See McCormick, 370 F.3d at 286 (citing 117

Cong. Rec. 30,407 (1971) (statement of Sen. Bayh)). After

the statute was passed, there were attempts to limit its

effects on athletic programs, see 120 Cong. Rec. 15,323

(1974) (statement of Sen. Tower), but those efforts failed

and Congress directed the Department of Health, Educa-

tion, and Welfare (HEW) to prepare proposed regula-

tions implementing Title IX, including in the area of

No. 10-3595 11

“intercollegiate athletic activities.” Education Amends.

of 1974, Pub. L. No. 93-380, § 844 (1974) (Javits Amend-

ment). The HEW published regulations that specifically

addressed the statute’s requirements in the athletic pro-

grams of educational institutions. See 34 C.F.R. § 106.41.

HEW followed notice and comment rulemaking proce-

dures, and President Ford approved the final regulations,

as required by Title IX, 20 U.S.C. § 1682, which went

into effect in 1975. See Equity in Athletics, Inc. v. Dep’t of

Educ., 639 F.3d 91, 95-96 (4th Cir. 2011); see also McCormick,

370 F.3d at 287 (detailing process). The HEW was split

into the Department of Health and Human Services

(HHS) and the Department of Education in 1979. The

HEW regulations in effect at that time were left with

HHS, and the Department of Education duplicated them.

See 45 C.F.R. pt. 86 (HHS regulations); 34 C.F.R. pt. 106

(Department of Education regulations). “All educational

functions were transferred to [the Department of Educa-

tion], and thus . . . [it is] the administrative agency charged

with administering Title IX.” McCormick, 379 F.3d at 287.

The Department of Education’s Office of Civil Rights

(OCR) is responsible for enforcement of Title IX. See

20 U.S.C. § 3441(a)(3).

The regulations provide that “[n]o person shall, on the

basis of sex, be excluded from participation in, be denied

the benefits of, be treated differently from another

person or otherwise be discriminated against in any

interscholastic, intercollegiate, club or intramural athlet-

ics.” 34 C.F.R. § 106.41(a). They state that “[a] recipient

[the school corporations here] . . . shall provide equal

athletic opportunity for members of both sexes,” and when

12 No. 10-3595

determining if equal opportunities are available the

following factors, among others, should be considered:

“(1) Whether the selection of sports and levels of competi-

tion effectively accommodate the interests and abilities

of members of both sexes” and nine other factors that

include “(3) Scheduling of games and practice time . . . .”

Id. at 106.41(c). The first factor focuses on accommoda-

tion (known as “effective accommodation” claims—34

C.F.R. § 106.41(c)(1)) and the remaining factors focus on

denial of equivalence in other athletic benefits (known

as “equal treatment” claims—34 C.F.R. § 106.41(c)(2)-(10)).

These are distinct claims. See Pederson, 213 F.3d at 865

n.4 (distinguishing between claim for lack of effective

accommodation and claim for the denial of equivalence

in other athletic benefits). “Effective accommoda-

tion claims . . . concern the opportunity to participate in

athletics, while equal treatment claims allege sex-based

differences in the schedules, equipment, coaching,

and other factors affecting participants in athletics.”

Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 965

(9th Cir. 2010).

In an effort to clarify the obligations of federal aid

recipients, the HEW issued a policy interpretation in

1979. See 44 Fed. Reg. 71,413 (Dec. 11, 1979). Although

the policy interpretation is designed specifically for

intercollegiate athletics, its general principles will often

apply to club, intramural, and interscholastic athletic

programs, which are also covered by the regulations. Id.

Both parties concede, and we do not disagree, that the

policy interpretation is entitled to deference. See Kelley v.

Bd. of Tr., 35 F.3d 265, 268 (7th Cir. 1994) (“Since the

No. 10-3595 13

Policy Interpretation maps out a reasonable approach

to measuring compliance with Title IX, this Court does not

have the authority to condemn it.”); see also McCormick,

370 F.3d at 290 and cases cited therein.1

The policy interpretation is divided into three

sections: (1) compliance in financial assistance (scholar-

ships) based on athletic ability; (2) equivalence in other

athletic benefits and opportunities (equal treatment

claims); and (3) effective accommodation of student

interest and abilities (accommodation claims). See 44

Fed. Reg. 71,414. As noted, accommodation claims focus

on expanding athletic programs to meet the interests of

the underrepresented sex. That section provides that

an institution has effectively accommodated the interests

of its male and female students if it satisfies three

benchmarks or “safe harbors.” See Kelley, 35 F.3d at 271; see

also 44 Fed. Reg. 71,418. Unfortunately, the defendants

focused their defense on the “safe harbors” and facts

showing that they have effectively accommodated the

1

The Department published the proposed policy interpreta-

tion for public comment; it considered over 700 comments

and visited eight universities before publishing the policy

interpretation in its final form. See 44 Fed. Reg. 71413. Because

the parties don’t dispute that deference is afforded to the

policy interpretation, and because it is both persuasive and

reasonable, we need not explore whether United States v.

Mead Corp., 533 U.S. 218 (2001) requires Chevron or Skidmore

deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S.

134 (1944).

14 No. 10-3595

interests and abilities of male and female athletes. These

facts are not relevant to the plaintiffs’ claim that they

didn’t receive equal treatment in the scheduling of girls’

basketball games. The defendants’ only response to

the disparity in scheduling is that it’s not substantial

enough to establish a Title IX violation.

In determining whether an institution is providing

equal treatment, the policy interpretation lists as a

factor the scheduling of games and practice times and

particularly, the time of day competitive events are sched-

uled. 44 Fed. Reg. at 71,416. The policy states:

The Department will assess compliance . . . by

comparing the availability, quality and kinds of

benefits, opportunities, and treatment afforded

members of both sexes. Institutions will be in

compliance if the compared program components

are equivalent, that is, equal or equal in effect.

Under this standard, identical benefits, opportuni-

ties, or treatment are not required, provided the

overall effect of any differences is negligible.

Id. at 71,415 (emphasis added). The policy also states: “If

comparisons of program components reveal that treat-

ment, benefits, or opportunities are not equivalent in

kind, quality or availability, a finding of compliance may

still be justified if the differences are the result of nondis-

criminatory factors.” Id. When there are “disparities

in benefits, treatment, services, or opportunities in in-

dividual segments of the program,” as in this case, the

Department will base its compliance determination on

whether such disparities are “substantial enough in and

No. 10-3595 15

of themselves to deny equality of athletic opportunity.”

Id. at 71,417. In responding to commentators who sug-

gested measuring equality of opportunity by having a

“sport specific” comparison, the Department disagreed

and noted that “a sport specific comparison could

actually create unequal opportunity.” Id. at 71,422. “[T]he

regulation frames the general compliance obligations

of recipients in terms of program-wide benefits and

opportunities”[;] “Title IX protects the individual as

a student-athlete, not as a basketball player, or swim-

mer.” Id.

Although Congress authorized an administrative en-

forcement scheme for Title IX, the Supreme Court has

recognized an implied private right of action to enforce

its ban on intentional discrimination via Section 1681.

Cannon, 441 U.S. at 717. The Court subsequently estab-

lished that monetary damages, in addition to injunctive

relief, are available in such actions. See Franklin v.

Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75-76 (1992)

(holding that monetary damages are recoverable in a

sexual harassment suit where intentional discrimination

was alleged). The Supreme Court has further stated

that claimants under Title IX need not exhaust admin-

istrative remedies before bringing suit directly in court.

See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,

247 (2009).

After Cannon, the Court held in Alexander v. Sandoval,

532 U.S. 275, 289-90 (2001), that there was no private

right of action to enforce a disparate-impact regulation

promulgated under the similarly worded Title VI. The

16 No. 10-3595

Court noted that, similar to Title IX, private individuals

may sue to enforce 42 U.S.C. § 601 and obtain both in-

junctive relief and damages, but only for intentional

discrimination. Id. at 280-81. The Court stated: “We do

not doubt that regulations applying § 601’s ban on in-

tentional discrimination are covered by the cause of

action to enforce that section. Such regulations, if valid

and reasonable, authoritatively construe the statute

itself, . . . and it is therefore meaningless to talk about a

separate cause of action to enforce the regulations apart

from the statute.” Id. at 284. This is because if

Congress “intends the statute to be enforced through

a private cause of action [it] intends the authoritative

interpretation of the statute to be so enforced as well.”

Id. The Court, however, held that there was no similar

private right of action to enforce disparate-impact reg-

ulations because § 601 prohibits only intentional dis-

crimination. Id. at 285-86, 293. The court reasoned: “It is

clear . . . that the disparate-impact regulations do not

simply apply § 601—since they indeed forbid conduct that

§ 601 permits—and therefore clear that the private right of

action to enforce § 601 does not include a private right

to enforce these regulations.” Id. at 285.

But the plaintiffs did not bring a disparate impact

claim, they brought a disparate treatment claim. They

challenge the defendants’ facially discriminatory policy

of scheduling more boys’ basketball games on primetime

nights than girls’ basketball games because of sex. See

Anderson v. Cornejo, 355 F.3d 1021, 1024 (7th Cir. 2004)

(“ ‘[I]ntent’ (and thus disparate treatment) in constitu-

tional law means doing something because of, rather

No. 10-3595 17

than in spite of (or with indifference to), the prohibited

characteristic.”); see also Cmtys. for Equity, 459 F.3d at

694 (stating that when there is a facially discriminatory

policy, the plaintiff needn’t show that the defendant

acted with discriminatory animus but only that the de-

fendant intentionally treated one group less favorably

because of their sex).2 The plaintiffs rely on the express

prohibition in § 1681(a) against intentional sex discrim-

ination and the regulations that apply § 1681(a)’s ban

on intentional discrimination; “it is therefore meaning-

less to talk about a separate cause of action to enforce

the regulations apart from the statute.” Sandoval, 532

U.S. at 284 (“A Congress that intends the statute to be

enforced through a private cause of action intends

the authoritative interpretation of the statute to be so

enforced as well.”). Thus, although Amicus Curiae Eagle

Forum contends that under Sandoval this case should

be dismissed because the regulations can’t grant a

private right of action, its focus on the regulations

misses the mark. The claim here is intentional sex dis-

crimination under § 1681(a) for which Cannon held there

is a private cause of action; the regulations merely

provide guidance in interpreting § 1681.

2

Amicus Curiae Eagle Forum Education & Legal Defense Fund

(Eagle Forum) asserts that the scheduling decisions here were

not because of sex, and rather, the schools have many possible

reasons for disparate schedules. This ignores the schools’

implicit concession that the scheduling was because of sex;

the schools have not pointed to any other reason for the dispa-

rate treatment.

18 No. 10-3595

Because Title IX was enacted as an exercise of Con-

gress’ powers under the Spending Clause, the implied

right of action for money damages exists only where

funding recipients had adequate notice that they could

be liable for the conduct at issue. Pennhurst State Sch. &

Hosp. v. Halderman, 451 U.S. 1, 17 (1981); see also Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 181-82 (2005); Gebser,

524 U.S. at 289. That is because “[w]hen Congress enacts

legislation under its spending power, that legislation is

‘in the nature of a contract: in return for federal funds,

the States agree to comply with federally imposed condi-

tions.’ ” Jackson, 544 U.S. at 181-82 (citing Pennhurst, 451

U.S. at 17). Pennhurst, however, does not preclude

private suits for intentional acts that violate the clear

terms of the statute. Id. (citing Davis v. Monroe Cnty. Bd.

of Educ., 526 U.S. 629, 642 (1999)). Recipients will have

sufficient notice where a statute makes clear that some

conditions are placed on the receipt of federal funds,

even if Congress has not specifically identified and pro-

scribed each condition in the legislation. Id. (citing

Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 665-66

(1985)).

“[F]unding recipients have been on notice that they

could be subjected to private suits for intentional sex

discrimination under Title IX since 1979, when [the

Court] decided Cannon.” Jackson, 544 U.S. at 182. The

Supreme Court has “consistently interpreted Title IX’s

private cause of action broadly to encompass diverse

forms of intentional sex discrimination.” Id. at 183 (citing

Gebser and Davis); see also id. at 175 ( “ ‘Discrimination’ is

a term that covers a wide range of intentional unequal

No. 10-3595 19

treatment; by using such a broad term, Congress gave

the statute a broad reach.”). For example, even though

the statute does not mention sexual harassment, the

Court has held that Title IX proscribes harassment with

sufficient clarity to satisfy Pennhurst’s notice require-

ment and serve as a basis for a damages action. See

Gebser, 524 U.S. at 290-91 (private right of action for

damages under Title IX encompasses intentional sex

discrimination in the form of a recipient’s deliberate

indifference to teacher’s sexual harassment of a student);

see also Davis, 526 U.S. at 633 (private right of action

for damages under Title IX exists for “student-on-stu-

dent” harassment where funding recipient acts with

deliberate indifference to known acts of harassment in

its programs or activities). This case may present an “even

easier case than deliberate indifference” because the

actions at issue here are “easily attributable to the

funding recipient,” and thus, “always—by definition—

intentional.” See Jackson, 544 U.S. at 183-84 (plain terms

of Title IX prohibit retaliation based on coaches’s com-

plaints that girls’ basketball team wasn’t receiving equal

funding and equal access to athletic equipment and

facilities).

A question we raised at oral argument was whether

the defendants were on notice under the plain statement

doctrine as most recently articulated in Sossamon v.

Texas, 131 S. Ct. 1651 (2011), that they were intentionally

violating the clear terms of Title IX by the disparate

scheduling practices even though they were otherwise

providing the girls with equal athletic opportunity in

the sport programs offered? We asked for supple-

20 No. 10-3595

mental briefing on this issue and the defendants

essentially conceded that a private right of action can

arise for an equal treatment type claim where the sport

specific “disparity is ‘substantial enough’ by itself to

deny girls . . . equality of athletic opportunity.” (Appeal

Doc. 37, p. 4) (citing McCormick, 370 F.3d at 295). Instead

of arguing that this suit is barred by the plain state-

ment doctrine, the defendants contend that the plaintiffs

have failed to show a pervasive, substantial disparity.

Thus, the defendants have waived this argument by not

raising it before the district court or developing it on

appeal. See, e.g., Ind. Prot. & Advocacy Servs. v. Ind. Family

& Soc. Servs., 603 F.3d 365, 370 (7th Cir. 2010) (Eleventh

Amendment defense is waivable) (citing Lapides v. Bd.

of Regents of Univ. Sys. of Ga., 535 U.S. 613, 620 (2002)).

We don’t disagree with the defendants that Title IX

requires a systemic, substantial disparity that amounts to

a denial of equal opportunity before finding a violation of

the statute, see, e.g., Davis, 526 U.S. at 650 (deliberate in-

difference to sexual harassment not actionable unless

harassment is “so severe, pervasive, and objectively

offensive that it can be said to deprive the victims of

access to the educational opportunities or benefits pro-

vided by the school”), so it is to that issue we now turn.

While accommodation claims are the subject of most

Title IX cases, at least two circuits and a number of

district courts have determined that plaintiffs made out a

successful equal treatment claim. See McCormick, 370

F.3d at 295-96 (finding school districts’ scheduling of

girls’ high school soccer in the spring and the boys’ in

the fall deprived the girls but not the boys of the oppor-

No. 10-3595 21

tunity to compete in the regional and state championships,

in violation of Title IX); see also Cmtys. for Equity, 178

F. Supp. 2d at 855-57 (holding that high school athletic

association violated Title IX by scheduling athletic

seasons and tournaments for girls’ sports during non-

traditional and less advantageous times of the academic

year than boys’ athletic seasons and tournaments), aff’d,

459 F.3d at 695-96.

In analyzing the plaintiffs’ claim, we must first deter-

mine whether a difference in scheduling has a negative

impact on one sex, and then determine whether that

disparity is substantial enough to deny members equality

of athletic opportunity. See McCormick, 370 F.3d at 293. The

court should look to the overall effect of any differences

on a program-wide, not sport-specific basis. Id. (citing

44 Fed. Reg. at 71,422). For example, disadvantaging

one sex in one part of a school’s athletic program can

be offset by a comparable advantage to that sex in

another area. Id. The defendants have not pointed to

any areas in which female athletes receive comparably

better treatment than male athletes at their schools to

offset any disadvantage resulting from the defendants’

basketball scheduling practices. Accordingly, we must

consider whether the sport-specific disparity is sub-

stantial enough to deny equal athletic opportunity,

which we believe includes equivalent opportunity to

compete before audiences.

Initially we note that the disparity here was systemic.

The evidence shows that Franklin has maintained

this scheduling disparity for several years (at least since

22 No. 10-3595

2007) and we presume it has been this way since the

programs were initially established. Back in 1997, the

OCR wrote a letter to the Indiana High School Athletic

Association (IHSAA), indicating that the OCR viewed the

difference in boys’ and girls’ basketball schedules as

substantial. The OCR wrote the letter because it was

concerned about the scheduling practices of high school

basketball games in Indiana. The IHSAA distributed

the letter to member schools, including the defendants

in this action, and encouraged them to assess their pro-

grams. The letter stated that “[i]n enforcing the Title IX

regulatory requirements pertaining to the scheduling

of games, OCR also examines the day of the week on

which competitive events are scheduled and assesses

whether the scheduling of competitions by a given re-

cipient allows athletes of both sexes an equivalent op-

portunity to compete before audiences.” If an institu-

tion reserves primetime for boys, the OCR explained that

the institution “would be expected to provide a non-

discriminatory justification for the difference in treat-

ment.” An institution cannot, the OCR wrote, adhere

to “tradition” or to the scheduling practices of the confer-

ence as a legitimate, non-discriminatory justification

for gender-based difference in treatment.

The letter continued that the schools “could be found

by OCR to be out of compliance with the scheduling of

games and practice times component of the athletic

provisions of Title IX if they reserve Friday nights for

boys basketball games and schedule girls basketball

games on other nights.” The OCR concluded that it

would consider “whether Friday night games offer the

No. 10-3595 23

best opportunity to compete before the largest possible

audience, whether week night games, particularly

when travel is involved, have a disproportionately nega-

tive effect on the academic studies of the members of

the girls basketball team, and whether the athletics

and coaches of the boys and girls basketball teams

consider Friday nights to be the optimal time to compete.”

The letter from the OCR was distributed to Franklin

fourteen years ago; yet, the disparity in scheduling con-

tinues. Franklin notes that it is seeking to remedy the

disparity on an ongoing basis and that the number of

games girls played in primetime increased by ten

percent in 2009-2010. But despite Franklin’s efforts, a

trier of fact could determine that the present dispar-

ity—girls play 53 percent of their games on primetime

nights while boys play 95 percent of their games on

primetime nights—is substantial enough to deny equal

athletic opportunity and that Franklin hasn’t gone far

enough to remedy the harmful effects of this disparity.

The plaintiffs presented evidence of the negative

impact this disparity has on the girls— disproportionate

academic burdens resulting from a larger number of

weeknight games, reduced school and community

support (loss of audience), and psychological harms

(a feeling of inferiority). The Women’s Sports Founda-

tion and others filed an amicus brief devoted largely to

demonstrating the harm suffered by girls by being rele-

gated to non-primetime scheduling, noting similar con-

cerns as the plaintiffs. We agree that these harms are

not insignificant and may have the effect of discouraging

girls from participating in sports in contravention of

the purposes of Title IX.

24 No. 10-3595

For example, girls might be less interested in joining

the basketball team because of a lack of school and com-

munity support, which results in the perception

that the girls’ team is inferior and less deserving than

the boys’. The practice of scheduling almost twice as

many boys’ basketball games on primetime nights

sends a message that female athletes are subordinate

to their male counterparts and are “second-class.” See

Cmtys. for Equity, 178 F. Supp. 2d at 836 (describing psy-

chological effects of disparate scheduling); see also

McCormick, 370 F.3d at 295 (“Scheduling the girls’ soccer

season out of the championship game season sends a

message to the girls on the teams that they are not

expected to succeed and that the school does not value

their athletic abilities as much as it values the abilities

of the boys.”). This message echos throughout the com-

munity and has stunted the development of a base of

women’s sport fans. See Note, Cheering on Women and

Girls in Sports: Using Title IX to Fight Gender Role Oppression,

110 Harv. L. Rev. 1627, 1630 (1997) (“Women’s and

girls’ sports are [often] marginalized by a lack of atten-

dance and support.”). “There can . . . be little doubt that

this second-class treatment is at least part of the reason

why women do not take up, or continue in, sport[s] at

the same rate as men.” See Koller, supra at 405-06.

Thus, this disparate scheduling creates a cyclical effect

that stifles community support, prevents the develop-

ment of a fan base, and discourages females from partici-

pating in a traditionally male-dominated sport. Accord-

ingly, “[t]he different value that society may place on

the competitive success of female athletes as compared

No. 10-3595 25

to male athletes . . . must not play a role in our assess-

ment of the significance of the denial of opportunity to

the female athletes . . . .” McCormick, 370 F.3d at 296.

The central aspect of Title IX’s purpose is to encourage

women to participate in sports, Neal, 198 F.3d at 768,

despite stereotyped notions of women’s interests and

abilities, Cohen v. Brown Univ., 101 F.3d 155, 179 (1st Cir.

1996) (“Title IX was enacted in order to remedy discrim-

ination that results from stereotyped notions of women’s

interests and abilities.”). “Interest and ability rarely

develop in a vacuum; they evolve as a function of op-

portunity and experience.” Id.

Further, some girls who would like to try out for

the team may be dissuaded by the number of non-

primetime games that conflict with their academic stud-

ies. When the girls play weeknight games, the

time they have to complete their homework and study

for tests is severely restricted, placing them at an

academic disadvantage. J.L.P. attested that by the time

the junior varsity and varsity games end, it is close to

10:00 p.m. and she is often up until 11:30 p.m. to 12:30 a.m.

finishing homework. The disparity in scheduling and

resulting conflict that the girls face between basketball

and academics may discourage them from participating

in basketball altogether.

Based on these harms suffered by the Franklin girls’

basketball team because of the obvious disparity in sched-

uling, we conclude that the plaintiffs have presented

sufficient evidence for trial to determine whether the

disparity and resulting harm in this case are substantial

enough to deny equal athletic opportunity.

26 No. 10-3595

The defendants argue in a footnote that the non-

Franklin defendants should be dismissed because

neither plaintiff attended those schools and thus, they

were not the direct beneficiaries of the federal funds

flowing to those schools. The defendants have waived

this argument by not developing it on appeal. See

Argyropoulos v. City of Alton, 539 F.3d 724, 738 (7th

Cir. 2008) (undeveloped arguments are waived). Their

argument is in a footnote, consists of four sentences,

and contains no citation to authority. The defendants

attempt to “incorporate . . . by reference” arguments in

their brief to the district court seeking to dismiss the non-

Franklin defendants on this basis, but “appellate briefs

may not incorporate other documents by reference.”

Albrechtsen v. Bd. of Regents, 309 F.3d 433, 435-36 (7th

Cir. 2002); see also United States v. Foster, 789 F.2d 457,

462 (7th Cir. 1986).

The non-Franklin defendants are necessary parties in

the scheduling of games. The defendants jointly agree

on the schedules and Franklin cannot unilaterally

change the schedules. In fact, when Franklin’s athletic

director tried to increase the number of primetime

girls’ basketball games, the other athletic directors in

the EIAC conference refused her request. The non-

Franklin defendants must comply with any injunction

that is issued in this case; otherwise the plaintiffs are

left without an effective remedy. See Fed. R. Civ.

P. 65(d)(2)(C) (stating that an injunction binds parties

and other persons who are in active concert or participa-

tion with a party if they receive actual notice); see also

Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 91 F.3d

No. 10-3595 27

914, 919 (7th Cir. 1996) (“[P]arties otherwise without

an injunction’s coverage may subject themselves to its

proscriptions should they aid or abet the named parties

in a concerted attempt to subvert those proscriptions.”).

The plaintiffs, however, cannot seek monetary

damages against the non-Franklin schools because their

argument focuses on the harm suffered as a result of

Franklin’s overall disparate scheduling practices. The non-

Franklin schools may have contributed to the plaintiffs’

harm in scheduling the one or two games those defendants

played against Franklin. However, Title IX requires

examination of the overall scheduling practices of a

school and the resulting harm from any disparity;

that examination is missing here as to the non-Franklin

defendants. In fact, some of the non-Franklin schools

have significantly less scheduling disparity than

Franklin and others played the Franklin girls’ team on

a primetime night. Nevertheless, if a trier of fact finds

in favor of the plaintiffs, any remedy will require the

affirmative effort of all defendants, and thus, as noted

above, the non-Franklin defendants are subject to any

injunction that may be entered against Franklin.

B. Equal Protection Claim

The plaintiffs have also asserted a claim under 42 U.S.C.

§ 1983 for violation of the equal protection clause of the

Fourteenth Amendment. U.S. C ONST. amend. XIV, § 1.

Title IX was not meant to be an exclusive mechanism

for addressing gender discrimination in schools, or a

substitute for § 1983 suits as a means of enforcing con-

28 No. 10-3595

stitutional rights. See Fitzgerald, 555 U.S. at 258. “Even

where particular activities and particular defendants

are subject to both Title IX and the Equal Protection

Clause, the standards for establishing liability may not

be wholly congruent.” Id. at 257. Without reaching the

merits of the plaintiffs’ equal protection claim, the district

court granted summary judgment to the defendants

on the basis of state sovereign immunity under the Elev-

enth Amendment.3

3

The Eleventh Amendment provides: “The Judicial power of

the United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. C ONST . amend. XI. The text

of the Eleventh Amendment “does not provide for immunity

when a citizen sues his resident state.” See Crosetto v. State Bar

of Wis., 12 F.3d 1396, 1400 n.5 (7th Cir. 1993). The Court, never-

theless, has “understood the Eleventh Amendment to stand

not so much for what it says, but for the presupposition . . .

which it confirms . . . . That presupposition, first observed

over a century ago in Hans v. Louisiana, 134 U.S. 1 (1890), has

two parts: first, that each State is a sovereign entity in our

federal system; and second, that ‘[i]t is inherent in the nature

of sovereignty not to be amenable to the suit of an individual

without its consent[.]’ ” Bd. of Regents of Univ. of Wis. Sys. v.

Phoenix Int’l Software, Inc., 653 F.3d 448, 472-73 (7th Cir. 2011)

(quoting Seminole Tribe of Florida v. Fla., 517 U.S. 44, 54

(1996)). “In developing the Hans doctrine, the Eleventh Amend-

ment has served as a historical framework for the Supreme

Court’s teaching that the Constitution never granted federal

(continued...)

No. 10-3595 29

“A cause of action under § 1983 requires a showing that

the plaintiff was deprived of a right secured by the Con-

stitution or federal law, by a person acting under color

of law.” Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir.

2011) (emphasis added). We don’t need to address state

sovereign immunity where we can resolve the issue by

examining whether the defendants are “persons” under

§ 1983. “It is both unnecessary and inappropriate to

decide whether the Constitution would prevent litiga-

tion that Congress has not authorized in the first

place.” See Holton v. Ind. Horse Racing Comm’n, 398 F.3d

928, 929 (7th Cir. 2005) (citing Lapides, 535 U.S. at 617-18).

On the other hand, if the defendants are “persons”

within the meaning of § 1983, Congress, as part of its

powers under Section 5 of the Fourteenth Amendment,

has exercised its power to allow suit against them. See

Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); see also Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989);

Mercado v. Dart, 604 F.3d 360, 362 (7th Cir. 2010).

The Supreme Court has construed the statute to in-

clude “municipal corporations and similar governmental

entities” as “persons” subject to § 1983 liability. Howlett

v. Rose, 496 U.S. 356, 376 (1990). The Court in

Howlett restated the proposition that “[b]y including

municipalities within the class of ‘persons’ subject to

liability for violations of the Federal Constitution and

3

(...continued)

courts any judicial power over suits by a citizen against his

own state.” Crosetto, 12 F.3d at 1400.

30 No. 10-3595

laws, Congress—the supreme sovereign on matters of

federal law—abolished whatever vestige of the State’s

sovereign immunity the municipality possessed.” Id.

“Federal law makes governmental defendants that

are not arms of the State, such as municipalities, liable

for their constitutional violations.” Id. at 377. The

Supreme Court again reiterated in Will that units of

local government are “persons” and are therefore,

subject to suit under § 1983. See Will, 491 U.S. at 70.

School corporations are political subdivisions with

locally elected school board members and super-

intendents; as such, they are local government units.

See, e.g., Bd. of Trs. of Hamilton Heights Sch. Corp. v. Landry,

638 N.E.2d 1261, 1265 (Ind. Ct. App. 1994) (reviewing

Indiana statutory provisions and finding that they define

a school corporation as a “political subdivision.”); see

also Ind. Code § 4-12-1-2(d) (definition of “agency of the

state” excludes school districts); Ind. Code § 22-9-1-12.1

(definition of “state agency” excludes public school

corporations); Ind. Code § 36-1-2-10 (definition of “munici-

pal corporation” includes school corporation); Ind. Code

§ 5-10.1-1-7 (definition of “political subdivision” in-

cludes public school corporation).

The defendants, however, argue that they are “arms of

the state,” not independent political subdivisions, and

as such, are not “persons” for the purpose of § 1983 and

not subject to suit. See Will, 491 U.S. at 70 (instructing

lower courts to refer to the Eleventh Amendment

arm-of-the-state analysis in determining whether an

entity is a “person” for purposes of § 1983) (citing

No. 10-3595 31

Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977));

see, e.g., Kaimowitz v. Bd. of Trs. of the Univ. of Ill., 951 F.2d

765, 767 (7th Cir. 1992) (“Because this Court has deter-

mined in previous § 1983 actions that a state university

is an alter ego of the state, and, under Will, a ‘State is

not a person’ under § 1983, it follows that a state

university is not a person within the meaning of § 1983

and therefore not subject to suits brought under

§ 1983.”). In addressing this issue, we look to the scope

of the Eleventh Amendment; although the scope of

the Eleventh Amendment and the scope of § 1983

are separate issues, “in deciphering congressional intent

as to the scope of § 1983, the scope of the Eleventh Amend-

ment is a consideration,” and the Supreme Court

has declined to adopt a reading of § 1983 that disregards

it. Will, 491 U.S. at 66.

We believe that under Will, as local governmental

units, the school corporations are clearly “persons”

within the ambit of § 1983. Id. at 70. Nevertheless, for

completeness, we address the defendants’ argument

that they are arms of the state under Eleventh Amend-

ment jurisprudence and thus not “persons” under § 1983.

The Supreme Court has set forth four factors as relevant

in determining whether a local school district is an arm

of the state: (1) the characterization of the district

under state law; (2) the guidance and control exercised

by the state over the local school board; (3) the degree

of state funding received by the district; and (4) the

local board’s ability to issue bonds and levy taxes on

its own behalf. See Mt. Healthy, 429 U.S. at 280 (holding

that a local school board, as constituted by Ohio law,

32 No. 10-3595

is “more like a county or city than it is like an arm of

the State.”); see also Burrus v. State Lottery Comm’n of

Ind., 546 F.3d 417, 420 (7th Cir. 2008) (“To determine if

a particular entity is an arm of the state, courts look

primarily at two factors: (1) the extent of the entity’s

financial autonomy from the state; and (2) the ‘general

legal status’ of the entity[;]” the entity’s financial

autonomy is the most important factor.) (quotations

omitted).

The Supreme Court in Regents of the University of Cali-

fornia v. Doe, 519 U.S. 425, 429 (1997) explained that “when

the action is in essence one for the recovery of money

from the state, the state is the real, substantial party

in interest and is entitled to invoke its sovereign

immunity from suit . . . .” Id. (quotations omitted).

When making this determination, we should inquire

“into the relationship between the State and the entity

in question,” and examine “the nature of the entity

created by state law.” Id. “[T]he question whether a

money judgment against a state instrumentality or

official would be enforceable against the State is of con-

siderable importance to any evaluation of the relation-

ship between the State and the entity or individual

being sued.” Id. at 430. “[I]t is the entity’s potential

legal liability, rather than its ability or inability to

require a third party to reimburse it, or to discharge

the liability in the first instance, that is relevant.” Id. at

431; see also id. 428, 431 (quoting with approval

dissenting judge’s statement that “[t]he question is not

who pays in the end; it is who is legally obligated to

pay the judgment that is being sought.”) (quoting Doe

No. 10-3595 33

v. Lawrence Livermore Nat’l Lab., 65 F.3d 771, 777-78 (9th

Cir. 1995) (Canby, J. dissenting), rev’d, 519 U.S. 425); see

also Duke v. Grady Mun. Schs., 127 F.3d 972, 981 (10th Cir.

1997) (“We interpret Doe to require us to focus on legal

liability for a judgment, rather than practical, or indirect,

impact a judgment would have on a state’s treasury.”)

(emphasis added).

We have previously held that “[a] local school district

ordinarily is not a ‘State’ and hence may be sued in

federal court . . . .” Gary A. v. New Trier High Sch. Dist.

No. 203, 796 F.2d 940, 945 (7th Cir. 1986). However, in

2008, the Indiana legislature passed Public Law 146-

2008, House Enrolled Act 1001, § 450-529 (amending

Education Title). Through this Act, the legislature

made significant amendments to its complex statutory

and regulatory scheme governing the financial structure

of its local school corporations and the level of state

control and oversight over the decisions and activities

of those school corporations. Based on the changes

made by PL 146, the plaintiffs urge us to take a dif-

ferent course from that in Gary.

We begin by considering the “most salient factor” in

determining whether the defendants are arms of the

state—who is legally obligated to pay any judgment

in this case? The answer to that question is the

defendants, not the State of Indiana. With the enactment

of PL 146, state funding now makes up between two-

thirds to three-fourths of the state budget and state sales-

tax distributions have replaced local property taxes as

100 percent of the schools’ general fund revenue. Never-

34 No. 10-3595

theless, it’s irrelevant that state aid may find its way to

the plaintiffs’ pocket. Gary A., 796 F.2d at 945. Although

the state funds a significant portion of the schools’

budget, school corporations still have the power to

levy taxes and issue bonds under certain circumstances

for non-operating funds. For example, the debt services

fund may be used to pay “debt and other obligations

arising out of funds borrowed to pay judgments against

the school corporation.” Ind. Code § 20-40-9-6(c).

This can be funded through a property tax levy. Ind.

Code § 20-46-7-4. The schools have the statutory option

to issue bonds for paying an adverse judgment under

Ind. Code § 20-48-1-1(b)(2), the payment of which may

be funded out of the debt service levy. The schools

can also establish a self-insurance fund for the purposes

of paying judgments. See Ind. Code § 20-40-12-5.

In the event of a school’s inability to pay its debt

service obligations, “the treasurer of state, upon being

notified of the failure by a claimant, shall pay the

unpaid debt service obligations that are due from the

funds of the state only to the extent of the amounts ap-

propriated by the general assembly for the calendar

year for distribution to the school corporation from state

funds, deducting the payment from the appropriated

amounts. ” Ind. Code § 20-48-1-11(c); see also Ind. Code § 6-

1.1-20.6-10(c). “This section shall be interpreted liberally

so that the state shall to the extent legally valid ensure

that the debt service obligations of each school corpora-

tion are paid. However, this section does not create a

debt of the state.” Ind. Code § 20-48-1-11(d); see also Ind.

Code § 6-1.1-20.6-10(d). The state guarantees unpaid debt

No. 10-3595 35

service obligations only to the extent of the amounts

appropriated for the school. The statute doesn’t require

the state to pay out additional funding to the schools

for judgments. And despite this “guarantee,” judgments

remain the schools’ legal obligation. See, e.g., Febres v.

Camden Bd. of Educ., 445 F.3d 227, 233-34 (3d Cir. 2006)

(school board was not arm of the state even though it

received most of its funding from the state where state

did not have legal obligation to provide funds in

response to adverse judgment against board); Holz v.

Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1182 (9th Cir.

2003) (school district was not state agency even though

state funds provided 98 percent of district’s budget in

part because state was not legally required to satisfy any

monetary judgment entered against the district); Duke,

127 F.3d at 980-81 (concluding that even though the

state provided 98 percent of the school board’s

budget, “the factor relating to the liability of the

state treasury points away from Eleventh Amendment

immunity, for the simple reason that the state of New

Mexico is not legally liable for a judgment against a

school district”).

Further, as noted above, nothing in PL 146 altered the

general legal status of school corporations as political

subdivisions with locally elected school board members

and superintendents (not gubernatorial appointments)

who serve local communities (not the State of Indiana as

a whole). “Indiana chose to organize public education

through local school districts instead of establishing a

single state agency to control all public education.” See

Landry, 638 N.E.2d at 1265 (quotations omitted). School

36 No. 10-3595

corporations are independent corporate bodies that can

sue and be sued and enter into contracts. See id.; see

also Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 223-

24 (4th Cir. 2001) (factors weighing against finding that

school board was arm of state). Thus, although the

state now provides a significant portion of the schools’

funding through revenues raised by state sales taxes

and with that has exerted significantly more guidance

and control over the local school corporations, the

schools are nonetheless still local units with political

independence and a certain amount of operational inde-

pendence. As explained, they also have the ability to

raise their own funds for purposes of paying judg-

ments and are legally obligated to pay those judgments

from their budget. As such, we conclude that the defen-

dants are “persons” within § 1983 and subject to suit.

Because the district court determined that the

defendants were entitled to sovereign immunity, it never

addressed whether any genuine issues of material fact

exist as to plaintiffs’ equal protection claims. We there-

fore remand for the district court to consider this issue

in the first instance. See, e.g., Johnson v. Hix Wrecker Serv.,

Inc., 651 F.3d 658, 664 (7th Cir. 2011) (declining to

address issue raised on summary judgment that the

district court hadn’t first considered).

III. Conclusion

For the reasons discussed above, we vacate the district

court’s entry of summary judgment in favor of the defen-

No. 10-3595 37

dants on the plaintiffs’ Title IX and equal protection

claims and remand for further proceedings consistent

with this opinion.

1-31-12