Private School Suspends Girl Who Sued to Play on Boys' Team

The local news in New Jersey recently reported about the decision of St. Theresa's School in Kenilworth to expel a female seventh grade student and her sister after the seventh-grader's unsuccessful attempts to sue the school for the right to try out for the boy's basketball team. A judge ruled in January that she had no right under applicable law, and the family is appealing.

If this student went to public school, she would have a strong argument that the U.S. Constitution's Equal Protection Clause protects her right to try out for the boys' team, which is the only basketball team offered by her school. The Equal Protection Clause requires state and local governments, including school districts, to avoid generalizations and stereotypes when making any sex-based classification. Under this rationale, female students have prevailed in many cases seeking the right to try out for a variety of sports, including sports like basketball that are covered by Title IX's contact sports exemption.

If she went to public school, the student and her family would also have legal recourse to challenge the decision to expel the student and her sister as apparent retaliation for the family's decision to appeal, since Title IX provides strong protection against retaliation. But the majority of private religious elementary and secondary schools do not accept federal funding, insulating them from the obligation to protect students civil rights. Unless St. Theresa's is among those private schools who participate federal programs to subsidize student's school lunches or to purchase classroom technology, the student and her family cannot rely on this statute for recourse.

Often when I write posts about stories where Title IX did not apply, I make the point that students and their families need to be careful when selecting private schools, since that decision often subjects the student to sex discrimination without legal recourse. But it also a cautionary tale against privatization as a policy matter. If federal support for public schools wains or disappears under the current administration -- a possibility signaled by president's nomination of Betsy DeVos -- more and more families may be compelled to accept private schools as a result. This shift would send more and more students like this one into the void of civil rights, with no statutory or constitutional protections available.