Use of Derogatory Terms to Motivate Student-Athletes is Permissible Under Title IX

A football coach’s use of derogatory terms, some involving sexual expletives, to motivate his football student-athletes was found permissible under Title IX, 20 U.S.C. §1681, which prohibits sex discrimination in federal-funded educational institutions such as public high schools and universities.  Chisholm v St. Mary’s City School District Board of Education, ____ F 3d ____, Case No. 19-3034/3100 (CA 6, 2020) (recommended for publication). The defendant public school district hired a football coach, who had a reputation for using obscene language, to turn around its football program. The plaintiffs were student-athletes who participated in the football program. Daily, the coach called these students and their teammates various names, including “pussy,” “bitch” and “pretty boy.”  One student plaintiff claimed that some of his teammates even joined in the ridicule. Eventually, teammates voted one of the plaintiffs off the team. 

Meanwhile, the students’ parents sent a letter to the school district requesting the coach’s removal. The school district investigated the coach’s conduct, during which coaches and students readily acknowledged the coach’s swearing, but the investigation did not believe that the coach’s conduct was inappropriate. The coach claimed that his use of derogatory terms was to motivate his student-athletes to be “tough.” 

Dissatisfied with the school district’s finding, the plaintiffs filed a lawsuit against the coach and various members of the school district, including the superintendent and members of the board of education. The plaintiffs asserted a Title IX complaint and complaint of intentional infliction of emotional distress under Ohio law. The district court dismissed the complaint which the plaintiffs appealed to the United States Sixth Circuit Court of Appeals. 

A majority opinion of the Sixth Circuit’s three-judge panel affirmed the district’s court’s dismissal of the lawsuit. Any Title IX claim must be on the basis of sex. The coach’s derogatory terms were not made on the basis of sex: (1) the coach was not motivated out of sexual desire towards his male athletes; (2) the coach was not motivated by a general hostility to the presence of one sex in the workplace since in this case there were no female football athletes; (3) nor did the coach treat members of each sex differently in a mixed-sex environment. The majority opinion concluded that Title VII is not a general civility code. The majority opinion did not endorse the use of these derogatory terms but concluded that crude or vulgar language alone does not violate Title IX. 

Also, the majority opinion concluded that the coach’s conduct did not satisfy the high bar of establishing infliction of emotional distress. The dissenting judge supported the Title IX conclusion but found that the coach’s persistent use of derogatory terms created a jury issue as to whether the plaintiffs had articulated an action for infliction of emotional distress. 

The Sixth Circuit decision is helpful to public school districts in connection with Title IX complaints.  Nevertheless, a school district should always consider whether a coach’s or school employee’s use of vulgar and/or profane language is appropriate under the school district’s policies.  What may be legal still may not be acceptable conduct. If you have any questions regarding the Sixth Circuit’s Chisholm decision, please contact your Clark Hill education law attorney.