IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PARKERSBURG DIVISION

JANE DOE, et al.,

Plaintiffs,

v.

CIVIL

WOOD COUNTY BOARD OF EDUCATION, et al.,

Defendants.

ACTION NO. 6:12-cv-04355

MEMORANDUM OPINION AND ORDER

Pending before the court is the plaintiffs’ motion for preliminary injunction [Docket 4]. A

hearing was held on A ugust 27, 2012. The court ho lds today that the option to opt out of a

single-sex education program does not satisf y the requirem ent under the 2006 United States

Department of Education regulations that sing le-sex programs be “completely voluntary.” 34

C.F.R. § 106.34(b)(1)(iii). However, the court also finds that the prelim inary relief requested by

the plaintiffs is overly broad. Accordingly a nd for the reasons set forth below, the court

GRANTS in part and DENIES in part the plaintiffs’ motion for preliminary injunction.

I. Background and Procedural History

This case arises from the single-sex program adopted by Van Devender Middle School

(“VDMS”) in a commendable attempt to improve the education of its students. The plaintiffs are

a mother, Jane Doe, and her three daughters, Anne Doe, Beth Doe, and Carol Doe.

1 The

daughters all attended the sixth grade at VDMS for the 2011-12 school year, and are currently

attending the seventh grade for the 2012-13 sc hool year. Defendant W ood County Board of
1 The plaintiffs are proceeding under pseudonym.
1

Education (“WCBE”) is the enti ty responsible for the administ ration of public schools within Wood County, W est Virginia, including V DMS, and has overseen and approved the implementation of sex-separated classes at VDMS. Def endant J. Patrick Law is th e superintendent of the Wood County Schools, and is responsible for the adm inistration of all schools within the W ood County School District, including VDMS. Defendants Stephen Taylor and Penny Coleman are the Principal and Vice Prin cipal, respectively, of VDMS, and have both overseen and implemented the sex-separated classes at VDMS.
VDMS is one of five public middle schools in Parkersburg, West Virginia. Students from grades six through eight are assigned to m iddle schools by WCBE based on the location of their residence. In 2010, the WCBE approved the single-sex educa tion program at VDMS. The program was adopted for sixth grade classes in the 2010-11 school year, expanded to the seventh grade in 2011-12, and expanded to the eighth grade for the 2012-13 school year. Classes for reading, math, social studies, and science are separated by gender, while classes in other subjects are coeducational.
In May 2012, the Am erican Civil Liberties Union sent a le tter to J. Pa trick Law of the WCBE regarding its opinion that the single-sex program at VDMS violates th e Constitution and Title IX. In July 2012, the ACLU followed up on the letter, stating its in tention to bring suit o n behalf of the plaintiffs. On August 15, 2012, t he plaintiffs filed this action alleging that the single-sex classes at VDMS violated the Equal Pr otection Clause of the Fourteen th Amendment and Title IX, 20 U.S.C. § 1681, as interpreted by the United States Depart ment of Agriculture and Department of Education in their respective regulations, 7 C.F.R. § 15a.34 and 34 C.F.R. § 106.34. On the sam e day, the plaintiffs filed a Motion for a Tem porary Restraining Order and Preliminary Injunction.
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On August 19, 2012, the court held a hearing on the motion for a te mporary restraining order. During that hearing, significant questions were raised regarding whether the single-sex classes at V DMS were voluntary, and whether substantially equa l coeducational classes were offered at the school. The court denied the plaint iffs’ motion for a tem porary restraining order, holding that the plaintiffs had not made a “clear showing” that they were likely to succeed on the merits. The court noted that the issues of voluntariness and subs tantial equality needed further development. The court also held that the public interest would not be furthered by granting a temporary restraining order at the time due to the disruption that it would cause to the students at VDMS if the school was forced to m ake a last-minute shift to coeducational classes. However, the court further noted that:
If the record developed [at the August 27, 2012 prelim inary injunction hearing] shows that the plaintiffs are in fact likely to succe ed on the merits, the Constitution and civil rights law will requ ire [the altering of VDMS’s scheduling to make it coeducational]. Teachers and schools should be innovative, and should be encouraged to experiment in their attempts to improve the education; however, they must do so within the lines drawn by the Constitution and by the law. [Docket 24, at 2.] On August 27, 2012, the court held a hearing on the instant m otion for preliminary injunction. II. Preliminary Injunction The United States Suprem e Court and the Unite d States Court of Appeals for the Fourth Circuit have provided district courts with a precise analytical framework for determining whether to grant preliminary relief. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. FEC , 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds, 130 S.Ct. 2371 (2010). First, the plaintiffs m ust make a clear showing that they will likely succeed on the merits. The Real Truth About Obama, Inc. , 575 F.3d at 346. Second, the plaintiffs must m ake a clear show ing that they are like ly to be ir reparably harmed absent
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preliminary relief. Id. Third, the plaintiffs must show that the balance of equities tips in the ir
favor. Id. Finally, the plaintiffs must show that an injunction is in the public interest. Id. All four
requirements must be satisfied. Id.
A. Likelihood of Success on the Merits
The plaintiffs assert that the single-sex classes at VDMS violate the Equal Protection
Clause of the Fourteenth Amendment and Title IX, 20 U.S.C. § 1681. In 2006, the U nited States
Department of Education (“Departm ent of Edu cation”) issued regulations authorizing public
schools to offer single-sex education options under certain, specific conditions:
(i) Each s ingle-sex class or extracu rricular activity is ba sed on the re cipient’s important objective—
(A) To i mprove educational achievem ent of its students, through a recipient’s overall established poli cy to pro vide diverse educational opportunities, provided that the singl e-sex nature of the class or extracurricular activity is substantially related to achieving that objective; or (B) To m eet the particular, identified educational needs of its students, provided that the single-sex nature of the class or extracurricular activity is substantially related to achieving that objective; (ii) The recipient implements its objective in an evenhanded manner; (iii) Student enrollment in a sin gle-sex class or extracurricu lar activity is completely voluntary; and (iv) The recipient provides to all ot her students, includ ing students of the excluded sex, a substantially equal coeducational class or extracurricular activity in the same subject or activity.
34 C.F.R. §§ 106.34(b)(1)(i)-(iv) (emphasis added). 2 Moreover, the regulations provide several
factors that the Departm ent considers when de termining whether c lasses or ex tracurricular
activities are substantiall y equal. 34 C.F.R. § 106.34(b)(3). Finally, the regula tions provide for
periodic evaluations by the sc hool every two years “to ensure that single-sex classes or
extracurricular activities are ba sed upon genuine justif ications and do not rely on overly broad
2 The language in the regulations refers to “the recipient,” which is “any educational program or activity receiving Federal financial assistance” in Title IX. 20 U.S.C. § 1681. The WCBE and its schools, including VDMS, receive federal funds from, inter alia, the Department of Education, and are thus recipients subject to the Department of Education regulations.
4

generalizations about the different talents, capacities, or prefer ences of either sex.” 34 C.F.R.
§ 106.34(b)(4). The D epartment of Education re gulations thus establish some authority
permitting a narrow exception to the general ru le of coeducation, to allow schools to experiment
with single-sex programs to improve educational achievement. See Doe ex rel. Doe v. Vermilion
Parish Sch. Bd., 421 F. App’x 366, 369 (5th Cir. 2011) (“Th e Department of Education and the
Department of Justice have filed an amicus brief . . . describing these regulations as permitting a
narrow exception to the general rule of coeducation.”). The language in these regulations closely
tracks the le gal standards established by the United States Suprem e Court in United States v.
Virginia, 518 U.S. 515 (1996).
i. The Plaintiffs are Likely to Succeed on Their Title IX Claim Because Requiring Parents to Opt Out of Single-Sex Classes does not Make the Program Completely Voluntary. Rather, Affirmative Assent by the Parents is Required.
The Department of Education did not define th e phrase “completely voluntary” when it
adopted the 2006 regulations. Howe ver, the discussion leading up to the adoption of the
regulation, particularly subsection (iii), provides some insight on the meaning of the phrase. The
discussion first states that:
The proposed regulations in § 106.34(b)(1)(ii) were intended to require recipients to offer sin gle-sex classes on ly on a completely voluntary basis, by requiring a recipient to provide a coeducational class in the same subject, in conjunction with the requirement in § 106.34(a) that a reci pient may not re quire participation in classes on the basis of sex.
Nondiscrimination on the Basis of Sex in Educa tion Programs or Activities Receiving Federal
Financial Assistance, 71 Fed. Reg. 62530, 62537 (Oct. 25, 2006). The discussion then states:
In order to ensure tha t participation in any single -sex class is co mpletely voluntary, if a single-sex class is of fered, the recipient is str ongly encouraged to notify parents, guardians, and students about their option to enroll in either a single-sex or coeducational class and receive authorization from parents or guardians to enroll their children in a single-sex class.
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Id. (emphasis added). The court holds today that the Department of Education regulations require an affirmative assent by parents or guardians before placing children in single-sex classrooms. Such affirmative assent would preferably come in the form of a written, signed agreement by the parent explicitly opting into a single-sex program. An opt-out pr ovision is insuf ficient to meet the requirement that single-sex classes be “co mpletely voluntary” for seve ral reasons. First, the above discussion leading to the ad dition of th e “completely voluntary” language strongly suggests that this outcome is proper. The regulations closely track the language of United States v. Virginia, yet the co mmentators and draf ters ultimately felt the ne ed to add a n additional element of voluntariness, “clearly requiring that student participat ion in a single-sex class m ust be completely voluntary.” 71 Fed. Reg. at 62537.
Moreover, because single-sex classes are, by their very nature, a gender class ification, it makes perfect sense to require the parent or guardian’s clear and affirmative assent. W hile a failure to opt out may be a legal substitute for agreement in some other areas of the law, such as membership in class actions, 3 presuming that parents or guardians have enrolled their child in a single-sex class com pletely voluntarily because they failed to op t out would und ermine the purpose of Title IX to prevent discrimination based on gender.
Finally, this reading of the Departm ent of Education regulations is supported by the meaning of the word “voluntary.” Black’s Law Di ctionary defines “volunt ary” as “[d]one by design or intention.” B LACK’S LAW DICTIONARY 1569 (7th ed. 1999). The first word in the definition, “done,” indicates th at the actor m ust do som ething—in other words, an affir mative act. The phrase “by design or intent ion” indicates that the actor must have decided upon the act
3 See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (“We reject petitioner’s contention that the Due Process Clause of the Fourteenth Amendment requires that absent plaintiffs affirmatively ‘opt in’ to the class, rather than be deemed members of the class if they do not ‘opt out.’”).
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that was taken. In other words, the definition of the word “voluntary” suggests that one cannot be

said to have agreed to something voluntarily if they have not taken an affirm ative act to agree to

it.

The evidence, even as p resented by the defendants, shows that the single-sex program at

VDMS was presented solely in an opt-out m anner to parents and guardians of the children

attending VDMS. Counsel for the defendants referen ced the opt-out form sent to the parents via

mail this year and the opt-out script sent to

the parents via telephone this year. Cross-

examination of Jane Doe focused in part on her ability to opt out. Dir ect examination of the

defendant Stephen Taylor focused in part on th e opt-out forms sent to parents for the 2010-11,

2011-12, and 2012-13 school years. The defense o ffered an exhibit entitled “Van Devender

Middle School Opt-out for m,” which states, in part: “My signature on this form indicates that I

am requesting that m y child be p laced in a co ed class.” [Def. Ex. 6 ( emphasis added).] At no

point do the defendants dispute th at the form of notice given to the parents was that of opting

out, rather than opting in.

The court also finds significant the tim ing of the opt-out notices sent to the parents and

guardians. The record reflects that letters suggesting that parent s may opt out of the single-sex

program, and the opt-out form s, were not made available to the parents a nd guardians until very

close to the beginning of each school year. For the 2012-1 3 school year, the record establishes

that a meeting was held on August 16, 2012 with a form giving parents the option to opt-out. A

phone recording was sent to pare nts the night before school bega n, and a letter wa s sent on the

day that school began on August 23, 2012. For th e 2011-12 school year, th e record shows that

forms were m ailed out on or about August 18, 2011, while the school year was scheduled to

begin approximately a week later. Testimony from Carol Doe reveals that she had already m ade

7

the cheerleading team before any option to opt out was presented to the parents. The close proximity of the notices to the beginning of the school year, after students have already enrolled, suggest that their choice was not fully voluntary. As the record reflects, students opting out of single-sex classes would be sent to a different school if not enough students at VDMS opted to take a coeducational class.
The court does not decide the question of wh ether single-sex classes violate the E qual Protection Clause. Rather, the cou rt finds, as discussed, that th e defendants have not m et their burden to ensure that single-sex classes at VDMS are “com pletely voluntary” under the Department of Education regulations. Thus, the c ourt finds that the plai ntiffs are likely to succeed on the merits of their Title IX claim.
B. The Plaintiffs are Likely to Suffer Irreparable Harm Absent Preliminary Relief
The court finds that the plaintiffs’ continue d participation in sing le-sex classes without having completely voluntarily chosen that option constitutes irreparable harm. Other courts have found that a violation o f Title IX m ay constitute irreparable harm , and this court agrees. See McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 301-02 n.25 (2d Cir. 2004); Roberts v. Colo. State Bd. of Agric. , 998 F.2d 824, 833 (10th Cir. 1993). Here, the plaintiffs have shown that thei r participation in single-sex cla sses was not completely voluntary, and having them remain in single-sex classes would be a continuing violation of Title IX. See id.
The court does recognize the conflicting te stimony between the plaintiffs and Ms. Hahn, one of the teachers that testified for the defense. Ms. Hahn’s test imony indicated that she did not engage in gender stereotyping, but instead taught her classes according to the individual needs of the children. The court does not su ggest that te achers should teach in any particular way, and appreciates the teachers’ attempts to find new ways to teach and engage their students. The court
8

emphasizes that the ir reparable harm in this case is not the way the child ren at VDMS are taught—the court does not decide that issue—but rather the lack of a voluntary choice to participate in single-sex classes as required under the Department of Education regulations.
C. The Balance of Equities Tips in the Plaintiffs’ Favor The court finds that the injury to th e plaintiffs outweighs the harm to the defendants in granting a preliminary injunction. The defendants would suffer the administrative inconvenience of revising course schedules after the school year has already begun to provide for coeducational classes. This inconvenience will not be a grea t burden to the defendants. The Principal of VDMS, Stephen Taylor, testified during the Augu st 18, 2012 hearing that the school already has a coeducational program ready to be implemented. Furthermore, the WCBE and VDMS certainly have the experience and ability to run coeducational classes, as they have done for years prior to the implementation of the single-sex program in 2010. On the other hand, absent a prelim inary injunction, the plaintiffs would continue to su ffer from their involuntary placement in single-sex classrooms. Moreover, the plaintiffs Anne Doe, Beth Doe, and Carol Doe will experience their middle school years only once during their life. D. The Public Interest Favors a Preliminary Injunction The court finds that a prelim inary injunction would be in the p ublic interest. A preliminary injunction would preven t the continued violation of th e plaintiffs’ Title IX rights, and that of any other parent who m ay not have opted out, but would not have opted in if they were properly presented with that option. The pub lic interest is certainl y served by prom oting compliance with Title IX. See Barrett v. West Chester Univ. of Pa. of State Sys. of Higher Educ. , No. 03-cv-4978, 2003 WL 22803477, at *15 (E.D. Pa. Nov. 12, 2003); Cohen v. Brown Univ. , 809 F. Supp. 978, 1001 (D.R.I. 1992).
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The rationale behind a grant of a prelim inary injunction has been explained as preserving the status quo so that the court can render a m eaningful decision after a trial on the merits. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991); Feller v. Brock, 802 F.2d 722, 727 (4th Cir. 1986). The status quo, however, does “not consist of a photographic replication of the circu mstances existing at the moment suit was f iled, but ra ther the last peaceable uncontested status that existed before the dispute arose.” Faulkner v. Jones, 10 F.3d 226, 237-38 (4th Cir. 1993) (Ham ilton, J. dissenti ng). Here, the court finds that the “las t peaceable uncontested status” was when VDMS offe red coeducational classrooms, particularly as coeducational education is still the general rule. III. Scope of the Preliminary Injunction
The plaintiffs, in essen ce, take th e position that no single-sex classes would ever withstand scrutiny under the Con stitution or Title IX. The court finds this argument unpersuasive. Specifically, the court notes that:
No legal authority supports the conclusi on that optional single-sex program s in public schools are ipso facto injurious to the school s’ students. Unlike the separation of public sch ool students by race, th e separation of students by sex does not give rise to a finding of constitutional injury as a matter of law. A.N.A. ex rel. S.F.A. v. Breckinr idge Cnty. Bd. of Educ. , 833 F. Supp. 2d 673, 678 ( W.D. Ky. 2011). In fact, the United States S upreme Court has found exactly the opposite of what the plaintiffs suggest. See United States v. Virginia , 518 U.S. at 533 & n.7 (stating that “[t]he heightened review s tandard our p recedent establishes does not make sex a proscribed classification,” and not questioning Virginia’s “prerogative evenhandedly to support diverse educational opportunities.”). Rather, if the school meets the heightened scrutiny set forth in United States v. Virginia , single-sex classes can certainly be constitu tional. Similarly, the Department of Education also disagrees with th is view: the 2006 regulati ons explicitly allow for
10

a narrow exception to the general rule of co educational classes, and schools can certainly avoid violating Title IX in implementing single-sex classes by complying with these regulations.
Based on this position, the plaintiffs ask fo r preliminary relief not only to enjoin the defendants from segregating VDMS based on sex, but also to enjoin the implementation of any gender-based training techniques at the school. The court is not willing to go this far. The court sees no reason to enjoin the defendants from implementing single-sex education programs and single-sex classrooms as long as they are acting within the boundaries set by the Constitution and Title IX; it is only to the extent that VDMS’s current single-sex program violates the law that the defendants must be enjoined. IV. Conclusion
The court again em phasizes that its deci sion today rests on the requirement of the Department of Education regulations that sing le-sex programs be “completely voluntary.” 34 C.F.R. § 106.34(b)(1 )(iii). The court does not subs titute its judgment for that of local school administrators and teachers regarding the bene fits or drawbacks of single-sex education. However, the court does note that the science behi nd single-sex education appears to be, at best, inconclusive, and certain gender-based teaching techniques based on stereotypes and lacking any scientific basis may very well be harmful to students. Eve n Professor Salomone, the exp ert witness called by the d efense, agreed with the ACLU on the issue of brain research—that it’s based on the rationale of pseudoscience—and sugge sted that many schools were “led astray” by the teachings of Dr. Le onard Sax. Professor Salo mone served as an expert witn ess for the defense not because sh e agreed with the gender-based teaching techniques, but because she felt that the ind ividual teachers at VDMS were, in fact, not teaching students based on gender stereotype, despite the training given by Dr. Sax and David Chadwell.
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The court strongly believes that educators should be in char ge of educating, and strongly encourages teachers an d schools to adopt i nnovative learning tech niques to improve our struggling education system. No one is better suited to dev elop effective teaching methods than our public school teachers. Th e teachers, through their under appreciated service in the classroom, are in the best position to determ ine what it takes to reach their students in ways that no laws or regulations can anticipate. It is admirable that the teachers at VDMS are attempting to find different ways to connect with their students.
Thus, the court does not wish to interfere with or stifle innova tion in our education system. However, it is the court’s duty to ensu re that the governm ent complies with the law. Without making any findings regarding the evid ence heard on the m erits of VDMS’s single-sex classes, or single-sex curricula generally, the co urt finds that the requirem ents set forth by the Department of Education under Title IX that single-sex programs be “com pletely voluntary” means that there m ust be unequivo cal assent to participation given by parents of all students involved. Lacking that assent, a st udent must have the “substantially equal” alternative promised by the regulations, although this court declines to define today what that alternative must entail.
Because the court FINDS, for the reasons stated above , that VDMS’s program was not completely voluntary, the plaintiffs’ motion for preliminary injunction [Docket 4] is GRANTED in part and DENI ED in part. The court hereby ENJOINS the defendants from separating students into single-sex classes at Van Devender Middle School for the remainder of the 2012-13 school year, and unless and until any single-sex program offered meets the requirements of the Constitution and Title IX, in particular the Department of Education regulations as interpreted by the court today. This injunction will take eff ect at the beginning of the school day on Monday, September 3, 2012.
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The court DIRECTS the Clerk to send a copy of this Or der to counsel of record and any unrepresented party. The court further DIRECTS the Clerk to post a copy of this published opinion on the court’s website, www.wvsd.uscourts.gov.
ENTER: August 29, 2012
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

– – – – – – – – – – – – – – – – – – – –– – – – – – – – – – X

:

: Civil Action No:

JANE DOE, individually and as next friend to her

:

minor daughters, ANNE DOE, BETH DOE and

: ECF Case

CAROL DOE,

:

: Honorable

Plaintiffs,

:

:

v.

:

:

WOOD COUNTY BOARD OF EDUCATION,

:

J. PATRICK LAW, Superintendent, in his Official

:

Capacity, STEPHEN TAYLOR, Principal, Van

:

Devender Middle School, in his Official and Individual :

Capacity, and PENNY TONELLI COLEMAN, Former :

Assistant Principal of Van Devender Middle School, :

in her Individual Capacity,

:

:

Defendants.

:

:

:

– – – – – – – – – – – – – – – – –– – – – – – – – – – – – – X

COMPLAINT 1. This is an action under the Fourteenth Amendment’s Equal Protection Clause (pursuant to 42 U.S.C. § 1983), Title IX of the Education Amendments of 1972 (“Title IX”) and the Title IX implementing regulations of the United States Departments of Education and Agriculture challenging unlawful sex discrimination at the Van Devender Middle School (“Van Devender”) in Parkersburg, West Virginia. 2. The Plaintiffs are a mother and her three daughters. The daughters are rising seventh grade students at Van Devender Middle School in Parkersburg, West Virginia. The three minors are acting by and through their mother. Plaintiffs bring this

action because the Defendants, from 2010 through 2012, have unlawfully separated girls and boys attending Van Devender for reading, math, social studies and science in certain grades.
3. Defendants implemented the sex separation program at Van Devender based on impermissible and inaccurate stereotypes about purportedly different learning capacities and preferences of boys and girls, and, specifically, the theory that boys’ and girls’ brains develop so differently that they are best taught separately, using teaching methods that are tailored to those presumed differences.
4. Upon information and belief, Defendants intend to continue to separate students on the basis of sex in core subjects and to expand the scope of the sex separation during the 2012-2013 school year, which begins on August 29, 2012.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343 because this action raises federal questions and seeks to redress the deprivation of rights under Title IX, 20 U.S.C. §§ 1681–1688, and the Fourteenth Amendment to the U.S. Constitution, pursuant to 42 U.S.C. § 1983. 6. Venue is proper in this district under 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claims took place in this district and because some of the Defendants reside in this district. 7. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. A declaration of the law is necessary and appropriate to determine the parties’ respective rights and duties.
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PARTIES 8. Plaintiff JANE DOE is a Resident of Parkersburg, West Virginia. Doe is the mother of five children who have attended, currently attend, or will in the future attend Van Devender Middle School. Plaintiff Jane Doe will have at least one child attending Van Devender until 2014. As a result of the sex separation policies implemented at Van Devender, three of her daughters have already been discriminated against on the basis of sex and have been denied educational opportunities, in violation of the law. 9. Based on the Wood County School Board’s past actions and its members’ stated intention to continue sex separation in the future, Jane Doe expects that her three daughters who are currently enrolled at Van Devender as well as her youngest child who will attend Van Devender in the future will face discrimination on the basis of sex and the denial of educational opportunities, in violation of the law, unless the sex separation policies at Van Devender are permanently enjoined. 10. Jane Doe has no intention of moving to another home outside of Parkersburg prior to all of her children graduating from Van Devender. 11. Plaintiff ANNE DOE is a minor child who attended the sixth grade at Van Devender for the 2011-2012 school year. Because she is a minor, Anne Doe appears through her mother Jane Doe. Plaintiff Anne Doe intends to enter the seventh grade at Van Devender for the 2012-2013 school year, which commences on August 23, 2012. 12. Plaintiff BETH DOE is a minor child who attended the sixth grade at Van Devender for the 2011-2012 school year. Because she is a minor, Beth Doe appears through her mother Jane Doe. Plaintiff Beth Doe intends to enter the seventh
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grade at Van Devender for the 2012-2013 school year, which commences on August 23, 2012.
13. Plaintiff CAROL DOE is a minor child who attended the sixth grade at Van Devender for the 2011-2012 school year. Because she is a minor, Carol Doe appears through her mother Jane Doe. Plaintiff Carol Doe intends to enter the seventh grade at Van Devender for the 2012-2013 school year, which commences on August 23, 2012.
14. Defendant WOOD COUNTY BOARD OF EDUCATION (“WCBE”) is the entity responsible for the administration of public schools within Wood County, West Virginia, including Van Devender, the school which the WCBE has designated as the middle school for the Doe family based on the location of their home. At all relevant times, the WCBE has overseen and approved the implementation of sex separated classes at Van Devender. The WCBE is a political entity capable of suing and being sued.
15. DEFENDANT J. PATRICK LAW is Superintendent of the Wood County Schools. Defendant Law is responsible for administration of all schools within the Wood County School District, including Van Devender. He is sued in his official capacity.
16. DEFENDANT STEPHEN TAYLOR is the Principal of Van Devender. He reports directly to Superintendent Law. At all relevant times, Defendant Taylor has directly overseen and implemented sex separated classes at Van Devender. He is sued in his individual and official capacity.
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17. DEFENDANT PENNY TONELLI COLEMAN was the Assistant Principal of Curriculum and Instruction of Van Devender at the time the single-sex program was conceived and planned. At the time she was known as Penny Tonelli. She reported directly to Principal Taylor. She is sued in her individual capacity.
FACTUAL ALLEGATIONS A. The WCBE’s Approval of Single-Sex Classes at Van Devender
18. Van Devender is one of five public middle schools in Parkersburg, West Virginia. Students attend Van Devender for grades six through eight. Students are assigned to middle schools by WCBE based on the location of their residence.
19. The separation of students on the basis of sex at Van Devender Middle School was first proposed in 2008, when the school received a private grant for “Student Educational and Economic Development Success.”
20. Defendants Taylor and Tonelli Coleman worked together on planning the single-sex program through the course of the 2008-2009 and 2009-2010 school years.
21. In January 2009, Defendant Tonelli Coleman invited Leonard Sax, a private consultant and nationally known proponent of single-sex education, to submit a proposal for a two-day workshop for teachers who were or soon would be leading singlesex middle school classrooms.
22. Sax is an author and former family physician, and is the founder and Executive Director of the National Association for Single-Sex Public Education (“NASSPE”).
23. On March 5, 2009, in response to a phone call from Defendant Tonelli Coleman, Sax sent an email to Defendant Tonelli Coleman with the subject
5

“checklist for LAUNCHING a gender-separate program” in which he advised that Tonelli Coleman arrange for a two-day workshop to train teachers and warned that “[i]f teachers don’t have this training or comparable training, then the success of your program is just a roll of the dice, and you’re building on sand.”
24. On June 16, 2009, Sax sent an email to Defendant Tonelli Coleman regarding upcoming plans for a two-day workshop to be held on August 17 and 18, including a training session for teachers and a parent information session, and attaching a “checklist” for public schools preparing to launch single-sex classrooms.
25. On August 17 and 18, 2009, the school held two days of training and information sessions for teachers, administrators, and parents with Sax.
26. In March 2010, Defendants Tonelli Coleman and Taylor prepared to present a proposal to the WCBE seeking approval to institute single-sex classes for all incoming sixth graders at Van Devender Middle School for reading, math, social studies and science starting at the beginning of the 2010-2011 school year.
27. The WCBE formally approved the proposal at its regularly scheduled meeting on or around March 9, 2010.
28. The program was initiated at the start of the 2010-2011 school year for all incoming sixth graders for reading, math, social studies and science. B. The Lack of an Adequate Justification for the Single-Sex Education Program
at Van Devender 29. The stated justification for the single-sex education program at
Van Devender, as presented to the WCBE, was that students of both sexes were lagging behind their peers in Wood County based on the percentage of boys and girls testing as
6

“proficient” on the state standardized WESTEST assessment exam. The program’s stated “mission” was to “deliver a learning experience based on gender diversity.”
30. The sex separation at Van Devender was explicitly premised on generalizations about the supposedly different brains and learning styles of boys and girls.
31. In the March 2010 presentation to the WCBE seeking approval for the single-sex program in the sixth grade for the 2010-2011 school year, Van Devender officials presented PowerPoint slides including claims that “[r]esearchers at the National Institute of Mental Health found that the various regions of the brain develop in a different sequence and tempo in girls compared with boys” and that “[t]he areas of the brain involved in language, spatial memory, motor coordination, and in getting along with other people, develop in a different time, order, and rate in girls compared with boys.”
32. Defendants Tonelli Coleman and Taylor presented information to the WCBE stating that boys’ and girls’ brains were “hard-wired” to learn and develop differently, and that different teaching strategies worked better for boys than for girls, and vice versa.
33. The WCBE was informed that Van Devender teachers and administrators intended to tailor the teaching methods used in the boys’ and girls’ classes to these purportedly different learning capacities through the use of gender-differentiated instructional techniques.
34. Professional development for teachers on gender-differentiated instruction was a central feature of the “Business Plan” Defendants Tonelli Coleman and
7

Taylor presented to the WCBE on the proposed roll-out of the single-sex education
program at Van Devender.
35. Defendants Tonelli Coleman and Taylor did not present, and the
WCBE did not consider, any valid evidence demonstrating a relationship between the
goal of raising student achievement and the proposed separation of students on the basis
of sex at Van Devender.
36. In instituting the single-sex classes at Van Devender, Defendants
Tonelli Coleman and Taylor and the WCBE relied on faulty research, including
numerous articles espousing the view that hard-wired differences between boys and girls
necessitate the use of different teaching methods in single-sex classrooms.
37. These materials included the writings of Leonard Sax, numerous
articles printed on the NASSPE website, and materials generated by David Chadwell, a
member of the NASSPE Advisory Board. Both Sax and Chadwell offer their services for
a fee to consult with school districts regarding single-sex education.
38. For example, in one article from the NASSPE website on which
Defendants relied, Sax claims that:
 “Sex differences in learning may derive in part from basic physiological differences, such as differences in the ability to hear, and also from differences in higher-level cortical functions.”
 These differences have “major implications for best practices for teaching girls vs. teaching boys.” For example, “you want to encourage the girls, build them up, while you give the boys a reality check: make them realize they’re not as brilliant as they think they are, and challenge them to do better.”
 “A girl-friendly classroom is a safe, comfortable, welcoming place. Forget hard plastic chairs: put in a sofa and some comfortable bean bags. Let the girls address their teacher by her (or his) first name.”
 Use story problems and concrete object examples, like pine cones, for girls, but not boys when teaching Mathematics. “’Story problems’
8

are a complete flop with boys,” and “if you bring in pinecones for the boys, many of the boys will snicker and start throwing the pinecones around like hand grenades.”  “‘Gross,’ slimy, dangerous or poisonous things are also a hit with most boys, especially younger boys. Girls, on the other hand, usually prefer books which focus on dyadic or triadic relationships. . . . ‘Girls like stories about experiences that might happen over one summer and the emotional agonies that a character endures. Boys want stories with male protagonists that are exciting.’”  Consider role-playing for girls (e.g. acting out “Are You There, God? It’s Me Margaret”) and “objective and fact-oriented” assignments for boys. 39. In another published article that was relied upon in the
development and implementation of sex separation at Van Devender, Sax claims that:
For the single -sex format to lead to im provements in academ ic performance, teachers must understand the hard -wired differences in how girls and boys learn. In particular , teachers need to understand the importance of differences in how girl s and boys hear, see, and respond to different learning styles, as well as the differences in autonom ic function….
Leonard Sax, Six Degrees of Separation: What Teachers Need to Know about the
Emerging Science of Sex Differences, Educational Horizons, Spring 2006, at 190, 195.
In this article, Sax recommends that “ambient room temperature” should be six degrees
colder in boys’ classrooms, and that teachers in boys’ classrooms should “speak loudly
and in short, direct sentences with clear instructions: ‘Put down your papers. Open your
books. Let’s get to work! Mr. Jefferson, that includes you,’” while in the girls’
classrooms, they should “speak much more softly, using more first names with more
terms of endearment and fewer direct commands: ‘Lisa, sweetie, it’s time to open your
book. Emily, darling, would you please sit down for me and join this exercise?’”
40. These claims are consistent with those Sax makes in his book, Why
Gender Matters: What Parents and Teachers Need to Know About the Emerging Science
9

of Sex Differences (2005), which is referenced in the school’s presentations and on which Defendants relied in the formation and execution of the program.
41. In Why Gender Matters, Sax asserts, for example, that because of differences in the ways boys and girls process emotion, teachers of literature should not ask boys about characters’ emotions, but should only focus on objective facts in the text, while they should focus on characters’ relationships and emotions when teaching girls; and that boys do well under stress and girls do badly, so girls should not be given time limits on tests; and that boys are engaged by abstract mathematics while girls need to be given tactile objects or word problems.
42. Defendants fully embraced the theory of gender-differentiated teaching set forth in paragraphs 37 – 41, and made it central to their proposals, promotional materials, and communications with parents and the public.
43. The single-sex education program is referred to as “gender-based,” and the motto of the school, reflected in presentations to the public and to various oversight bodies was “Van Devender Middle School: Where Gender Matters.” C. Teacher Training on Gender-Differentiated Teaching Methods at Van
Devender 44. In preparation for the proposal and launch of the program, from
2009 through the initiation of the single-sex classes at Van Devender at the beginning of the 2010-2011 school year, Defendants Tonelli Coleman and Taylor began training teachers on gender-differentiated instruction techniques.
45. From 2009 through at least 2011, Defendants Tonelli Coleman and Taylor arranged for Van Devender teaching staff to attend training sessions conducted by
10

proponents of gender-differentiated teaching, including the national conference of
NASSPE.
46. At those training sessions, attendees were advised to use “gender
specific strategies” in their teaching.
47. For example, one presentation at the 2009 NASSPE conference,
which was attended by Van Devender staff, covered “Essential teaching for Boys”
advising teachers to:
 Use cool colors . . .  Go down with your tone  Provide movement to keep attention . . .  Use surname  Be clear and direct with rules and consequences  No second chances (do not argue)  Do and then talk!  In rows or stations  Ideal temperature 69°F  Whole to parts
The parallel “Essentials for teaching Girls” advised teachers to:
 Use warm colors . . .  Interpret loud or deep voices as “yelling” at them  Illustrations are colored (do not emphasize color over content)  Use surname  More time for activities . . .  Build Community  Bond through face-to-face communication  Warmer room  Parts to whole
48. The presentation instructed that boys were to be taught “[i]n pairs
(side by side)” and girls “[i]n pairs (face-to-face)”; boys were to be allowed to stand
while girls’ movement was to be limited, with “noise distractions [kept] to a minimum.”
11

49. PowerPoint presentations used at the training contain numerous
generalizations about boys’ and girls’ purportedly different capacities in the areas of
perception, learning and development. For example, another presentation at the 2009
NASSPE conference, given by Skyles Calhoun, a member of the Advisory Board of
NASSPE, included slides containing the following claims:
The Brain Develops Differently GIRLS—the language areas of the brain develop before the areas used for spatial relations and for geometry. BOYS—it is the other way around. Teaching that ignores this difference will produce boys who can’t write and girls who think they’re “dumb at math”.
The Brain is Wired Differently GIRLS—emotion is processed in the same area of the brain that possesses language. So, it’s easier for most girls to talk about their emotions. BOYS—The brain regions involved in talking are separate from the regions involved in feeling. The hardest question for a boy to answer is, “Tell me how you feel.”
Girls Hear Better The typical teenage girl has a sense of hearing seven times more acute than a teenage boy That’s why daughters complain that their fathers are shouting at them. That’s why the boy in the back of the classroom whose soft-spoken teacher calls on him responds by saying, “Huh?”.
Girls and Boys Respond Differently to Stress GIRLS—Stress impairs learning BOYS—Stress enhances learning. This is true in every mammal that scientists have studied.
50. Training on gender-differentiated instruction continued during the
2011-2012 school year.
51. In January 2011, Defendant Taylor hired David Chadwell to
conduct classroom visits and a parent workshop, and provide training sessions to teachers
and administrators at Van Devender.
12

52. Chadwell held a teacher training and parent workshop on January 19 and 20, 2011.
53. Chadwell’s training sessions included generalizations about boys’ and girls’ purportedly different brains and learning styles.
54. For example, a Chadwell presentation provided to Van Devender teachers includes the claim that boys and girls “deal with stress differently,” and goes on to assert: “Stress tends to decrease the blood flow to the brain of a girl. It goes to the ‘gut.’ Stress tends to increase the blood flow to the brain of a male and helps him remain alert and focused.”
55. Chadwell’s presentation also contained tips for tailoring instructional techniques to these presumed differences, advising, for example, that “Teachers may use rapid-fire questions with the boys. Teachers will take time to answer questions of the girls and explain directions upfront. Activities may be broken into timed segments for the boys. Girls may participate in partner or group reviews and discussion often.” D. Assignment of Students to Single-Sex Classes at Van Devender
56. Van Devender has assigned all students in the relevant grades to single-sex classes for reading, math, social studies and science.
57. At no time were parents of students assigned to the Van Devender single-sex classes asked to choose whether or not to enroll their children in a single-sex or a coeducational class for each of the core subjects of reading, math, social studies and science.
13

58. Defendants Tonelli Coleman and Taylor and members of the WCBE were aware of the legal requirement that participation in the single-sex classes be voluntary.
59. Nonetheless, Defendants did not provide the opportunity to participate in coeducational classes at Van Devender Middle School as an alternative to the single-sex classes.
60. Van Devender is not a school in which enrollment was optional from the outset, but, rather, a school to which students are automatically assigned based on their residence in a particular geographic area. E. Expansion of the Single-Sex Education Program at Van Devender
61. At a WCBE meeting in March 2011, WCBE voted to continue the sex separation of the sixth-grade class of Van Devender students as they rose into the seventh grade and to continue to mandate it for the incoming sixth-grade class of Van Devender students for the 2011-2012 school year. F. Gender-Differentiated Teaching at Van Devender
62. The gender-differentiated teaching techniques on which the singlesex program at Van Devender was premised, and on which Van Devender teachers and administrators had been trained, were employed in the boys’ and the girls’ classrooms at Van Devender once the program commenced.
63. The boys’ and girls’ classrooms differ in their physical configuration in numerous ways.
64. In the boys’ classrooms, the lights are brighter, the rooms are kept cooler, the desks are arranged side-by side, and the boys have bean bag chairs in which they are allowed to sit during classes.
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65. The girls’ classrooms are more dimly lit, the rooms are kept
warmer, the desks are arranged face-to-face, and the girls do not have bean bag chairs.
66. In the boys’ classes, students are allowed to move around during
class. The girls are expected to sit still during class.
67. On occasion, teachers have conducted the boys’ classes outdoors
so the students can be permitted to exercise and blow off steam. The girls’ classes have
not been provided with this opportunity.
68. Defendant Taylor described some of the reasoning behind the
different techniques used for boys and girls in a YouTube video:
[A]nyone who’s had children, both a boy and a girl, know that they’re different. And so what we’ve done is we’ve done a lot of research in the differences of how boys’ and girls’ brains are made up, what their interests are, what motivates them. So what we did was, we have taken those strategies and we have developed th em into boys’ classes and to girls’ classes. We know that boys have a much shorter at tention span than girls have so we have set the boys’ classr ooms up so they can get up and m ove around and lay on the floor if they want, whatever, while girls are m uch more organized; they sit at . . . rou nd tables, facing each other, sharing things, doing that sort of thing. W e know that boys like brighter lights, so we have the boys’ rooms lit a little differently than we do the girls’ rooms. Boys, we sit them side-by-side, because when they look each other in the eye it becom es more of a confront ational type thing. Girls, again, sit around tables, where they can m ake eye contact, where they can m ake relationships, and that sort of thing.
G. The Does’ Experience in Single-Sex Classes at Van Devender
69. As of the beginning of the 2011-2012 school year, Anne, Beth and
Carol Doe were assigned to Van Devender based on the location of their residence in
Wood County and automatically enrolled in the incoming sixth-grade class.
70. Jane Doe never received any notification informing her of the
opportunity for her children to participate in any coeducational classes at Van Devender
for the 2011-2012 school year.
15

71. Jane Doe never received any notification that her daughters would be placed in single-sex classes in the sixth grade at Van Devender prior to the commencement of the 2011-2012 school year.
72. Jane Doe believes that sending her children to a different school at this point in time would be academically and psychologically detrimental. Jane Doe and her children moved to a new home with a new school during the summer when the girls were between third and fourth grade, which was hard on them. Furthermore, Anne and Carol are involved in many extracurricular activities and, upon information and belief, Plaintiff’s daughters would be ineligible to participate in athletic activities for one year after transferring to another school.
73. Beth Doe has been diagnosed with Attention Deficit Hyperactivity Disorder and sometimes has trouble sitting still in class. She is not permitted to move around freely during classes in the girls’ classrooms to which she is assigned, and as a result, she is frequently reprimanded in class. Upon information and belief, similar movement in the boys’ classroom is tolerated and not reprimanded.
74. On numerous occasions, Beth has been sent to the boys’ classroom because she was “acting up.” As the only girl in the class, and deprived of the companionship of her regular classmates, she felt intimidated. She experienced this as a form of punishment, and upon information and belief, it was intended as a punishment. When Beth was sent to the boys’ classroom, she missed out on the lessons being conducted in the girls’ classroom, and she was not allowed to participate in the physical learning activities that were part of the boys’ curriculum; instead, she was required to sit
16

at a desk facing the wall. Beth’s grades have dropped substantially since she entered gender-based classes.
75. Beth Doe has experienced difficulty learning in the girls’ classes, as she learns best through the type of visual and physical learning activities she witnessed in the boys’ classes.
76. Anne Doe is legally blind and has difficulty reading in the girls’ classroom, which is kept dimmer than the boys’ classroom. Anne would benefit from brighter lights to enable her to read more easily during class, but she has not been permitted that option. When Anne asked her teachers to brighten the lights to accommodate her vision problems, her teachers refused and told her to move closer to the window.
77. Carol Doe also has poor eyesight and requires strong contact lenses and prescription glasses. Carol has difficulty reading her assignments in the all girls’ classes at Van Devender Middle School, because she cannot see well in the dimly lit girls’ classrooms. When she has requested brighter lighting in the classroom, teachers instructed her to sit near the window. After spending a year in the dimmer girls’ classrooms, Carol required stronger prescriptions for glasses and contact lenses. Carol feels uncomfortable and experiences headaches in her classrooms because her teachers maintain a warm temperature and dim lights in the girls’ classrooms as part of the gender-based program.
78. Carol Doe learns and retains information most effectively when she takes notes during teachers’ visual presentations. When Carol requested more time to take notes on individual slides during her teachers’ PowerPoint presentations, her
17

requests were denied based on the theory that girls learn better from auditory rather than visual input.
79. In addition, Anne often studies by reading and repeating her work out loud. This can be disruptive to other students because the desks in the girls’ classrooms are positioned face-to-face, and Anne’s voice sometimes disturbs the student at the desk opposite her. In some of her classes, when Anne has asked to study in a different part of the classroom so she would not disturb her classmates, the teacher has denied her request and forced her to continue sitting in the face-to-face configuration, which has hampered her ability to study and learn. Upon information and belief, in the boys’ classroom a similarly situated student would be seated beside, not facing, other students and would be allowed to move away and sit on a beanbag or elsewhere in the classroom to work. Anne has received lower grades in English this year because she has not been able to study in the way that teachers in mixed gender classrooms had previously accommodated. H. The Harms of Sex Separated Classes
80. Not all girls are alike. Research demonstrates that the psychological and learning differences between individual girls are far larger than the average psychological or learning differences between girls and boys.
81. Not all boys are alike. Research demonstrates that the psychological and learning differences between individual boys are far larger than the average psychological or learning differences between boys and girls.
82. Sex is an imprecise proxy for psychological, learning, emotional and developmental differences in adolescents. Psychological research demonstrates that, on average, boys and girls are psychologically more alike than different.
18

83. Plaintiffs have suffered and will continue to suffer concrete and irreparable injury as a result of Defendants’ illegal conduct.
84. For example, Plaintiffs are subjected to increased sex role stereotyping, which psychological research demonstrates results in anxiety that impairs functioning on tests.
85. Sex separation and gender-differentiated teaching methods like those employed at Van Devender also harm children who do not conform to the gender stereotypes advanced in these classes, such as boys who would happily engage in a conversation about literary characters’ emotions or girls who need to move around. Separation and different teaching methods tells these children that they are not “normal.”
86. Monetary damages cannot remedy the irreparable injury suffered by Plaintiffs.
87. The Defendants’ discriminatory policies and practices threaten harm to the dignity interests of Plaintiffs.
88. The Defendants’ discriminatory policies and practices have deprived and continue to threaten to deprive Plaintiffs of unique educational opportunities – including the benefits of a fully coeducational school, and of a school free from stereotypes about the way boys and girls learn and behave. The girls have been denied opportunities available only to the boys. For example, the girls are obligated to sit still in class while the boys are not and the girls are punished by reprimand or temporary expulsion from the classroom for behaving in a manner for which the boys are not punished.
19

89. These policies and practices have also deprived and threaten to continue to deprive Plaintiffs of the unique educational experiences and opportunities afforded in the single-sex classes from which they are excluded on the basis of their sex. I. Continued Expansion of the Single-Sex Education Program at Van Devender
in 2012-2013 90. On December 2, 2011, the American Civil Liberties Union of West
Virginia sent a request under the West Virginia Freedom of Information Law seeking documents and records related to the single-sex education program operated at Van Devender Middle School.
91. On May 21, 2012, the American Civil Liberties Union of West Virginia sent a letter to the WCBE identifying legal violations relating to the single-sex education program at Van Devender Middle School and requesting that the program be terminated as of the start of the 2012-2013 school year.
92. At a school board meeting on July 2, 2012, the WCBE voted to continue the single-sex education program in the sixth and seventh grades, and to expand it into the eighth grade, for the 2012-2013 school year. J. Federal Funding
93. Wood County Schools, including Van Devender, receive federal funding and are subject to the requirements of Title IX.
94. The federal funding received by the WCBE consists of funding from the U.S. Departments of Education and Agriculture.
95. The WCBE and all of its operations, including Van Devender are, therefore, subject to the Title IX regulations promulgated by the U.S. Departments of
20

Education and Agriculture. Upon information and belief, the WCBE has specifically agreed to comply with those regulations. K. Defendants’ Conduct
96. Defendants have acted and engaged in conduct as set forth in paragraphs 1 through 95 above intentionally, willfully, and in disregard of the rights of Plaintiffs.
97. Defendants have acted and engaged in conduct as set forth in paragraphs 1 through 95 above with actual notice of and deliberate indifference to the rights of Plaintiffs.
CLAIMS FOR RELIEF FIRST CAUSE OF ACTION: Equal Protection (against WCBE and Defendant Law in his Official Capacity, Defendant Taylor in his Individual and Official Capacity, and Defendant Tonelli Coleman in her Individual Capacity) 98. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through 97 above. 99. By separating classes at Van Devender by sex, Defendants have intentionally classified students by sex and discriminated amongst them on the basis of sex in violation of Plaintiffs’ right to equal protection of the laws, secured (pursuant to 42 U.S.C. § 1983) by the Fourteenth Amendment to the United States Constitution.
SECOND CAUSE OF ACTION: Title IX, against WCBE 100. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through 97 above.
21

101. By instituting sex separated classes at Van Devender, Defendant WCBE (i) has excluded Plaintiffs from educational programs and activities on the basis of their sex, (ii) has denied Plaintiffs the benefits of educational programs and activities on the basis of their sex; and (iii) has subjected Plaintiffs to discrimination on the basis of their sex, in violation of Title IX, 20 U.S.C. § 1681(a).
102. By providing classes separately at Van Devender on the basis of sex, requiring or refusing student participation in classes on the basis of the students’ sex, and subjecting Plaintiffs to discrimination on the basis of their sex, Defendant WCBE has violated Title IX as interpreted by the implementing regulations of the United States Department of Agriculture, 7 C.F.R. §§ 15a.31, 15a.34.
103. By providing different educational aid, benefits or services on the basis of sex, and/or providing aid, benefits or services in a different manner on the basis of sex, Defendant WCBE has violated Title IX as interpreted by the implementing regulations of the U.S. Department of Education in 34 C.F.R. § 106.31(b)(2).
104. By denying educational aid, benefits or services on the basis of sex, Defendant WCBE has violated Title IX as interpreted by the U.S. Department of Education in 34 C.F.R. § 106.31(b)(3).
105. By providing classes separately at Van Devender on the basis of sex, requiring or refusing student participation in classes on the basis of the students’ sex, and subjecting Plaintiffs to discrimination on the basis of their sex, Defendant WCBE has violated Title IX as interpreted by the Department of Education in 34 C.F.R. § 106.34
(1) By failing to ensure that enrollment in any sex separated course at Van Devender is substantially related to either of two objectives specified
22

by the U.S. Department of Education’s regulations, Defendant WCBE has violated the requirements of 34 C.F.R. § 106.34(b)(1)(i). (2) By failing to ensure that enrollment in any sex separated course at Van Devender is completely voluntary, Defendant WCBE has violated 34 C.F.R. § 106.34(b)(1)(iii). (3) By failing to provide all students, including students of the excluded sex, substantially equal coeducational classes in the same subjects as the sex separated classes, Defendant WCBE has violated 34 C.F.R. § 106.34(b)(1)(iv).
REQUEST FOR RELIEF Plaintiffs respectfully request that this Court: (1) Permanently enjoin Defendants from separating any class or educational program by sex; (2) Permanently enjoin all Defendants, their agents and employees, and all persons acting in concert or participation with them, including any successors and assigns, to take all affirmative steps necessary to remedy the effects of the illegal, discriminatory conduct described in this complaint and to prevent similar future occurrences; (3) Declare that the actions of Defendants violate Plaintiffs’ rights under
(i) The Fourteenth Amendment of the United States Constitution; and
(ii) Title IX of the Education Amendments of 1972;
23

(4) Award Plaintiffs monetary and nominal damages to fairly and reasonably compensate Plaintiffs for any deprivation of their rights; (5) Award Plaintiffs their expenses, costs, and reasonable attorneys’ fees under 42 U.S.C. § 1988 and any other applicable provision of law; and (6) Award other equitable and monetary relief as the Court deems just and proper.

Dated: August 15, 2012

Respectfully Submitted,

Sarah Rogers (pro hac vice pending) Staff Attorney, American Civil Liberties Union of West Virginia Foundation P.O. Box 3952 Charleston, WV 25339-3952 (304) 345-9346 srogers@acluwv.org

/s/ Roger D. Forman Law Offices of Roger D. Forman LC 100 Capitol Street Suite 400 Charleston, WV 25301 304-346-6300 rdf@citynet.net

Lenora M. Lapidus (pro hac vice pending) Galen Sherwin (pro hac vice pending) Amy Lynn Katz (pro hac vice pending) Christina Brandt-Young (pro hac vice pending) American Civil Liberties Union Foundation Women’s Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2615 LLapidus@aclu.org gsherwin@aclu.org wrp_ak@aclu.org wrp_cby@aclu.org

Roxann E. Henry (pro hac vice pending) Marissa P. Harris (pro hac vice pending) Joshua A. Hartman (pro hac vice pending) Morrison & Foerster LLP 2000 Pennsylvania Avenue, NW Suite 6000 Washington, D.C. 20006 (202) 887-1500 RHenry@mofo.com MHarris@mofo.com JHartman@mofo.com

Attorneys for Plaintiffs

24

 
 Case 6:12-cv-04355 Document 24 Filed 08/21/12 Page 1 of 2 PageID #: 517

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PARKERSBURG DIVISION

JANE DOE, et al.,

Plaintiffs,

v.

CIVIL

WOOD COUNTY BOARD OF EDUCATION, et al.,

Defendants.

ACTION NO. 6:12-cv-04355

ORDER A hearing was held o n the p laintiffs’ motion for a tem porary restraining order. The plaintiffs, Jane Doe, Anne Doe, Beth Doe, and Carol Do e filed a Motion for a Tem porary Restraining Order and P reliminary Injunction [D ocket 4] against the defendants Wood County Board of Education, J. Patrick Law, Stephen Taylor, and Penny Tonelli Coleman, to restrain and enjoin the defendants from implementing single-sex instruction at Van Devender Middle School. Based on the record before the Court on the motion for a temporary restraining order, the Court FINDS that the plaintiff has not made a “clear showing” that they are likely to succeed on the merits. See The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds , 130 S.Ct. 2371 (2010). T wo significant issues require further development before the legal ques tions presented can be resolved. The first is the v oluntariness of the single-sex classes offered at the school . The second is whether substantially equal coeducational classes are offered at the school.

Case 6:12-cv-04355 Document 24 Filed 08/21/12 Page 2 of 2 PageID #: 518
Furthermore, the Court FINDS that the public interest would not be furthered by granting a temporary restraining order. Van Devender Middle School has had its single-sex program for two years, and to alter the school ’s scheduling when classes begin later this week would disrupt the lives of the young children attending the school.
If the record developed next week shows that the plaintiffs are in fact likely to succeed on the merits, the Constitution and civil rights law will requir e this disru ption to Van Devende r Middle School. Teachers and schools should be innovative, and should be encouraged to experiment in the ir attempts to im prove the education of children; however, they m ust do so within the lines drawn by the Constitution and by the law.
The Court DENIES Plaintiffs’ motion for a temporary restraining order [Docket 4]. A preliminary injunction hearing will be held in this m atter on August 27, 2012, at 1:30 p.m. in Charleston, West Virginia. Also bef ore the Court is Pla intiffs’ Motion for Leave to Proceed Under Pseudonym [Docket 16], which is unopposed, and for reasons appearing to the Court, is GRANTED.
The court DIRECTS the Clerk to send a copy of this Or der to counsel of record and any unrepresented party.
ENTER: August 20, 2012

 
 Case 6:12-cv-04355 Document 66 Filed 10/15/12 Page 1 of 12 PageID #: 1078

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PARKERSBURG DIVISION

JANE DOE, et al.,

Plaintiffs,

v.

CIVIL

WOOD COUNTY BOARD OF EDUCATION, et al.,

Defendants.

ACTION NO. 6:12-cv-04355

MEMORANDUM OPINION AND ORDER Pending before the court is the Defendants’ Motion to Dism iss [Docket 52]. A response and reply have been filed, and the m otion is ripe for review. For the reasons set forth below, the court GRANTS in part and DENIES in part the defendants’ motion to dismiss. The motion is GRANTED as to the claim s against defendants Ta ylor and Colem an in their individual capacities and defendants Law and Taylor in th eir official capacities, and DENIED as to the remaining claims. Accordingly, the court ORDERS that th e claims against d efendants Taylor and Coleman in their individual capacities and defendants Law a nd Taylor in their official capacities be DISMISSED. I. Background and Procedural History This case arises from the single-sex cl assroom program adopted by Van Devender Middle School (“VDMS”) in a commendable attem pt to improve the educat ion of its students. The plaintiffs are a m other, Jane Doe, and her three daughters, Anne Doe, Beth Doe, and Carol

1

Case 6:12-cv-04355 Document 66 Filed 10/15/12 Page 2 of 12 PageID #: 1079

Doe.1 The daughters all attended the sixth grade at VDMS for the 2011-12 school year, and are currently attending the seventh grade for th e 2012-13 school year. Defendant Wood County Board of Education (“W CBE”) is the entity re sponsible for the adm inistration of public schools within Wood County, West Virginia, includi ng VDMS, and has overseen and approved the implementation of sex-separated classes at VDMS. Def endant J. Patrick Law is th e superintendent of the Wood County Schools, and is responsible for the adm inistration of all schools within the W ood County School District, including VDMS. Defendants Stephen Taylor and Penny Coleman are the Principal and Vice Prin cipal, respectively, of VDMS, and have both overseen and implemented the sex-separated classes at VDMS.
VDMS is one of five public middle schools in Parkersburg, West Virginia. Students from grades six through eight are assigned to m iddle schools by WCBE based on the location of their residence. In 2010, the WCBE approved the single-sex educa tion program at VDMS. The program was adopted for sixth grade classes in the 2010-11 school year, expanded to the seventh grade in 2011-12, and expanded to the eighth grade for the 2012-13 school year. Classes for reading, math, social studies, and science are separated by gender, while classes in other subjects are coeducational.
On August 15, 2012, the plaintiffs filed the in stant lawsuit alleging that the single-sex classes at VDMS violated the E qual Protection Clause of the F ourteenth Amendment and Title IX, 20 U.S.C. § 1681, as interpreted by the Depa rtment of Agriculture and Departm ent of Education in their respective regulations, 7 C.F.R. § 15a.34 and 34 C.F.R. § 106.34. On the same day, the plaintiffs filed a Motion for a Te mporary Restraining Order and Preliminary Injunction. The court denied the plaintiffs’ motion for a temporary restraining order, but granted the

1

The plaintiffs are proceeding under pseudonym.

2

Case 6:12-cv-04355 Document 66 Filed 10/15/12 Page 3 of 12 PageID #: 1080
plaintiffs’ motion for prelim inary injunction in its Memorandum Opinion and Order on August 29, 2012 [Docket 51].
The defendants subsequently filed the instan t motion to dism iss, arguing that (1) the plaintiffs’ § 1983 action should be dism issed in light of the court’s Memorandum Opinion and Order; (2) the plaintiffs’ § 1983 claims against defendants Taylor and Coleman in their individual capacities sh ould be dis missed because these d efendants are entitled to qualified immunity; (3) the plaintiffs’ § 1983 claim s against defendants Law and Taylor in their official capacities should be dism issed because they are redundant to the claim against the WCBE; and (4) the plaintiffs’ claims for dam ages against the individual defendants should be dism issed pursuant to the Eleventh Amendment. II. Legal Standard for Motions to Dismiss Pursuant to Rule 12(b)(6)
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or pleading. Giarratano v. Johnson , 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8 requires that a pleading contain a Ashort and plain statement of the claim showing that the pleader is entitled to relief. @ FED. R. CIV. P. 8. As the Suprem e Court reiterated in Ashcroft v. Iqbal , that standard Adoes not require >detailed factual allegations= but >it demands more than an unadorned , the-defendant-unlawfully-harmed-me accusation.=@ 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 ( 2007)). A[A] plaintiff=s obligation to provide the >grounds= of his >entitle[ment] to relief= requires more than labels an d conclusions, and a formulaic recitation of the elements of a cause o f action will not do. @ Twombly, 550 U.S. at 555 (citin g Papasan v. Allain , 478 U.S. 265, 286 (1986) for the proposition that Aon a motion to dism iss, courts >are not bound to accept as true a legal conclusion couched as a factual allegation=@). A court cannot accept as true legal conclusions in a
3

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complaint that m erely recite the elem ents of a cause of action supported by conclusory statements. Iqbal, 556 U.S. at 677-78. ATo survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Id. at 678 (quoting Twombly, 550 U.S. at 570). To achieve facial plausibility, the plaintiff must plead facts that allow th e court to draw the reasonable inference that the defendant is liable, and those facts must be m ore than merely consistent with the defendant =s liability to raise the claim from merely possible to probable. Id.
In determining whether a plausible claim exists, the court m ust undertake a contextspecific inquiry, A[b]ut where the well-plead ed facts do not permit the court to inf er more than the mere possibility of misconduct, the complaint has alleged—but it has not >show[n]=—>that the pleader is entitled to re lief.=@ Id. at 679 (quoting F ED. R. CIV. P. 8(a)(2)). A complain t must contain enough facts to Anudge[] [a] claim cross the line fr om conceivable to plausible. @ Twombly, 550 U.S. at 570. III. The Defendants’ Motion to Dismiss th e Plaintiffs’ § 1983 Claim in Light of the
Court’s Memorandum Opinion and Order The defendants argue that the court shoul d dismiss the plaintiffs’ § 1983 action. The defendants contend that “Plaintiffs’ sole allegation with respect to the basis for their First Cause of Action is that the classifica tion of students by sex is uncons titutional.” (Mem. in Supp. of Defs.’ Mot. to Dism iss [Docket 53], at 6). Ther efore, according to th e defendants, because the court ruled that the s eparation of students by s ex does no t violate the Constitu tion per se, the plaintiffs’ § 1983 claim necessarily fails. (See id. at 5-6). The plaintiffs respond by arguing that their Equal Protection claim was properly pleaded by alleging discriminatory treatment, and by alle ging “not merely that Defendants violated the Plaintiffs’ rights to equal protection ‘by separati ng the classes at Van Devender by sex,’ but also
4

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that they failed to comply with constitutional standards in doing so.” (Pls.’ Opp’n to Defs.’ Mot . to Dismiss [Docket 58], at 2).
To state a claim under § 1983, “a plaintiff m ust allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Adkins, 487 U.S. 42, 48 (1988); see also Crosby v. City of Gastonia , 635 F.3d 634, 639 (4th Cir. 2011). To allege a “prim a facie equal protection violation, it is enough that a pl aintiff complains of governm ental treatment dissimilar to that received by others similarly situated.” Republican Party of N.C. v. Martin , 980 F.2d 943, 953 (4th Cir. 1992). Once the plaintiff ha s sufficiently alleged this violation, the burden then shifts to the defendants to show th at the classification does not violate the Equal Protection Clause. United States v. Virginia , 518 U.S. 515, 533 (1996). For gender-based classifications, “the burden of justification is demanding and it rests en tirely on the State. ” United States v. Virginia, 518 U.S. at 533; see also Mississippi Univ. for Women v. Hogan , 458 U.S. 718, 724 (1982).
The defendants’ argument fails because it confuses the extent of the court’s ruling. To put the ruling in context, at the hearings for a temporary restraining order and preliminary injunction, the plaintiffs had, at one point, taken the position that single-sex classes could never withstand scrutiny under the Cons titution and Title IX. The court simply rejected this pos ition and ruled that single-sex classes are not un constitutional per se, because it is entire ly possible for such classes to be constitutional if the school meets the heightened scrutiny set forth in United States v. Virginia. (Mem. Op. & Order [Docket 51], at 10). However, the plaintiffs’ complaint alleges:
99. By separating classes at Van Devender by sex, D efendants have intentionally classified students by se x and discrim inated amongst them on the basis of sex in violation of Plaintiffs’ right to equal protection of the laws, secured
5

Case 6:12-cv-04355 Document 66 Filed 10/15/12 Page 6 of 12 PageID #: 1083
(pursuant to 42 U.S.C. § 1983) by the Fourteenth Amendment to the United States Constitution. (Compl. ¶ 99). In several earlier paragraphs of the complaint, incorporated by reference in the plaintiffs’ First Cause of Action, the plaintiffs allege that VDMS assi gned students in certain grades to single-sex classes in certain subjects. ( See, e.g., Compl. ¶ 2, 56).2 To survive a m otion to dismiss on the equal protection claim, the plaintiffs’ burden is to show a gender-based classification by the defendants, and the plain tiffs have done so here . Paragraph 99 of the complaint, combined with the ea rlier incorporated paragraphs, sufficiently alleges an equal protection violation to survive the motion to dism iss. Accordingly, I DENY the defendants’ Motion to Dism iss the § 1983 claim under Rule 12(b)(6). The burden now shifts to the defendants to show an “exceeding ly persuasive justification” for the s ingle-sex classes because these classes are se parated by gender. See Virginia, 518 U.S. at 533; Hogan, 458 U.S. at 724. Thus, the defendants now carry the burden of show ing “at least th at the classification serves important governmental objectives” and tha t it is “subs tantially related to the achievement of those objectives.” Virginia, 518 U.S. at 533; Hogan, 458 U.S. at 724. IV. The Defendants’ Motion to Dismiss the Plaintiffs’ § 1983 Claim Against the Individual Defendants With respect to the individual defendants, the defendants first argue that defendants Taylor and Colem an are entitled to qualified immun ity with respec t to the plain tiffs’ claims against them in their individual capacities. Th e defendants then argue that the p laintiffs’ claims against defendants Law and Taylor in their offi cial capacities should be dism issed, as these

2

I note that th e plaintiffs h ave further allege d that this gender cl assification does not meet the

heightened scrutiny in United States v. Virginia. The complaint extensively alleges, for example, that the

single-sex classes were based on the exa ct type of stereotypes ruled im permissible by the United States

Supreme Court. (See, e.g., Compl. ¶ 2, 30-32, 36, 38).

6

Case 6:12-cv-04355 Document 66 Filed 10/15/12 Page 7 of 12 PageID #: 1084
claims are redundant because the W CBE is also a defendant to the lawsuit. I address these two arguments in turn below.
A. Defendants Taylor and Coleman are Entitled to Qualified Immunity The defendants assert that defendants Ta ylor and Colem an are entitled to qu alified immunity. The defense of qualified imm unity “shields government officials perform ing discretionary functions from personal-capacity liability for civil dam ages under § 1983, insofar as their conduct does not violate clearly establis hed statutory or constitu tional rights of which a reasonable person would have known.” Brockington v. Boykins , 637 F.3d 503, 506 (4th Cir. 2011) (quoting Ridpath v. Bd. of Governors Marshall Univ. , 447 F.3d 292, 306 (4th Cir. 2006)); see also Pearson v. Callahan , 555 U.S. 223, 231 (2009). Governm ent officials are entitled to qualified immunity “unless the § 1983 claim satisfies a two-prong test: (1) the allegations, if true, substantiate a violation of a federal statutory or constitutional right and (2 ) the right was clearly established such that a reasona ble person would have know n his acts or omissions violated that right.” Brockington, 637 F.3d at 506 (internal qu otation marks omitted). The court m ay address these two elem ents in any order, and will f irst assess whe ther the rights at issu e were cle arly established. See Merchant v. Bauer, 677 F.3d 656, 661 (4th Cir. 2012). A constitutional right is “clearly established when its contours are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Ridpath, 447 F.3d at 313 (quoting Hope v. Pel zer, 536 U.S. 730, 739 (2002)). W hile the unlawfulness m ust be apparent in light of pre-existing law, “the very action in question need not have previously been held unlawful.” Ridpath, 447 F.3d at 313 (in ternal quotations omitted). “[O]fficials can still be on notice that their conduct violates establishe d law even in novel factual circum stances. The salient question is whether the state of the law at the tim e of the events in questio n gave the
7

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officials fair warning that their conduct was unconstitutional.” Id. (internal quotations and citations omitted).
The defendants focus solely on their argum ent that the right was not clearly established. The defendants discuss Doe ex re l. Doe v. Ver million Parish Sch. Bd. , 421 F. App’x 366 (5th Cir. 2011) and A.N.A. ex rel. S.F.A. v. Breckinr idge Cnty. Bd. of Educ. , 833 F. Supp. 2d 673 (W.D. Ky. 2011), the only two published legal opin ions directly discussing single-sex education prior to the instant action, and as sert that neither case clearly es tablishes that the defendants’ alleged acts would be unconstitutional or contrary to federal statute. T he plaintiffs respond by asserting that United States v. Virginia and Hogan clearly established rights that a reason able educator in defendants Taylor and Coleman’s position would have been aware of.
The court has reviewed the applicable legal authorities, and recognizes that this is a close question. It seem s that the defend ants failed to recognize that United States v. Virginia establishes standards as to the issu e of gender classifi cations generally.3 However, the Fourth Circuit has instructed co urts to identify the specific right that the plaintiffs assert at a high level of particularity, in the context of the specific facts of the case. See Merchant, 677 F.3d at 665; Swanson v. Powers, 937 F.2d 965, 969 (4th Cir. 1991). Assessing the right at the proper level of particularity, it is cle ar that no prior case law ha s directly addressed m any of the specific issues prevalent in this case, involving a school’s implementation of single-sex classes pursuant to the Department of Education regulations, 34 C.F. R. § 106.34(b), which “provide som e foundation for a public school’s attempt to experiment with single-sex education.” Vermillion, 421 F. App’x at 369. W hile United States v. V irginia and Hogan addressed the standards that gender

3

Indeed, the d efendants argue merely that the plainti ffs’ “reliance on Hogan and Virginia, with

respect to any Qualified Immunity argument, is per plexing” because “neither case addresses efforts by a

School Board to im plement Single Sex Education Classes pursuant to 34 C.F.R. § 106.3 4(b).” (Defs.’

Reply to Pls.’ Opp’n to Defs.’ Mot. to Dismiss [Docket 61], at 6).

8

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classifications must meet, these cases do not put a reasonable educator in defendants Taylor and Coleman’s positions on notice as to whether the specific single-sex classroom program adopted at VDMS would violate those standards.4 Similarly, while the Department of Education provided similar standards in its regulations, neither these standards nor any case law since the adoption of these regulations provide defendants in Taylor and Coleman’s positions on notice as to whether the single-sex classes at VDMS would violate the standards.5
In addition, while Vermillion and Breckinridge dealt directly with single-sex classrooms at schools, neither case would put the defendants on notice that the single-sex classes at VDMS would violate the plaintiffs’ rights. Vermillion and Breckinridge both largely passed on the Constitutional question. Neither case addressed the issues in the instant case on their substantive merits. “When determ ining whether a reasona ble officer would have been aware of a constitutional right, we do not impose on the official a duty to sort out conflicting decisions or to resolve subtle or open issues.” Campbell v. Galloway , 483 F.3d 258, 271 (4th Cir. 2007). Moreover, “[i]n determining whether a right was clearly established at the tim e of the claim ed violation, ‘courts in this circ uit [ordinarily] need not look be yond the decisions of the Suprem e Court, this court of appeals, and the highest court of the state in which the case arose.’” Edwards v. City of Goldsboro , 178 F.3d 231, 251 (4th Cir. 1999). Given the lack of cases on point, addressing the specific issues presented in the in stant case, I cannot conclude that the law was

4

United States v. Virginia did not involve single-sex classrooms; instead, it involved the exclusion

of women from the Virginia Military Institute (“VM I”). Virginia est ablished a separate program for

women, which the Supre me Court co mpared with VMI and found significant differences which

“afford[ed] women no opportunity to experience the ri gorous military training for which VMI is famed.”

Virginia, 518 U.S. at 548.

5

The commentary regarding the regulations discu sses at length, and cites, the Supreme Court’s

holdings in United States v. Virginia . See Nondiscrimination on the Basis of Sex in Educatio n Programs

or Activities Receiving Federal Financial Assist ance, 71 Fed. Reg. 62530, 62533. The language in t he

regulations ultimately adopted closely tracks the standards set forth in United States v. Virginia. Compare

34 C.F.R. §§ 106.34(b)(1)(i) & (4)(i) with Virginia, 518 U.S. at 533.

9

Case 6:12-cv-04355 Document 66 Filed 10/15/12 Page 10 of 12 PageID #: 1087
“clearly established” such that defendants Tayl or and Colem an had sufficient notice that the single-sex classroom program at VDMS would violate the Equal Protection Clause or Title IX.
Accordingly, defendants Taylor and Coleman are entitled to qualified immunity, and the motion to dismiss on this ground is GRANTED.
B. The Claims Against Defendants L aw and Taylor in their O fficial Capacities are Redundant
The defendants maintain that the plaintiffs’ claims against defendants Law and Taylor in their official capacities are re dundant to the plaintiffs’ claim s against the WCBE, and should therefore be dismissed. The plaintiffs admit that “[b]oth the Suprem e Court and Fourth Circuit have held that official capacity claims are essentially redundant of claims against a governmental entity,” but argue th at dismissal is not required and asks the cour t to allow the se claims to proceed. (Pls.’ Opp’n to Defs.’ Mot. to Dism iss [Docket 58], at 14). Indeed, the United States Supreme Court has explained that:
Official-capacity suits . . . gen erally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (internal citations om itted). And the Fourth Circuit has held that a § 1983 cla im against a school-board official “in his official capacity as Superintendent is essentially a claim against the Board and thus s hould be dism issed as duplicative.” Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004); see also Cline v. Auville , No. 1:09-0301, 2010 WL 1380140, at *4 (S .D. W. Va. Mar. 30, 2010); Lee v. City of South Charleston, No. 2:08-0289, 2009 WL 2602378, at *10 (S.D . W. Va. Aug. 21, 2009). W hile the court may not be required to dism iss the claims agains t defendants Law and Taylor in their official capacities, the court nonetheless does so because it FINDS that there is little benef it in
10

Case 6:12-cv-04355 Document 66 Filed 10/15/12 Page 11 of 12 PageID #: 1088
retaining these officials as named defendants. See Chase v. City of Portsmouth , 428 F. Supp. 2d 487, 488-89 (E.D. Va. 2006).
Accordingly, I GRANT defendants Law and Ta ylor’s motion to dism iss the plaintiffs’ claims against them in their official capacities. V. The Defendants’ Motion to Dismiss any Claims for Damages aga inst the Individual
Defendants Pursuant to the Eleventh Amendment The defendants argue that, to any extent th at the plaintiffs brin g a claim for da mages against the individual defenda nts Law, Taylor, and Colem an, the claim should be dism issed under the Eleventh A mendment. The plaintiffs respond by asserting that the Eleventh Amendment does not extend to counties and sim ilar municipal corporations, including county school boards such as the WCBE. ( Pls.’ Opp’n to Defs.’ Mot. to Dismiss [Docket 58], at 16-19). As discussed above, I granted th e motion to dism iss the claim s against defendants Taylor and Coleman in their individual capacities and the claims against defendants Taylor and Law in their official capacities. Since the only rem aining defendant is the WCBE, the Eleventh Amendment issue regarding the individual defendants is moot and I do not reach this question. VI. Conclusion For the reasons set forth above, the court GRANTS in part and DENIES in part the Defendants’ Motion to Dismiss [Docket 52]. The m otion is GRANTED as to the claims against defendants Taylor and Coleman in their individual capacities and defendants Law and Taylor in their official capacities, and DENIED as to the rem aining claims. Accordingly, the court ORDERS that the claims against defendants Taylor and Coleman in their ind ividual capacities and defendants Law and Taylor in their official capacities be DISMISSED. The court DIRECTS the Clerk to send a copy of this Or der to counsel of record and any unrepresented party.
11

Case 6:12-cv-04355 Document 66 Filed 10/15/12 Page 12 of 12 PageID #: 1089 ENTER: October 15, 2012
12

 
 Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 1 of 12 PageID #: 1226

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JANE DOE, individually and as next friend to her minor daughters, ANNE DOE, BETH DOE, and CAROL DOE,
Plaintiffs,
vs.
WOOD COUNTY BOARD OF EDUCATION,
Defendant.

CASE NO. 6: 12-cv-04355 JUDGE GOODWIN

CONSENT DECREI<: This Consent Decree is entered into this 3rd day of July, 20 13, by and between Ja ne Doe, indiv idually and as next fri end of her minor daug hters, Anne Doe, Beth Doe, a nd Carol Doe ("P laintiffs") and Wood County Board of Education ("WCBOE") (collectively "the Parties") .

RJi: CITATI 0 NS WHEREAS, in the 2012-20 13 school year, and in one or more prior school years, WCBOE has operated single-sex classes at V an Dcvcnder Middle School in Parkersburg, West Virginia;
WHEREAS, Plaintiff<; have alleged, and Defendant has denied, that the s inglesex classes operated by W CB OE constitute sex discrimination in violation of federal law, specifically the Equal Protection Clause of the fourteenth Amendment and Title IX, 20 U.S.C. § 168 1, as interpreted by the Depa1tment of Agriculture and Department of E ducation in

Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 2 of 12 PageID #: 1227
regulations 7 C.F.R. § 15a.34 and 34 C.P.R. § 106.34 and Plaintiffs have initiated this action to challenge the legality thereof;
WHEREAS , the parties desire to enter into this Consent Decree in full settlement of and to discharge all claims that are, or might have been, the subject of this action, including claims for damages and/or claims for attorneys' fees, on the terms and conditions set forth herein; and
WHEREAS, the parties to this Consent Decree understand that this settlement is intended to include a full and complete release of any and all claims that exist between the parties, including any claims regarding any activ ity of the WCBOE or its employees that occurred after the filing ofthe Complaint up until and including the date of this Consent Decree, except for any continuing obligations created by this Consent Decree;
NOW, THEREFORE, in consideration of the above Recitations, which are hereby made patt of this Consent Decree, and for other good valuable consideration, the receipt and sufficiency ofwhich is hereby acknowledged, it is agreed as follows:
1. WCBOE, and each public schoo l under its jurisdiction, shall not provide any Single-Sex Activity for the remainder of the 2012-20 13 school year or for the 20 13-20 14 or 2014-2015 school years. After the 2014-2015 school year, WCBOE wi ll initiate Single-Sex Activ ity only if the program meets the requirements of the U.S . Constitution and Title IX, as interpreted by the Court' s Memorandum Opinion and Order on August 29, 2012, including, w ithout limitation, the requirement that WCBOE obtain clear and affirmative assent from parents or legal guardians prior to enrolling students into any Single-Sex Activity. For purposes of this Consent Decree, and with the exceptions set out in
2

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paragraph (2) below, "Single-Sex Activity" means: any course or other education program or activity carried out separately on the basis of a student's sex, including all classes, extracurricular activities, recess, lunch, and physical education, or a requirement or refusal of participation in any school, course, or education program or activity by any students on the basis of a student's sex.
2. The above paragraph (I) docs not apply to the following activities, and this Consent Decree does not modify the WCBOE's existing legal obligations as to the following activities:
a. Separation of students by sex with in physical education classes or activities for participation in wrestling, boxing, rugby, ice hockey, football, basketball, or other sp011s, the purpose or major activity of which involves bodily contact; b. Grouping of students by ability as assessed by objective standards of individual petformance developed and applied without regard to sex; c. Portions of classes in elementary and secondary schools that deal primarily with human sexuality; d. Requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex; or e. Interscholastic or intramural athletics.
3

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3. If, in advance of and/or during the 2015-2016,2016-2017, and 20172018 school years, the WCBOE seeks to initiate any Single-Sex Activity at any public school under its jurisdiction, except those activities exempted in paragraph (2) above, WCBOE shall, within no less than one hundred twenty ( 120) days prior to initiating1 such Single-Sex Activity, give written "Notice of Intent to Proceed with Single-Sex Education Program" (hereinafter referred to as ''Notice") to Plaintiffs, through their counsel.2 The written Notice shall conform to the requirements of Fed. R. Civ. P. 26(g)(l)(A) that it be complete and correct as of the time it is made to the best of the WCBOE's knowledge, infonnation, and belieffonned after a reasonable inquity, and include the following:
a. Description ofthe proposed Single-Sex Activity;3
b. Documents, materials, and other evidence demonstrating the purpose, rationale, and basis for the expected efficacy of the proposed Single-Sex Activity;
c. Data or analysis regarding the proposed Single-Sex Activity;4 and
1 For purposes of this Consent Decree, the phrase " initiating such Single-Sex Activity" shall mean the first day of school on which students a re taught or provided c lassroom instructi on pursuant to the constructs of the Single-Sex Activity. 2 The notice provisions in paragraphs 3-5 do not apply if the WCBOE plans to initiate a Single-Sex Activity in the 2018-2019 school year. 3 For purposes ofthis Consent Decree, the phrase "description of the proposed Single-Sex Activity," shall mean an identification of teachers and the subjects and grade levels that they will teach pursuant to the Single-Sex Activity, if applicable; logistical information regarding how WCBOE will disseminate the "Opt-In Form" to parents and collect completed Opt-In Forms; logistical information as to how WCBOE will honor the parents' wishes for their children, as they relate to enrolling or declining to enroll their children in the Single-Sex Activity; and information as to how the school's regular coeducational program will proceed. 4 For purposes of this Consent Decree, the phrase " data or analysis regarding the proposed Single-Sex Activity" means any data or analysis upon which WCBOE relics for iL<; decision to implement the Single-Sex Activity, and includes without limitation minutes, recordings. or transcripts of WCBOE meetings at which the proposal to
4

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d. Copies of materials that have been and/or will be provided to teachers, faculty, students, and/or parents regarding the proposed Single-Sex Activity.5
Although, as stated above, WCBOE must give to Plaintiffs, through their counsel, written Notice no less than one hundred twenty (120) days prior to initiating a Single-Sex Activity, the parties agree that WCBOE is obligated to supplement and/or amend the Notice and the material provided if the Notice or material prqvided is incomplete or incorrect. The amended Notice and/or supplemental information shall be delivered to Plaintiff by May 15 of the school year preceding the commencement of the proposed Single-Sex Activity, or the next regular business day if May I5 fa lls on a weekend or other day that the WCBOE is not open for business.
4. Within fatty-five (45) days of the WCBOE submitting the Notice, counsel for Plaintiffs will submit, in writing, any objections to the WCBOE regarding the proposed Single-Sex Activity.
5. As soon as possible, but not more than twenty (20) days after WCBOE submits the Notice to counsel, and provided the WCBOE still wishes to proceed with the Single-Sex Activity, the WCBOE w ill file a Petition to Modi1y the Court's Order of Dismissal
institute a Single-Sex Activity was discussed, research. studies. the results of standardized testing, information outlining behavioral and academic performance needs that the Single-Sex Activity will seek to address, and any evidence regarding the efficacy ofsingle-sex programming. where applicable. 5 For purposes of this Consent Decree, the phrase " materials that have been and/or will be provided to teachers, faculty, students, and/or parents regarding the proposed Single-Sex Activity" shall include correspondence, presentations, and other materials provided to parents descri bing the Single-Sex Activity and how it wi ll be implemented; a copy of the " Opt-Tn Form" that wil l be di sseminated to parents so that the parents may choose whether to enroll their children in the Single-Sex Activity; materials describing the coeducational alternative(s) available and explaining how it will proceed in conjunction w ith the Single-Sex Activity; copies of pertinent training materials provided to teachers and faculty regarding the Single-Sex Activity; information about any outside speakers retained to train teachers regarding the Single-Sex Activity; and infonnation about any educational conferences teachers and faculty may have attended or will attend regarding any Single-Sex Activity.
5

Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 6 of 12 PageID #: 1231

and Pennanent Injunction (the " Petition"), as described below, and request that the Corut enter an appropriate Order permitting the WCBOE to proceed with the Single-Sex Activity. In support of its Petition, the WCBOE will include a copy of the Notice and all documents and materials provided therein. Plaintiffs, by their counsel, may submit an opposition to the Petition within fifteen (15) days of service. .

6. The WCBOE will permit a representative of the Plaintiffs to visit Van Devender Middle School during each year that, pursuant to the term s of this Consent Decree, the WCBOE agrees to not conduct any Single-Sex Activity. The purpose of this provision is to provide a mechanism by w hich the Plaintiffs can ensure that the WCBOE is not engaging in any Single-Sex Activities prior to the 2015-2016 school year.

7.

If, during or after the 20 15-20 16 school year, the WCBOE is granted

permission to commence any Single-Sex Activity at Van Devcndcr Middle School, the WCBOE

agrees to permit a representative of the Plaintiffs to visit Van Devender Middle School during

the first year any Single-Sex Activity commences. The purpose of this provision is to provide a

mechanism by which the Plaintiffs can ensure that the WCBOE is conducting any Single-Sex

Activity in accordance with the terms of this Consent Decree and the Court's prior orders,

including any orders given during the Notice process discussed in paragraphs 3, 4, and 5 of this

Consent Decree. · If, at any time subsequent to the initiation of the Single-Sex Activity, the

WCBOE provides written notice to the Plaintiff that the WCBOE intends to discontinue the

Single-Sex Activity at Van Devender Middle School, then all visits by the Plaintiffs '

representative pursuant to the terms of this paragraph shall cease.

6

Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 7 of 12 PageID #: 1232
8. The parties agree that the Plaintiffs' representative will provide the WCBOE with at least five (5) days' notice of its intent to conduct a visit pursuant to paragraphs 6 and 7 above, and will further indicate the name of the person who will be conducting the visit and the proposed date and time of said visit. The parties agree that the frequency and duration of visits conducted by the Plaintiffs' representative shall be reasonable. The parties further agree that the WCBOE may select a representative to attend the visit(s) along with the Plaintiffs' representative.
9. Within fifteen (15) business days ofthe Court's approval ofthis Consent Decree, WCBOE shall pay the sum of $65,000 for attorneys' fees and costs to the American Civil Liberties Union of West Virginia Foundation, Post Office Box 3952, Charleston, WV 25339.
I0. Within fifteen (15) business days of the Court's approval of this Consent Decree, WCBOE shall pay the sums specified in Attachment A to Jane Doe (individually), and to Jane Doc as next friend of Anne Doe, Beth Doe, and Carol Doe. Attachment A is to be considered a part of this Consent Decree, and is incorporated herein by reference.
11. The true names of the Plaintiffs and the settlement amounts paid by the WCBOE shall be kept confidential by all parties, except as required by law or as necessary for fulfillment of tax obligations, for accounting purposes, or for purposes of consultation with legal counsel.
7

Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 8 of 12 PageID #: 1233
12. WCBOE agrees that WCBOE, including but not limited to any officer, employee, or agent ofWCBOE, shall not harass, intimidate, disparage, or otherwise retaliate against Plaintiffs.
13. As consideration for these commitments by WCBOE, the Plaintiffs hereby release WCBOE, Natio nal Union Fire Insurance Company of Pittsburgh (the WCBOE's insurer), any ATG company, and each of their agents, officers, employees, directors, board members, assigns, and successors, and all other persons, firms, and/or corporations that are liable and/or potentially liable, none of whom admit liability, but all of whom expressly deny liability, from any and all claims, demands. damages, actions, causes of actions, or suits of any kind or nature whatsoever, including. but not limited to, attorneys' fees, and particularly on account of all injuries and damages, known and unknown, that exist between the parties, including any claims regarding any activity of the WCBOE or its employees that were the subject of this civil action and/or that occurred after the filing of the Complaint through the date of execution of this Consent Decree, except for any continuing obligations created by this Consent Decree or fo r the breach of the term s and conditions of this Consent Decree.
14. Prior to the sign ing of this Consent Decree, Plaintiffs shall file a motion with the Court to approve the settlement as relates to the minors. The motion to approve settlement will request that the Court "so order" this Consent Decree and that the Court approve the settlement as relates to the minors.
15. No later th an ten ( I 0) business days fo ll owing the date of the s igning of this Consent Decree by both Parties, Plaintiffs shall file a motion to dismiss and a
8

Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 9 of 12 PageID #: 1234
proposed order of dismissal. The motion to dismiss and proposed order of dismissal will incorporate this Consent Decree in its entirety and will request that the Court enter an appropriate Permanent Injunction Order, embodying the proposals stated herein, and that the Court dismiss this action, subject to any subsequent Petition to Modify (as discussed more fully above).
16. The Parties agree that Attachment A contains the true names and identities of Plaintiffs and the monetary settlement amounts disbursed to each. Defendant shall not disclose those true names and identities to anyone, including, without limitation, Van Devender school faculty or administration, parents, students, or the media, except as required by law or as necessary for fulfillment of tax obligations, for accounting purposes, or for purposes of consultation with legal counsel.
17. The Parties agree that Attachment B contains the executed signature pages of this Consent Decree. Attachment B is to be considered a part of this Consent Decree, and is incorporated herein by reference. Plaintiffs will move the Court to file this Consent Decree and Attachments A and B under seal. Once "so ordered," this Consent Decree shall be entered into the public record and Attachments A and B shall remain under seal.
18. It is understood that this Consent Decree is not to be construed as an admission of liability on the part ofWCBOE.
19. The Parties declare and understand that no promises, inducements, or agreements not contained in this Consent Decree have been made to them and that the terms of this Consent Decree are contractual and not merely a recital.
9

Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 10 of 12 PageID #: 1235
20. This Consent Decree contains the entire agreement between the Parties with respect to this subject matter and there are no agreements, understandings, representations, or warranties between the Parties other than those set forth or referred to in this Consent Decree.
21. This Consent Decree shall be construed as a whole, according to its fair meaning, and not in favor of or against any Party. By way of example, and not in limitation, this Consent Decree shall not be construed in favor of the Party receiving a benefit nor against the Party responsible for any particular language in this Consent Decree. Captions are used for reference purposes only and should be ignored in the interpretation of the Consent Decree.
22. If any provision of this Consent Decree shall be determined to be invalid, illegal, or unenforceable for any reason, the remaining provisions and portions of this Consent Decree shall be unaffected and unimpaired, and shall remain in full force and effect, to the fullest extent permitted by applicable law.
23. Attachment 8 to this Consent Decree may be executed in counterparts, by either an original signature or signature transmitted by facsimile or other similar process, and each copy so executed shall be deemed to be an original and all copies so executed shall constitute one and the same Consent Decree.
24. This Consent Decree may not be modified or amended, nor may any term or provision be waived or discharged, except in writing signed by all Parties. The waiver of any breach of any provision of this Consent Decree shall not constitute or operate
10

Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 11 of 12 PageID #: 1236

as a waiver of any other breach of such provision or of any other provision, nor shall any failure to enforce any provision operate as a waiver of such provision or of any other provision.
25. This Consent Decree shall be interpreted according to the laws of the State of West Virginia.
26. This Consent Decree shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
27. The Court shall retain jurisdiction over this matter for a period of five (5) years up to and including July 3, 2018 for the purposes of enforcing this Consent Decree. The terms and obligations of this Consent Decree and the Court's Permanent Injunction Order will terminate on July 4, 201 8.

Dated: July 3, 2013

Respectfully Submitted,

Robert]. Kent (5010) Aaron C. Boone (9479) Bowles Rice LLP Fifth Floor, United Square 501 Avery Street Post Office Box 49 Parkersburg, WV 261 02 (304) 485-8500 rkent@ bowlesrice.com aboone @ bowlesrice.com
Attorneysfor Defendant

Sarah Rogers Staff Attorney, American Civil Liberties Union of West Virginia Foundation P.O. Box 3952 Charleston, WV 25339-3952 (304) 345-9346 srogers@acluwv .org
Lenora M. Lapidus Galen Sherwin Amy Lynn Katz American Civil Liberties Union Foundation Women's Rights Project 125 Broad Street, 181h Floor

Roxann E. Henry Marissa P. Harris Joshua A. Hartman Morrison & Foerster LLP 2000 Pennsylvania Ave. NW Suite 6000 Washington, D.C. 20006 (202) 887-1500 RHenry@mofo.com MHarris@mofo.com JHartman@mofo.com
Attorneysfor Plaintiffs

11

Case 6:12-cv-04355 Document 93 Filed 07/08/13 Page 12 of 12 PageID #: 1237
New York, NY 10004 (212) 549-2615 LLapidus@ acl u.o r g g sherwi n@ aclu.org wrp_ ak@aclu.org
12

 
 Case: 6:12-cv-4355 As of: 10/27/2017 01:30 AM EDT 1 of 13
United States District Court Southern District of West Virginia (Parkersburg)
CIVIL DOCKET FOR CASE #: 6:12−cv−04355

CLOSED

Doe et al v. Wood County Board of Education et al Assigned to: Judge Joseph R. Goodwin Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/15/2012 Date Terminated: 07/08/2013 Jury Demand: Defendant Nature of Suit: 448 Civil Rights: Education Jurisdiction: Federal Question

Jane Doe individually and as next friend to her minor daughters

represented by Amy Lynn Katz AMERICAN CIVIL LIBERTIES UNION FOUNDATION Womens Rights Project 18th Floor 125 Broad Street New York, NY 10004 212/ 549−2615 Fax: 212/549−2580 Email: wrp_ak@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Brandt−Young AMERICAN CIVIL LIBERTIES UNION FOUNDATION Womens Rights Project 18th Floor 125 Broad Street New York, NY 10004 212/ 549−2615 Fax: 212/549−2580 Email: wrp_cby@aclu.org TERMINATED: 01/25/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Galen Sherwin AMERICAN CIVIL LIBERTIES UNION FOUNDATION Womens Rights Project 18th Floor 125 Broad Street New York, NY 10004 212/ 549−2615 Email: gsherwin@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Hartman MORRISON & FOERSTER Suite 6000 2000 Pennsylvania Avenue, NW Washington, DC 20006 202/ 887−1500 Fax: 202/887−0763 Email: JHartman@mofo.com LEAD ATTORNEY

Case: 6:12-cv-4355 As of: 10/27/2017 01:30 AM EDT 2 of 13
PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus AMERICAN CIVIL LIBERTIES UNION FOUNDATION Womens Rights Project 18th Floor 125 Broad Street New York, NY 10004 212/549−2615 Fax: 212/549−2580 Email: LLapidus@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marissa P. Harris MORRISON & FOERSTER Suite 6000 2000 Pennsylvania Avenue, NW Washington, DC 20006 202/ 887−1500 Fax: 202/887−0763 Email: MHarris@mofo.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Roger D. Forman FORMAN & RIST Suite 400 100 Capitol Street Charleston, WV 25301 304/799−6406 Fax: 304/799−6604 Email: forman.roger@yahoo.com TERMINATED: 10/01/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roxann E. Henry MORRISON & FOERSTER Suite 6000 2000 Pennsylvania Avenue, NW Washington, DC 20006 202/ 887−1500 Fax: 202/887−0763 Email: RHenry@mofo.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Austin Rogers AMERICAN CIVIL LIBERTIES UNION OF WEST VIRGINIA FOUNDATION P. O. Box 3952 Charleston, WV 25311 304/345−9246 Fax: 304/345−0207 Email: srogers@acluwv.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Plaintiff

Case: 6:12-cv-4355 As of: 10/27/2017 01:30 AM EDT 3 of 13

Anne Doe

represented by Amy Lynn Katz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Brandt−Young (See above for address) TERMINATED: 01/25/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Galen Sherwin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Hartman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marissa P. Harris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Roger D. Forman (See above for address) TERMINATED: 10/01/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roxann E. Henry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Austin Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Beth Doe and

represented by Amy Lynn Katz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Brandt−Young (See above for address) TERMINATED: 01/25/2013

Case: 6:12-cv-4355 As of: 10/27/2017 01:30 AM EDT 4 of 13

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Galen Sherwin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Hartman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marissa P. Harris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Roger D. Forman (See above for address) TERMINATED: 10/01/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roxann E. Henry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Austin Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Carol Doe

represented by Amy Lynn Katz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Brandt−Young (See above for address) TERMINATED: 01/25/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Galen Sherwin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 6:12-cv-4355 As of: 10/27/2017 01:30 AM EDT 5 of 13

Joshua A. Hartman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marissa P. Harris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Roger D. Forman (See above for address) TERMINATED: 10/01/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roxann E. Henry (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Austin Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Wood County Board of Education
Defendant

represented by Aaron C. Boone BOWLES RICE MCDAVID GRAFF & LOVE P. O. Box 49 Parkersburg, WV 26102−0049 304/485−8500 Fax: 304/420−5587 Email: aboone@bowlesrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Kent BOWLES RICE MCDAVID GRAFF & LOVE P. O. Box 49 Parkersburg, WV 26102−0049 304/485−8500 Fax: 304/420−5587 Email: rkent@bowlesrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 6:12-cv-4355 As of: 10/27/2017 01:30 AM EDT 6 of 13

J. Patrick Law Superintendent, in his Official Capacity TERMINATED: 10/15/2012

Aaron C. Boone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert J. Kent (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Stephen Taylor Principal, Van Devender Middle School, in his Official and Individual Capacity, and TERMINATED: 10/15/2012

represented by Aaron C. Boone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Kent (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Penny Tonelli Coleman Former Assistant Principal of Van Devender Middle School, in her Individual Capacity TERMINATED: 10/15/2012

represented by Aaron C. Boone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Kent (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Guardian ad Litem J. Nicholas Barth

represented by J. Nicholas Barth BARTH & THOMPSON P. O. Box 129 Charleston, WV 25321−0129 304/342−7111 Fax: 342−6215 Email: nbarth@barth−thompson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/15/2012 08/15/2012
08/15/2012 08/15/2012
08/15/2012

# Docket Text
1 COMPLAINT. Filing Fee $350.00. Receipt # 0425−1950351. (Attachment: # 1 Civil Cover Sheet) (taq)
2 STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED SEPTEMBER 2, 2010. This matter referred to Magistrate Judge Stanley for discovery. (cc: attys; any unrepresented party) (taq)
CASE assigned to Judge Joseph R. Goodwin. (ras)
3 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Protective Order (Forman, Roger) (skh). (Modified on 8/15/2012 to remove memorandum in support and file as entry #5) (skh). (Modified on 8/16/2012 to remove Declarations of plaintiffs (attachments ## 1−4) and add them to the #4 motion for temporary restraining order and preliminary injunction as attachments ## 32−35) (skh).
4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Affidavit of Sarah Rogers, # 2

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08/15/2012 08/15/2012 08/15/2012
08/16/2012 08/16/2012 08/16/2012 08/16/2012 08/16/2012 08/16/2012 08/16/2012 08/16/2012
08/16/2012
08/16/2012

Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17−1, # 19 Exhibit 17−2, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28−1, # 31 Exhibit 28−2)(Forman, Roger). (Modified on 8/15/2012 to remove memorandum and file as entry #6) (skh). (Additional attachments added on 8/16/2012: # 32 Declaration of Jane Doe, # 33 Declaration of Beth Doe, # 34 Declaration of Anne Doe, # 35 Declaration of Carol Doe, # 36 Declaration of Diane F. Halpern w/Exhibits A and B attached) (skh). (Modified on 8/16/2012 to add attachments 32−36 omitted at time case was filed) (skh).
5 MEMORANDUM by Anne Doe, Beth Doe, Carol Doe, Jane Doe in support of 3 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Protective Order (skh)
6 MEMORANDUM by Anne Doe, Beth Doe, Carol Doe, Jane Doe in support of 4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and Preliminary Injunction. (skh)
NOTICE OF DOCKET CORRECTION re: 3 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Protective Order and 4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and Preliminary Injunction. ERROR: Memoranda in support attached. CORRECTION: Removed memoranda and filed using the event Memorandum In Support, entries 5 and 6 . (skh)
7 STATEMENT OF VISITING ATTORNEY from Sarah Rogers on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe. Local counsel: Roger Forman. Fee $50.00. Receipt # 0425−1951188. (Forman, Roger)
8 STATEMENT OF VISITING ATTORNEY from Amy Katz on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe. Local counsel: Roger Forman. Fee $50.00. Receipt # 0425−1951200. (Forman, Roger)
9 STATEMENT OF VISITING ATTORNEY from Marissa Harris on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe. Local counsel: Roger Forman. Fee $50.00. Receipt # 0425−1951205. (Forman, Roger)
10 STATEMENT OF VISITING ATTORNEY from Christina Brandt−Young on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe. Local counsel: Roger Forman. Fee $50.00. Receipt # 0425−1951208. (Forman, Roger)
11 STATEMENT OF VISITING ATTORNEY from Joshua Hartman on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe. Local counsel: Roger Forman. Fee $50.00. Receipt # 0425−1951210. (Forman, Roger)
12 STATEMENT OF VISITING ATTORNEY from Roxann Henry on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe. Local counsel: Roger Forman. Fee $50.00. Receipt # 0425−1951212. (Forman, Roger)
13 STATEMENT OF VISITING ATTORNEY from Lenora Lapidus on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe. Local counsel: Roger Forman. Fee $50.00. Receipt # 0425−1951221. (Forman, Roger)
NOTICE OF DOCKET CORRECTION re: 3 Motion by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Protective Order. ERROR: Declarations of plaintiffs incorrectly attached. CORRECTION: Declarations removed (attachments ## 1−4) and attached to the #4 motion for a temporary restraining order and preliminary injunction as attachments ## 32−35. (skh)
NOTICE OF DOCKET CORRECTION re: 4 Motion by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and Preliminary Injunction. ERROR: Declaration of Diane F. Halpern, with Exhibits A and B, omitted at time of electronic filing. CORRECTION: Declaration of Diane F. Halpern, with Exhibits A and B, added as attachment #36. (skh)
14 SUMMONS SUBMITTED by Anne Doe, Carol Doe, Jane Doe, Beth Doe for Wood County Board of Education, J. Patrick Law, Stephen Taylor, Penny Tonelli Coleman

Case: 6:12-cv-4355 As of: 10/27/2017 01:30 AM EDT 8 of 13

08/16/2012
08/16/2012 08/16/2012 08/16/2012 08/17/2012 08/17/2012 08/20/2012 08/20/2012 08/20/2012 08/20/2012 08/21/2012
08/21/2012 08/21/2012 08/22/2012 08/22/2012

re: 1 Complaint. (Forman, Roger)
15 ORDER directing that a hearing on plaintiffs' 4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Preliminary Injunction is scheduled for 8/20/2012 at 1:30 PM in courtroom B 5600 at the Robert C. Byrd United States Courthouse in Charleston, West Virginia. Signed by Judge Joseph R. Goodwin on 8/16/2012. (cc: attys; any unrepresented party) (lca)
16 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Leave to Proceed Under Pseudonym (Forman, Roger) (Modified on 8/16/2012 to remove memorandum and file as entry #17) (skh).
17 MEMORANDUM by Anne Doe, Beth Doe, Carol Doe, Jane Doe in support of 16 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Leave to Proceed Under Pseudonym (skh)
NOTICE OF DOCKET CORRECTION re: 16 Motion by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Leave to Proceed Under Pseudonym. ERROR: Memorandum attached. CORRECTION: Removed memorandum and filed using the event Memorandum In Support, entry 17 . (skh)
18 SUMMONS ISSUED by the Clerk on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe for Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, re: 1 Complaint, returnable 21 days. Original Summons and 1 copy for each defendant returned to plaintiff's counsel for service. (tmh)
19 SUMMONS ISSUED by the Clerk on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe for Wood County Board of Education, re: 1 Complaint, returnable 21 days. Original Summons and 2 copies returned to plaintiff's counsel for service. (tmh)
20 NOTICE OF ATTORNEY APPEARANCE by Robert J. Kent on behalf of Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education. (Kent, Robert)
21 NOTICE OF ATTORNEY APPEARANCE by Aaron C. Boone on behalf of Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education. (Boone, Aaron)
22 EMAIL NOTIFICATION to Amy Lynn Katz, Christina Brandt−Young, Galen Sherwin, Joshua A. Hartman, Lenora M. Lapidus, Marissa P. Harris, Roxann E. Henry and Sarah Rogers with Notice from Teresa L. Deppner, Clerk, Re: Electronic filing requirements. (Attachments: # 1 Clerk's Notice) (jkk)
23 MOTION HEARING held by Judge Joseph R. Goodwin on 8/20/2012 re: 4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and for Preliminary Injunction Court Reporter: Ayme Cochran. (rac)
24 ORDER denying Plaintiffs' 4 MOTION for a Temporary Restraining Order; a hearing on the MOTION for Preliminary Injunction will be held on 8/27/2012 at 1:30 PM in Charleston; granting Plaintiffs' 16 MOTION for Leave to Proceed Under Pseudonym. Signed by Judge Joseph R. Goodwin on 8/20/2012. (cc: attys; any unrepresented party) (jkk)
25 WITNESS LIST by Plaintiffs Anne Doe, Beth Doe, Carol Doe, Jane Doe and Defendants Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education, for hearing held 8/20/2012. (jkk)
26 EXHIBIT LIST FROM MOTION HEARING held 8/20/2012. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (jkk)
27 CERTIFICATE OF SERVICE filed by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education for Defendants' First Set of Interrogatories and Requests for Production to Plaintiffs. (Kent, Robert)
28 ORDER granting in part 3 MOTION for Protective Order, directing that exhibits, memoranda, affidavits and other papers filed with the Court in connection with this action shall be written or redacted to refer to the plaintiffs by their pseudonyms; denying in part the remainder of the Motion for Protective Order. Signed by Judge

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08/22/2012 08/23/2012
08/23/2012 08/23/2012 08/23/2012 08/23/2012 08/24/2012 08/24/2012 08/24/2012
08/27/2012 08/27/2012 08/27/2012 08/27/2012 08/27/2012 08/28/2012 08/28/2012

Joseph R. Goodwin on 8/22/2012. (cc: attys; any unrepresented party) (jkk)
29 CERTIFICATE OF SERVICE filed by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Plaintiffs' First Set of Interrogatories and Requests for Production to Defendants (Forman, Roger) (Modified on 8/23/2012 for clarity and to remove excess text) (taq).
30 SUMMONS RETURNED EXECUTED by Personal Service for Stephen Taylor. Stephen Taylor served on 8/17/2012, answer due 9/7/2012. Summons served on Stephen Taylor, Principal, Van Devender Middle School. (Forman, Roger) (Modified on 8/24/2012 to correctly reflect summons was served on Defendant Stephen Taylor) (skh).
31 SUMMONS RETURNED EXECUTED by Personal Service for J. Patrick Law. J. Patrick Law served on 8/17/2012, answer due 9/7/2012. Summons served on Sharon J. Buzzard, Superintendent's Secretary. (Forman, Roger) Modified on 12/2/2012 to add text for clarity (arb).
32 SUMMONS RETURNED EXECUTED by Personal Service for Penny Tonelli Coleman. Penny Tonelli Coleman served on 8/17/2012, answer due 9/7/2012. Summons served on Penny Tonelli Coleman. (Forman, Roger)
33 SUMMONS RETURNED EXECUTED by Personal Service for Wood County Board of Education. Wood County Board of Education served on 8/17/2012, answer due 9/7/2012. Summons served on Sharon J. Buzzard, Superintendent's Secretary. (Forman, Roger) Modified on 12/2/2012 to add text for clarity (arb).
34 NOTICE OF CERTIFICATION FOR USE OF COURTROOM TECHNOLOGY on 8/27/2010 [sic] by Anne Doe, Beth Doe, Carol Doe, Jane Doe. (Forman, Roger)
35 NOTICE OF CERTIFICATION FOR USE OF COURTROOM TECHNOLOGY on August 27, 2012 at 4:00 p.m. to 7:00 p.m. in Judge Goodwin's Courtroom, 7009 Robert C. Byrd United States Courthouse, 300 Virginia Street East, Charleston, WV 25301 (Kent, Robert)
36 CERTIFICATE OF SERVICE filed by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Plaintiffs' Response to Defendant's First Set of Interrogatories and Requests for Production (Forman, Roger)
37 TRANSCRIPT OF PROCEEDINGS of Motions Hearing held on 8−20−12, before Judge Joseph R. Goodwin. Court Reporter Ayme Cochran, Telephone number 304−347−3128. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due 9/4/2012. Redaction Request due 9/14/2012. Redacted Transcript Deadline set for 9/24/2012. Release of Transcript Restriction set for 11/26/2012. (aac)
38 MEMORANDUM by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education in opposition to 4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and Preliminary Injunction(Boone, Aaron)
39 RETURN OF SERVICE ON SUBPOENA for Cindy Wade. (Kent, Robert)
40 RETURN OF SERVICE ON SUBPOENA for Noel Clinton. (Kent, Robert)
41 RETURN OF SERVICE ON SUBPOENA for Alisha Mendez. (Kent, Robert)
42 PRELIMINARY INJUNCTION HEARING held by Judge Joseph R. Goodwin on 8/27/2012 re: 4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Preliminary Injunction Court Reporter: Teresa Harvey. (rac) (Entered: 08/28/2012)
43 SUPPLEMENTAL RESPONSE by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education in opposition of 4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and Preliminary Injunction (Boone, Aaron)
44 POST−HEARING MEMORANDUM by Anne Doe, Beth Doe, Carol Doe, Jane Doe in support of 4 MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for a Temporary Restraining Order and Preliminary Injunction(Forman, Roger) (Modified

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08/28/2012 08/28/2012 08/28/2012 08/28/2012 08/28/2012 08/28/2012 08/29/2012 08/29/2012
09/07/2012 09/07/2012 09/07/2012 09/10/2012
09/14/2012 09/14/2012 09/21/2012

on 8/29/2012 to correct link to #4 motion and to replace unsigned image with signed image) (skh).
45 WITNESS LIST by Plaintiffs Anne Doe, Beth Doe, Carol Doe, Jane Doe, and Defendants Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education, for hearing held 8/27/2012. (jkk)
46 CERTIFICATE OF SERVICE filed by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Plaintiffs' Post−hearing Memorandum in Support of Preliminary Inujunction (Forman, Roger) (Modified on 8/29/2012 to remove excess text)(taq).
47 DOCUMENT SUBMITTED BY PLAINTIFFS TO VOUCH THE RECORD, RE: PRELIMINARY INJUNCTION HEARING held 8/27/2012. (Attachments: # 1 CD) (jkk)
48 DOCUMENT SUBMITTED BY PLAINTIFFS TO VOUCH THE RECORD, RE: PRELIMINARY INJUNCTION HEARING held 8/27/2012 (Attachments: # 1 Survey about Gender) (jkk)
49 DOCUMENT SUBMITTED BY DEFENDANTS TO VOUCH THE RECORD, RE: PRELIMINARY INJUNCTION HEARING held 8/27/2012 (Attachments: # 1 VanDevender Middle Trend Data) (jkk)
50 EXHIBIT LIST FROM PRELIMINARY INJUNCTION HEARING held 8/27/2012. (jkk) (Additional attachment(s) added on 8/31/2012: # 1 Plaintiffs' Exhibits 1, 2, 3, # 2 Plaintiffs' Exhibits 4, 6, 7, 16, # 3 Defendants' Exhibits 6, 9, 10, 11, 43, 46) (jkk).
NOTICE OF DOCKET CORRECTION re: 44 Post−Hearing Memorandum by Anne Doe, Beth Doe, Carol Doe, Jane Doe. ERROR: Image did not contain a signature. CORRECTION: Unsigned image removed and replaced with signed image. (skh)
51 MEMORANDUM OPINION AND ORDER granting in part and denying in part plaintiffs' 4 MOTION for Preliminary Injunction. The court hereby enjoins the defendants from separating students into single−sex classes at Van Devender Middle School for the remainder of the 2012−13 school year, and unless and until any single−sex program offered meets the requirements of the constitution and Title IX, in particular the Department of Education regulations as interpreted by the court today. This injunction will take effect at the beginning of the school day on Monday, September 3, 2012. Signed by Judge Joseph R. Goodwin on 8/29/2012. (cc: attys; any unrepresented party; posted on the court's website, www.wvsd.uscourts.gov) (jkk)
52 MOTION by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education to Dismiss Pursuant to Rule 12(b)(6) (Boone, Aaron)
53 MEMORANDUM by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education in support of 52 MOTION by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education to Dismiss Pursuant to Rule 12(b)(6) (Boone, Aaron)
54 ANSWER TO 1 Complaint with Jury Demand by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education.(Boone, Aaron) (Modified on 9/8/2012 to add jury demand) (skh).
55 ORDER AND NOTICE: Rule 12(b) Motions due 10/10/2012. Last day for Rule 26(f) Meeting 11/9/2012. Last day to file report of Rule 26(f) Meeting 11/16/2012. Scheduling Conference at 10:00 AM on 11/30/2012 in Charleston. Entry of Scheduling Order 12/10/2012. Last Day to make Rule 26(a)(1) disclosures 12/14/2012. Signed by Judge Joseph R. Goodwin on 9/10/2012. (cc: attys; any unrepresented party) (jkk)
56 NOTICE OF INTENT TO REQUEST REDACTION by Roxann E. Henry re 37 Transcript − Miscellaneous,, (Henry, Roxann)
57 TRANSCRIPT REDACTION REQUEST re 37 Transcript − Miscellaneous,, (Henry, Roxann)
58 BRIEF by Anne Doe, Beth Doe, Carol Doe, Jane Doe in opposition to 52 MOTION by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education to Dismiss Pursuant to Rule 12(b)(6), 53 Memorandum In Support, (Rogers,

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09/26/2012 09/28/2012 09/28/2012 10/01/2012 10/01/2012 10/01/2012 10/04/2012
10/04/2012 10/15/2012
10/25/2012 11/05/2012 11/16/2012 11/26/2012 12/10/2012 12/12/2012

Sarah)
59 MOTION by Roger D. Forman to Withdraw as Counsel on behalf of Anne Doe, Beth Doe, Carol Doe, Jane Doe (Attachment: # 1 Proposed Order)(Forman, Roger)
60 AMENDED ANSWER to 1 Complaint by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education (Boone, Aaron)
61 REPLY by Penny Tonelli Coleman, J. Patrick Law, Stephen Taylor, Wood County Board of Education to 58 Brief In Opposition. (Boone, Aaron)
62 ORDER granting 59 MOTION by Roger D. Forman to Withdraw as Counsel. Attorney Roger D. Forman terminated. Signed by Judge Joseph R. Goodwin on 10/1/2012. (cc: attys; any unrepresented party) (jkk)
63 INCORRECT ENTRY − DOCUMENT FILED IN INCORRECT CASE − IMAGE DELETED. Modified on 10/1/2012 to delete image. (jkk)
NOTICE OF DOCKET CORRECTION re: ENTRY NO. 63 . (Error: Document filed in incorrect case. Correction: Image deleted.) (jkk)
64 TRANSCRIPT OF PROCEEDINGS of Motion for Preliminary Injunction held on August 27, 2012, before Chief Judge Joseph R. Goodwin. Court Reporter Teresa Harvey, Telephone number 304−254−8052. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due 10/15/2012. Redaction Request due 10/25/2012. Redacted Transcript Deadline set for 11/5/2012. Release of Transcript Restriction set for 1/2/2013. (tlh)
65 NOTICE OF INTENT TO REQUEST REDACTION by Roxann E. Henry re 64 Transcript (Henry, Roxann)
66 MEMORANDUM OPINION AND ORDER granting in part and denying in part defendants' 52 Motion to Dismiss. The motion is granted as to the claims against defendants Taylor and Coleman in their individual capacities and defendants Law and Taylor in their official capacities, and denied as to the remaining claims. Signed by Judge Joseph R. Goodwin on 10/15/2012. (cc: attys; any unrepresented party) (jkk)
67 TRANSCRIPT REDACTION REQUEST re 64 Transcript of Proceedings held on August 27, 2012. (Henry, Roxann) (Modified on 10/25/2012 to add docket text for clarity) (klc)
68 RESPONSE by Wood County Board of Education to 67 Transcript Redaction Request (Boone, Aaron)
69 RULE 26(f) REPORT OF PLANNING MEETING by Anne Doe, Beth Doe, Carol Doe, Jane Doe, Wood County Board of Education. (Henry, Roxann) (Modified on 11/16/2012 to add additional filer) (skh).
70 ORDER rescheduling the Scheduling Conference to 12/10/2012 at 01:30 p.m. in Charleston. Signed by Judge Joseph R. Goodwin on 11/26/2012. (cc: attys; any unrepresented party) (jkk)
71 SCHEDULING CONFERENCE held by Judge Joseph R. Goodwin on 12/10/2012; Court Reporter: Lisa Cook. (rac)
72 SCHEDULING ORDER: Amendment of pleadings and joinder of parties 1/10/2013. Deadline for written discovery requests 4/26/2013. Expert disclosure by party with burden of proof 4/11/2013, by opposing party 5/13/2013, and disclosure for rebuttal purposes 5/28/2013. Deposition deadline and close of discovery 6/10/2013. Dispositive Motions 7/1/2013, responses 7/15/2013, reply to response 7/22/2013. Hearing on Motions for Summary Judgment set for 8/22/2013 at 10:00 a.m. in Charleston. Settlement meeting and mediation deadline 9/3/2013. Motions in Limine to be filed by 9/9/2013, with responses due by 9/16/2013, Plaintiffs' draft of Pretrial Order to defendants due by 9/4/2013. Integrated Pretrial Order filed by defendant by 9/11/2013. Pretrial Conference set for 10/3/2013 at 11:00 a.m. in Charleston. Proposed jury instructions filed by 10/7/2013. Final Settlement Conference at 09:30 AM on 10/15/2013 in Charleston. Trial set for 10/16/2013 at 08:30 AM in Parkersburg before

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12/14/2012 12/14/2012 12/17/2012
01/23/2013 01/23/2013 01/23/2013 01/25/2013 03/05/2013 03/05/2013 03/05/2013 04/09/2013
04/17/2013
04/19/2013 05/20/2013

Judge Joseph R. Goodwin. Signed by Judge Joseph R. Goodwin on 12/12/2012. (cc: attys; any unrepresented party) (jkk)
73 CERTIFICATE OF SERVICE by Wood County Board of Education for Rule 26(a)(1) Initial Disclosures. (Kent, Robert)
74 CERTIFICATE OF SERVICE by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Rule 26(a)(1) Initial Disclosures. (Henry, Roxann)
75 TRANSCRIPT OF PROCEEDINGS of Status Conference held on December 10, 2012, before Judge Joseph R. Goodwin. Court Reporter Lisa Cook, Telephone number 304−347−3198. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due 12/27/2012. Redaction Request due 1/7/2013. Redacted Transcript Deadline set for 1/17/2013. Release of Transcript Restriction set for 3/18/2013. (lac)
76 MOTION by Christina Brandt−Young to Withdraw as Counsel on behalf of Anne Doe, Beth Doe, Carol Doe, Jane Doe (Rogers, Sarah) (Modified text to correctly reflect motion is filed on behalf of Attorney Christina Brandt−Young on 1/23/2013) (skh).
77 STATEMENT OF VISITING ATTORNEY from Galen Sherwin on behalf of Anne Doe, Carol Doe, Jane Doe, Beth Doe. Local counsel: Sarah Rogers. Fee $50.00. Receipt # 0425−2190075. (Rogers, Sarah) (Modified on 1/23/2013 to remove and replace incomplete image) (skh).
NOTICE OF DOCKET CORRECTION re: 77 Statement of Visiting Attorney from Galen Sherwin. ERROR: Incomplete image attached. CORRECTION: Incomplete image removed and replaced with complete image. (skh)
78 ORDER granting 76 MOTION by Christina Brandt−Young to Withdraw as Counsel. Signed by Judge Joseph R. Goodwin on 1/25/2013. (cc: attys; any unrepresented party) (jkk)
79 CERTIFICATE OF SERVICE filed by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Plaintiffs' First Request for Admissions to Defendants (Henry, Roxann)
80 CERTIFICATE OF SERVICE filed by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Plaintiffs' Second Set of Requests for Production of Documents to Defendants (Henry, Roxann)
81 CERTIFICATE OF SERVICE filed by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Plaintiffs' Second Set of Interrogatories to Defendants (Henry, Roxann)
82 STIPULATION extending time up to and including 4/18/2013 for Defendant to serve its responses, answers and/or objections to Plaintiffs' Second Set of Interrogatories, Second Set of Requests for Production of Documents and First Request for Admissions and for the parties to make their expert disclosures to 4/18/2013 for plaintiffs and to 5/20/2013 for defendant by Wood County Board of Education, Anne Doe, Beth Doe, Carol Doe, Jane Doe (Boone, Aaron) (Modified text for clarity and to add party filers on 4/9/2013) (skh).
83 CLERK'S ORDER WITHDRAWING AND TRANSFERRING REFERENCE TO UNITED STATES MAGISTRATE JUDGE. The referral of discovery matters is TRANSFERRED to the Honorable Dwane L. Tinsley, United States Magistrate Judge. Signed by Clerk of Court Teresa L. Deppner on 4/17/2013. (cc: Honorable Joseph R. Goodwin, U. S. District Judge, the Honorable Dwane L. Tinsley, U. S. Magistrate Judge, counsel of record, and any unrepresented party) (lca)
84 STIPULATION extending deadlines by Wood County Board of Education, Anne Doe, Beth Doe, Carol Doe, Jane Doe (Kent, Robert) (Modified on 4/19/2013 to add party filers) (skh).
85 JOINT MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe, Wood County Board of Education to Stay Proceedings (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Henry, Roxann) (Modified on 5/20/2013 to add party filer) (skh).

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05/21/2013 05/31/2013
06/06/2013 06/27/2013 07/01/2013 07/03/2013 07/08/2013
07/08/2013 07/29/2013 07/29/2013 08/06/2013

86 ORDER granting 85 JOINT MOTION to Stay; directing that this matter is stayed until further order of the court. Signed by Judge Joseph R. Goodwin on 5/21/2013. (cc: attys; any unrepresented party) (jkk)
87 JOINT MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe, Wood County Board of Education to Seal Attachments to the Consent Decree. (Attachments: # 1 Plaintiffs' Memorandum of Law in Support of Joint Motion to Seal, # 2 Defendant's Memorandum of Law in Support of Joint Motion to Seal, # 3 Plaintiffs' Motion to Compromise and Settle Claims, # 4 Exhibit 1 to Plaintiffs' Motion to Compromise and Settle Claims, # 5 Attachment A to Exhibit 1, # 6 Attachment B to Exhibit 1, # 7 Proposed Order Appointing Guardian Ad Litem and Setting Hearing, # 8 Proposed Order Entering Consent Decree Agreement and Sealing Attachments, # 9 Certificate of Service)(Henry, Roxann) (Modified on 6/1/2013 to add party filer) (skh). Modified on 7/8/2013 to unseal Motion to Seal, Memorandum in Support and Motion to Compromise and Settle Claims pursuant to 92 Order. (jkk).
88 ORDER directing that J. Nicholas Barth is appointed as Guardian ad Litem for plaintiffs Anne Doe, Beth Doe and Carol Doe; directing that a settlement approval hearing will take place on 7/1/2013 at 2:00 p.m. in Charleston. Signed by Judge Joseph R. Goodwin on 6/6/2013. (cc: J. Nicholas Barth, counsel of record, any unrepresented party) (jkk)
89 ANSWER BY GUARDIAN AD LITEM by J. Nicholas Barth (Barth, J.)
90 SETTLEMENT HEARING held by Judge Joseph R. Goodwin on 7/1/2013 re: 87 JOINT MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe, Wood County Board of Education to Seal Attachments to the Consent Decree; Court Reporter: Ayme Cochran. (rac)
91 CONSENT DECREE (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Certificate of Service)(Henry, Roxann) Modified on 7/8/2013 to unseal Consent Decree pursuant to 92 Order. (jkk)
92 ORDER granting in part and denying in part 87 JOINT MOTION to Seal; directing that Attachment A and Attachment B to the Consent Decree shall remain under seal; directing that the Consent Decree, the Joint Motion to Seal and the Memoranda of Law thereto, as well as the Plaintiffs' Motion to Compromise and Settle Claims shall be entered into the public record. Signed by Judge Joseph R. Goodwin on 7/8/2013. (cc: attys; any unrepresented party) (jkk)
93 CONSENT DECREE. Signed by Judge Joseph R. Goodwin on 7/8/2013. (cc: attys; any unrepresented party) (jkk)
94 UNOPPOSED MOTION by Anne Doe, Beth Doe, Carol Doe, Jane Doe for Order of Dismissal with Prejudice (Attachments: # 1 Exhibit A, # 2 Proposed Order, # 3 Certificate of Service)(Henry, Roxann)
95 SEALED MATERIALS filed by Anne Doe, Beth Doe, Carol Doe, Jane Doe pursuant to Court Order: Attachments A & B to the Consent Decree (Attachment: # 1 Attachment B to Consent Decree)(Henry, Roxann)
96 ORDER granting 94 MOTION for Order of Dismissal with Prejudice; directing that (1) the case is dismissed with prejudice; (2) the Consent Decree is incorporated into this Order; (3) Defendant Wood County Board of Education is permanently enjoined from providing any single−sex activity except as provided in the terms of the Consent Decree and until further Order of the Court; and (4) the Court shall retain jurisdiction over this action as provided in paragraph 27 of the Consent Decree for the purpose of enforcing the terms of this Order and the Consent Decree. Signed by Judge Joseph R. Goodwin on 8/6/2013. (cc: attys; any unrepresented party) (jkk)