WE’RE ZOOMING WITH THE DAWG THIS THURSDAY!! BE THERE AT 10:00. WE’RE GOING TO TALK ABOUT CHATgbt AND THE RISE OF AI.

You can find the first Daily Dawg report on the frog jump case on the April 7th post. The court tossed out the suit then, and now it has tossed it out again. The first ruling was “without prejudice” which meant that the plaintiff’s lawyer was given the opportunity to take another shot at explaining why the case might have merit. The lawyer then filed an amended complaint, but the court tossed this one also. This time the dismissal was “with prejudice.” That doesn’t mean the judge has a prejudice. It means that the plaintiff is not allowed to amend the complaint and take another shot. It's over, unless the plaintiff appeals to the 5th Circuit.

The suit alleged that Northside ISD favored football more than cheerleading. The suit alleged that the district pours resources into football, including significant efforts to provide for student safety, whereas the all-girl cheerleading squad at Clark High School was inadequately supported. According to the suit, this was why the plaintiff was required to do 150 “frog jumps” in sweltering heat, causing physical injuries. All because she was late for practice.

To hold the district liable for constitutional violations in a case like this the plaintiff has to show that board policy, or clearly established custom, led to the student’s injuries. But the term “frog jumps” appears nowhere in NISD policy and in fact, the district’s policies prohibit the use of exercise as a form of punishment. So there was no basis for district liability under the Constitution.

What about Title IX? That’s where the plaintiff alleged that the district favored football more than cheerleading. The plaintiff tried to make a sex discrimination issue out of that, but the effort failed:

…Plaintiff’s allegations at most demonstrate a discrepancy between sports.

The court noted that this same argument (by the same lawyer) had been dealt with previously in a case involving a dance team. The court quoted the earlier opinion:

As there are myriad differences between football and the dance team besides the gender of the majority of each activity’s participants, this is not differential treatment of similarly situated individuals. Title IX liability does not arise based solely on the fact that different sports teams might require different treatment based on the unique training, safety, performance, and other specific factors related to each.

It's Murphy v. Northside ISD, decided by the federal court for the Western District of Texas. The original decision was issued on February 16, 2023. It’s located at 2023 WL 2060744. The “with prejudice” dismissal happened on May 3, 2023, and can be found at 2023 WL 3232614. I’m pleased to let you know that Katie Payne and Craig Wood from our firm’s San Antonio office represented the district on this one.

DAWG BONE: DISMISSAL “WITHOUT PREJUDICE” MEANS YOU CAN TRY AGAIN. DISMISSAL “WITH PREJUDICE” MEANS WE ARE DONE HERE.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!