4th Cir Short Note: Bend Over And Take It Like A Man, Dorrance; And Shame On UNC

JENNINGS v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, USCA-4 No. 04-2447, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/042447A.P.pdf , on appeal from USDC-NCMD, before USCA-4 en banc, filed 09 Apr 2007.

Coach Anson Dorrance of the UNC-CH women's soccer team is by far the winningest and most successful coach in women's soccer nationwide. According to Plaintiff, a soccer player for two years, Dorrance was also an outrageous pervert, obsessed with his players' sex lives and constantly commenting on their bodies. In front of some or all of the team, he asked players with whom they were fornicating, talked of large "racks" and spandex, described his wish for a threesome with two Asian players, wondered if a particularly promiscuous player would do the whole lacrosse team, and would have died to be a fly on the wall when a player who was an evangelical Christian committed to chastity lost her virginity. On a road trip, Dorrance got Plaintiff to be alone with him in a dark hotel room with an unmade bed, told her she was on the verge of being cut from the team for low grades, and asked "who are you [do]ing?" Dorrance seemed to focus his vulgar inquiries on each player in turn, and when he chose Plaintiff for such singling out, asked her in front of others whether she had a shagfest with her boyfriend the previous week; Plaintiff, humiliated, refused to respond. Dorrance also touched players inappropriately or pretended to, especially when they were lightly clad. Plaintiff approached Susan Ehringhaus, UNC counsel and assistant to the Chancellor, and detailed Dorrance's behavior. Ehringhaus pooh-poohed her concerns, said Dorrance was a great guy, and told Plaintiff to work it out. Dorrance eventually cut Plaintiff from the team for low grades and lack of fitness at the end of her sophomore year.

Plaintiff sued UNC, Dorrance, Ehringhaus, and others for Title IX (20 U.S.C. § 1681(a)) sex discrimination and per 42 U.S.C. § 1983 for violating her constitutional or federal statutory rights. The trial court granted Defendants' motion for summary judgment and dismissed the case, and a divided panel of the Fourth Circuit affirmed, but the Fourth Circuit granted review en banc.

To defeat summary judgment on a Title IX claim, Plaintiff had to forecast evidence sufficient to prove four elements to a reasonable jury. (1) UNC was an educational institution receiving federal funds, which it of course was. (2) She was subject to harassment based on her sex. UNC laughed off Dorrance's behavior as jokes and horseplay, but the Fourth Circuit ruled that his conduct went far beyond simple teasing and qualified as sexual harassment. (3) The harassment created a hostile or abusive environment. While Title IX is not a general civility code, and substantial allowance is due for the locker-room nature of athletics, a jury could find on these facts that Dorrance's persistent sexual harassment was sufficiently degrading to young women to create a hostile or abusive environment. The harassment deprived her of educational opportunities or benefits. Even after a discount for her disappointment at being cut, Plaintiff certainly suffered deprivation from the sexual harassment she had to endure in order to play soccer for as long as she did. (4) There was a basis to impute liability to the institution. Plaintiff went directly and personally to Ehringhaus and detailed Dorrance's outrageous behavior at length, only to have Ehringhaus take Dorrance's side immediately and not communicate Plaintiff's concerns to anyone else, much less do anything about them. UNC had actual notice and could be liable for its nonfeasance.

As to Section 1983 liability, Plaintiff showed that Dorrance was a state actor and used his position as coach to sexually harass Plaintiff, and this harassment was sufficiently severe or pervasive to interfere with her educational activities. Defendants did not press their qualified immunity defense below, so the Fourth Circuit would not consider it anew on appeal. Plaintiff's other claims were correctly dismissed, but Title IX and Section 1983 survived. GRANT OF SUMMARY JUDGMENT VACATED and cause remanded for further consistent proceedings.

EDITORIAL: Way to go, Heels! They haven't lost yet--all the Fourth Circuit really said is that now it can go to trial--but it's looking pretty bad for the home team. Chapel Hill is supposed to be the Land that Time Forgot as of 1969, a paradise of perfect Diversity, where all people and beliefs are celebrated. (except, of course, for white heterosexual male conservative Christians not of Hispanic origin). So how did the Thought Police allow this to happen in the Home of World Socialism? Tellingly, one of the harassment victims was a Christian who got humiliated because she wanted to wait for marriage. This is a totally unacceptable attitude in UNC, so I guess they didn't care what Dorrance did to that student. Could it also be that the soccer team won a lot of games and 19 national championships, and that's all that matters to UNC?

Mostly, I would guess that this mess was due to UNC's being so totally obsessed with annihilating the imagined Religious Right conspiracy, and after 9/11 making sure that all students agree that Islam is the greatest and most wonderful religion on earth, that they couldn't be bothered with bad things that were actually happening to their students. You see, Dorrance wasn't a Bible-thumping Baptist, so he must have been all right. Susan Ehringhaus said it, and we must all believe it. Except now, of course, she will get to explain to a jury her unbelievable treachery against a female student who needed a little help. As will UNC--but hopefully not with our tax dollars. Take it out of the athletic donation box.

Incredibly, Dorrance is still there. Winning is everything, justice and right are nothing, at UNC.