Wednesday, April 11, 2007

En Banc Court Sends Dorrance Case to Trial

The University of North Carolina's dynastic women's soccer team has won 19 national titles in 26 years. It is practically the feeder team to the US national team and the(now defunct) WUSA, having produced some of the most recognizable names in women's soccer, including Mia Hamm and Kristine Lilly. Since the program's inception in 1979, head coach Anson Dorrance has been at the helm.

Melissa Jennings played for Dorrance as a backup goalkeeper from 1996 to 1998. She subsequently brought suit against both Dorrance and UNC, alleging that Dorrance committed, and UNC was indifferent to, sexual harassment in violation of Title IX. According to her complaint, Dorrance repeatedly questioned players, including Jennings, about their sex lives and often implied that his players were promiscuous. He regularly commented on players' bodies in a sexual way, he referred to one player by a male name because he believed her to be a lesbian, and he even confessed to his players that he had sexual fantasies about them. Once, at a one-on-one meeting in a hotel room, Dorrance asked Jennings, "who are you fucking?"

Uncomfortable in the highly sexualized atmosphere, Jennings complained about Dorrance to university officials while she was still a freshman player on the team. The complaint got as far as a university lawyer, who told her to "work it out" with Dorrance. After she was cut from the team as a sophomore, she complained about Dorrance again. This time, the Athletic Director issued a "brief, mild" letter of reprimand to Dorrance and letter of apology to Jennings's father. It was at this point that Jennings brought her case in federal court. She did not feel comfortable enough at UNC to continue her education there, and spent her senior year as a visiting student at another institution.

In 2004, a federal district court dismissed Jennings's claims on summary judgment. Jennings appealed and lost again when a divided three-judge panel of the 4th Circuit affirmed the district court. But in a rather rare move, the 4th Circuit decided to meet en banc -- all ten judges together -- to reconsider the panel's decision. Earlier this week, the en banc 4th Circuit reversed the panel decision and remanded the case to the district court for a trial.

The court held that Jennings's version of facts, if proven true at trial, would support a legal conclusion that Dorrance and UNC (and also the lawyer who told her to "work it out") would be liable under Title IX for sexual harassment. Dorrance's "degrading and humiliating conduct" was "sufficiently severe and pervasive to create a sexually hostile environment." In reaching this conclusion, the court was careful to distinguish the "informal, sometimes jocular, college sports team atmosphere" that fosters the kind of closeness and casualness that might result in a male coach using a sexual slang in front of female players. "Title IX is not a civility code...meant to punish [a] coach for off-color language that is not aimed to degrade or intimidate. What happened n this case, if Jennings's version of the facts is believed, is that Dorrance took advantage of the informal team setting to cross the line and engage in real sexual harassment that created a hostile or abusive environment."

The decision is: Jennings v. University of North Carolina, 2007 WL 1040592 (4th Cir. Apr. 9, 2007) (en banc).
News accounts are here (Greensboro News-Record), here (Daily Tarheel) and here (ESPN).

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