Judge Dismisses Heterosexual Bias Case

Last year, a former player for the Central Michigan State women's basketball team sued her coach, the university, and other university officials, challenging the coach's decision to revoke her scholarship and the athletic department's affirmation of that decision. Plaintiff Brooke Heike's primary complaint was that the coach's decision was motivated by discrimination against her as a white, straight player. You may recall that we were skeptical that Heike would prevail, due to the meager basis for her claim that the coach's decision was motivated by discrimination.

Indeed, I read yesterday on Pat Griffin's blog that the federal district court judge has dismissed the Heike's case in full. She had filed a total of nine counts, and asserted many of them against the coach, Sue Guevara, the university, the athletic director and other athletic department officials. So the dismissal of this case has been occurring in piecemeal fashion since last fall.

First, in September, the court dismissed Heike's claims against the university, which included claims that the revocation of her scholarship violated her constitutional rights to due process and equal protection. Specifically, the claims against the university were barred by the doctrine of sovereign immunity, which says you can't sue the government without its consent. While Congress has abrogated state sovereign immunity from liability under civil rights statutes, the plaintiff did not argue that CMU violated Title IX or any other federal statute. For similar reasons, the court dismissed these claims as asserted against the individual defendants. However, the order only covered Heike's claims that the individuals could be liable for money damages; the court did not dismiss her claims for prospective relief at that time.

In November, the court dismissed the plaintiff's defamation claims against athletic department officials, as well as claims that they were negligence in hiring and supervision of Guevara. This was followed, in February, by dismissal of Heike's claims that Guevara defamed her by presenting false and damaging statements about her. The court reasoned that defamation did not apply to these statements, which were made to the committee considering Heike's appeal of Guevara's decision to revoke her scholarship, because Heike consented to the statements by filing her appeal.

This week's order addressed plaintiff's claims for prospective relief against individual defendants under federal constitutional law, a context that required the court to address the sufficiency of Heike's allegations of discrimination. First, the court found that Heike's only allegations in support of her race discrimination claim -- her a interpretation that Guevara's statement that Heike was not "her type of player" -- did not qualify as an allegation that Guevara was motivated by race, even considered in the context of Heike's other allegations that Guevara preferred players who were "thug" and "ghetto." (Seriously? Those are Heike's allegations and she's charging someone else with race discrimination?) Nor did Heike allege race discrimination by contrasting the coach's treatment of her to that of black players with similar playing statistics. None of the players Heike selected for this comparison, who had all retained their scholarships, were similarly situated to Heike because they had positive attitudes and fostered good team chemistry, while Guevara terminated Heike because she had a negative attitude and caused problems for the team.

Heike's other discrimination claims, based on her sexual orientation, was subject to less scrutiny than her race discrimination claims because because sexual orientation is not a protected characteristic under federal constitutional law. The court required Heike to show that Guevara's decision to terminate her scholarship was motivated by animus or bias. Heike's allegations that the coach encouraged her to toughen up and told her not to wear makeup did not satisfy this high standard.

Interestingly, Heike did not argue that these statements constituted gender discrimination.
If she had, this would have subjected Guevara's alleged statements to heightened scrutiny, and could have also allowed Heike to pursue a Title IX claim. Not that Heike would have necessarily succeeded on a gender discrimination theory, but it would have produced additional analysis. Specifically, analysis of the legal question whether sex discrimination includes discrimination based on gender-conforming behavior, as well as factual questions about whether Guevara revoked her scholarship for reasons to do with gender rather than her performance and attitude.

Heike could appeal the court's decision, though I would be surprised if she kept fighting. The district court readily dismissed all of Heike's claims that could have been remedied with money damages. The only claims that required the court to do any heavy lifting were those that could only be remedied by prospective relief. I doubt that Heike would be motivated to fight on by the hopes of obtaining order prohibiting CMU and its officials from engaging in discrimination in the future. Moreover, it is too late to add another claim such as one alleging gender discrimination in violation of Title IX or the Equal Protection clause.