30 F.Supp.2d 975 (E.D.Ky. 1998), C. A. 98-180, Chipman v. Grant County School Dist.

Docket NºC. A. 98-180
Citation30 F.Supp.2d 975
Party NameChipman v. Grant County School Dist.
Case DateDecember 29, 1998

Page 975

30 F.Supp.2d 975 (E.D.Ky. 1998)

Somer CHIPMAN, et al., Plaintiffs,



Civil Action No. 98-180.

United States District Court, E.D. Kentucky.

Dec. 29, 1998

Page 976

Sara L. Mandelbaum, David A. Friedman, A.C.L.U. of Kentucky, Louisville, KY, for Plaintiffs.

Donald J. Ruberg, Suzanne Cassidy, O'Hraa, Ruberg, Taylor, Sloan & Sergent, Covington, KY, for Defendants.


BERTELSMAN, District Judge.

This is a Title IX, 20 U.S.C. Sections 1681-88, action for discrimination in educational programs. In addition, plaintiffs allege that defendants violated their state and federal constitutional rights to equal protection and unduly interfered in their state and federal rights to privacy and personal autonomy.

The matter is now before the court on the motion of plaintiffs for a preliminary injunction. No other issues will be discussed at this time. 1 All parties declined to present any evidence and the matter is submitted to the court on the record, including the affidavits of several individuals.

The plaintiffs are Somer Chipman and Chasity Glass. The defendants are the Grant County School District, James Simpson, Superintendent of Grant County School District, and members of the Grant County Board of Education, namely, James Colson, Marvin Smoot, Janet Faulkner, Jim Jones and Billie Cahill.


The National Honor Society of Secondary Schools (NHS) recognizes high school students for outstanding achievement. High schools may establish a local NHS chapter upon paying a chartering fee and annual initiation fee to the NHS. Chapters are required to adopt the NHS constitution, but each chapter may establish different admission criteria so long as those criteria are consistent with the NHS constitution. A pertinent provision of the NHS handbook provides:

It should be noted that, under provisions of federal law, pregnancy--whether within or without wedlock--cannot be the basis for automatic denial of the right to participate in any public school activity. It may properly be considered, however, like any other circumstance, as a factor to be assessed in determining character as it applies to the National Honor Society. But pregnancy may be taken into account in determining character only if evidence of paternity is similarly regarded.

NHS handbook at 29, attached to doc. # 14 as exh. 2.

Grant County High School has established a local NHS chapter. As required by the

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NHS constitution, those offered admission to the Grant County NHS must demonstrate outstanding scholarship, service, leadership, and character. Although the NHS permits anyone with a grade point average of 3.0 or better to be considered for admission, the Grant County chapter requires a grade point average of at least 3.5.

Plaintiffs are both seniors at Grant County High School. Both plaintiffs have grade point averages substantially above 3.5. On April 23, 1996, Chasity Glass gave birth to a daughter. On June 1, 1998, Somer Hurston (nee Chipman) gave birth to a daughter. As early as November 1997, it was generally known around Grant County High School that Ms. Hurston was pregnant. In the Spring of 1998, when plaintiffs were juniors, the GCNHS selection committee voted to offer NHS membership to every junior with a 3.5 or better grade point average except the plaintiffs. There is strong evidence that the GCNHS selection committee considered the fact that each plaintiff had engaged in premarital sexual activity and had given birth to a child out of wedlock. There is further strong evidence that the selection committee did not ask those students offered admission to the NHS--male or female--if they had engaged in premarital sexual activity. 2 However, the evidence before the court indicates that the committee would have considered any evidence of paternity in evaluating the character of male students, but that it was unlikely that any such knowledge would come before the committee in any way but rumor and gossip.


1. Standards for Preliminary Injunction.

When entertaining a motion for a preliminary injunction, a court must consider the following factors:

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)(quoting McPherson v. Michigan High School Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997)). None of these factors is mandatory, but the court must balance these criteria in determining whether a preliminary injunction should issue. Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions, 134 F.3d 749 (6th Cir. 1998). Consideration of these factors indicates that the plaintiffs' motion for preliminary injunction should be granted.

2. Likelihood of Success on the Merits.

Of the factors listed above, probability of success is the most important.

Title IX prohibits sex discrimination in any educational program or activity receiving federal financial assistance. Specifically, Title IX provides in part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

20 U.S.C. § 1681(a). Regulations promulgated under Title IX unequivocally apply its prohibition against sex discrimination to discrimination on the basis of pregnancy and parental status, stating:

A recipient [of federal funds, such as Grant County Schools] shall not apply any rule concerning a student's actual or potential parental, family, or marital status which treats students differently on the basis of sex.

34 C.F.R. § 106.40(a).

34 C.F.R. § 106.40(b) specifically provides:

(b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth,

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false pregnancy, termination of pregnancy, or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient. 3

The issue, then, is whether refusing to admit the plaintiffs to the GCNHS because they engaged in premarital sex and became pregnant constitutes exclusion "on the basis of pregnancy." Three prior cases have addressed the issue of exclusion from a NHS chapter due to pregnancy or premarital sexual activity.

In the most recent of the three and the only circuit court decision on this issue, the court determined that the plaintiff was dismissed from the NHS not because she became pregnant but because she had engaged in premarital sex. Pfeiffer v. Marion Ctr. Area Sch. Distr., 917 F.2d 779 (3rd Cir. 1990). In Pfeiffer, the court concluded that, as long as both genders were treated similarly with regard to premarital sex, the pregnant student could properly be dismissed from the NHS because "[r]egulation of conduct of unmarried high school student members is within the realm of authority of the National Honor Society given its emphasis on leadership and character." Pfeiffer, 917 F.2d at 784. The court emphasized the requirement that the genders be treated similarly when it remanded the case to the trial court for consideration of testimony from a male student that he had fathered a child while a member of the NHS, yet had not been asked to resign from the chapter. Id. at 785-786.

In an earlier case from the Central District of Illinois, the court reached a contrary conclusion. In Wort v. Vierling, Case No. 82-3169, slip op. (C.D.Ill. Sept. 4, 1984), aff'd, 778 F.2d 1233 (7th Cir. 1985), the court concluded that the plaintiff had been dismissed from the National Honor Society on the basis of her pregnancy rather than the premarital sex that resulted in the pregnancy. Therefore, because only women can become pregnant, the dismissal necessarily constituted unequal treatment based on gender and violated the Equal Protection Clause...

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