In a recent case from the 9th Circuit a former track athlete at the University of Arizona named two coaches as defendants. As the Daily Dawg reported yesterday, the crux of the matter is the harassment the Plaintiff suffered from other track team members because they thought he was gay. He alleges continual harassment for over a year and a failure to respond by the coaches.
The University might face liability for this under Title IX, but not the coaches. The court noted that “courts have consistently held that Title IX does not subject school officials to liability in their individual capacity.” So the suit against the coaches was not based on Title IX, but rather, a failure to provide due process before the Plaintiff was kicked off the track team and lost his scholarship.
Does the Due Process clause of the constitution apply when a student is removed from an athletic team? Loyal Daily Dawg Readers know the answer to that question as it applies to public schools. No, the Due Process clause does not apply. Participation in extracurricular activities is a privilege and not a right. Process is Due only when a “right” is being taken away.
But the Plaintiff in this case had a college scholarship that was taken away from him. That’s real money. Not to mention the loss of potential revenue from NIL deals. Isn’t that a “property right” that would require due process before it is taken away?
The court did not directly decide that issue. Instead, it fell back on: “it’s not clearly established.” Individual liability can be imposed under federal law only if the person violated legal standards that are “clearly established.” According to the 9th Circuit, a property right in an athletic scholarship was not something that was “clearly established” at the time the coaches booted the Plaintiff from the team.
I think they got lucky. The Plaintiff’s lawyers found a case from the 2nd Circuit that they thought would help. It flatly held that an athletic scholarship created a “property right” that was entitled to constitutional protection. But the 9th Circuit pointed out that the 2nd Circuit case was decided in November, 2022, whereas the coach kicked this kid off the team in 2018. So the coaches couldn’t have known about it. The law was not “clearly established” on this point. Therefore, the coaches have “qualified immunity.” Case over.
It’s Grabowski v. Arizona Board of Regents, decided by the 9th Circuit on June 13, 2023. It’s cited at 69 F.4th 1110.
DAWG BONE: THE PROBLEM WITH “CLEARLY ESTABLISHED” IS THAT ITS MEANING IS NOT CLEARLY ESTABLISHED.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: A significant anniversary….