Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 1 of 20 PAGEID #: 78

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CASEY HELMICKI,
Plaintiff,
v.
UNIVERSITY OF CINCINNATI, et
al.
Defendants.

:
:
:
:
:
:
:
:
:
:

Case No.
Judge
MOTION FOR TEMPORARY
RESTRAINING ORDER AND
PRELMINARY INJUNCTION AND
MEMORANDUM IN SUPPORT

Now comes Plaintiff, Casey Helmicki (Plaintiff or Helmicki), and hereby moves,
pursuant to Federal Rule of Civil Procedure 65(b), for issuance of a temporary restraining
order and preliminary injunction enjoining Defendants, the University of Cincinnati (U.C.),
Dr. Larry Bortner (Dr. Bortner), in his official capacity, Jyl Shaffer (Ms. Shaffer), in her
official capacity, Mostafa El Demery (Mr. El Demery), in his official capacity and Dr.
Kathleen Koenig (Dr. Koenig), in her official capacity, from engaging in illegal sexsegregation, in violation of Title IX and the Equal Protection Clause of the United States
Constitution. Helmicki is entitled to such an order because (1) Defendants unlawful practice
of sex-segregation clearly violates the prohibition of sex discrimination set out in Title IX
and the Equal Protection Clause, (2) Helmicki, as a student at U.C., will suffer irreparable
harm by being subject to sex-segregated classes in violation of Title IX, (3) enjoining the
Defendants unlawful practice of sex-segregation will not substantially harm Defendants or
others, and (4) the public interest will be served by such an injunction.
MEMORANDUM IN SUPPORT
Casey Helmicki is a 19-year old female student at the University of Cincinnati. She
desires to become a physician, is enrolled in the pre-med program at U.C and is pursuing a

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 2 of 20 PAGEID #: 79

double major in Neuroscience and Chemistry. As part of her course requirements, in the fall
of 2015 she took a physics lab course. The instructor for that lab told Ms. Helmicki that they
segregate students by sex because women shouldnt be working with men in
science. Following complaints from Ms. Helmicki, attempting to work through the proper
procedures at U.C., U.C. did not change its policy of sex-based segregation, but rather
ratified and institutionalized their separate but equal policies that have been resoundingly
rejected by the Courts as violative of the U.S. Constitution and Title IX. Thus, Ms. Helmicki
seeks relief to immediately stop the sex-based discrimination that U.C. insists remains its
policy today.
Because UC receives federal financial aid, it is subject to the provisions of Title IX of
the Education Amendments of 1971 (20 C.F.R. 1681, et seq.) and its implementing
regulations (34 C.F.R. 106) (collectively Title IX) which prohibits the University, as a
recipient, from aiding or perpetuating discrimination against any person or providing
different services in a different manner to any person.
If Defendants continued practice of illegal sex-segregation is not immediately
enjoined, Plaintiff will suffer irreparable harm for which there is no adequate remedy at law.
Damages for harms of this nature are necessarily difficult to quantify and may not readily be
compensated in money. In support of this Motion, Plaintiff respectfully submits the facts and
analysis below.
I. INTRODUCTION 1
Plaintiff initiated this civil rights action on July 1, 2016 by filing a Verified Complaint
challenging, facially and as applied to her, Defendants implementation of sex-segregated
classes in violation of Title IX. Plaintiff is a second year student at the University of
Cincinnati, majoring in Neuroscience and Chemistry with a concentration in pre-med and
1

All factual assertions are taken from Plaintiffs Verified Complaint for Injunctive and Declaratory Relief.
2

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 3 of 20 PAGEID #: 80

hopes to attend medical school. (Verified Complaint, 7). Defendant is a public university
created by the Ohio legislature.
During the Fall Semester 2015, in or around August 26, 2015, Helmicki was enrolled
in a UC physics lab of Dr. Larry Bortner, which was taught by his Teaching Assistant, Mr.
Mustafa El-Demery. On the first day of lab, Helmicki arrived and was told by ElDemery that women shouldnt be working with men in science. Plaintiff was then
ordered to sit and work only with the other female students. Helmicki was not given any
choice in the matter, but was simply informed that labs would be separated based upon sex.
(Verified Complaint, 32). At the time of the next scheduled physics lab, Helmicki arrived
prior to the start. As she approached the classroom, Mr. El-Demery looked at her directly
and closed the laboratory door, consequently locking her out of the classroom. Helmicki was
eventually let into the classroom by a fellow student well after the start of class. (Verified
Complaint, 34).
Helmicki was then singled out by Mr. El-Demery who blamed her for another female
students use of her cell phone, claiming she was responsible for ensuring the other female
student felt incorporated into the all-female group of students. (Verified Complaint, 35).
Frustrated and upset by being the victim of at least three overt acts of sexual discrimination
within just two class periods, Helmicki approached Dr. Bortner to discuss the matter. Rather
than condemning El-Demerys actions, however, Dr. Bortner ratified them, stating he agreed
with the same and claiming that it is the policy of the UC Physics Department to separate the
sexes in the classroom. (Verified Complaint, 36).
Helmicki returned to Dr. Bortners class, but the conduct of Dr. Bortner and Mr. ElDemery remained unchanged. As a result, rather than suffer continued discrimination and
disparate treatment on the basis of her sex, Helmicki was ultimately forced to make the
3

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 4 of 20 PAGEID #: 81

difficult decision to transfer to another laboratory class partway through her first semester of
her second year of college, which caused a significant disruption to her studies and class
schedule, as well as stress and humiliation. (Verified Complaint, 38). In addition, Helmicki
desires to take future physics labs without the threat of discrimination as enshrined by the
schools official policy and by the practice and procedure of its physics department managers
and employees (Verified Complaint, 67).
Thereafter, Helmicki learned an official Title IX report had been made by UCs Title
IX Coordinator, Ms. Shaffer in her name without her knowledge or consent. By the time she
met with Ms. Shaffer, she was informed the matter had been completely resolved and the
report would be included in her academic record. (Verified Complaint, 39-40).
Helmicki, through continued communication with her former classmates, has learned
that disparate treatment of the sexes, including but not limited to the practice of sexsegregation, continues to this day in the classroom of Dr. Bortner and Mr. El-Demery.
(Verified Complaint, 41). Plaintiff contacted Defendant UC, by and through counsel, and
demanded that the discriminatory practice cease and that Defendant UC institute certain
procedures and remedies to ensure the same. (Verified Complaint, 42).
Lori Ross, Associate General Counsel for UC, replied April 15, 2016 that
Additionally, it was through the proactive efforts of the Title IX office that a report was
even created the reporter being the Coordinator herself. She looked into the matter and
advised the professor of a better method in grouping his students. The professor has taken her
advice and changed his method of grouping students. (Verified Complaint, 43). Further,
Ms. Ross stated, The University on its own provided the professor with guidance on how
better to run his courses. The professor has implemented that guidance. To the extent Ms.
Helmicki is hearing reports, that students are still grouped according to sex, the reports are
4

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 5 of 20 PAGEID #: 82

either inaccurate, or perhaps by way of voluntary self-grouping by the students. (Verified

Complaint, 44). Ms. Ross endorsed and institutionalized the unlawful discriminatory policy
and practice of the university in stating, The university policies appear to have worked in
this instance. (Verified Complaint, 45). Finally, Ms. Ross concluded the matter by stating,
Once the university became aware of the situation, corrective guidance was issued. The
professor has abided by this guidance. (Verified Complaint, 46).
UCs own investigation confirmed the existence of the claimed discriminatory
practices, all of which are detailed through a series of emails back and forth primarily
between Ms. Shaffer, Dr. Bortner, her graduate student and Kathleen Koenig, an Associate
Professor with a joint appointment between Science Education and the Department of
Physics, all of which are referenced in the Complaint and attached thereto and hereby
incorporated herein. Ultimately, in her directive to Dr. Bortner, Ms. Shaffer provided
incorrect guidance under Title IX as a method to appropriately segregate the sexes in his
class. Specifically, she suggested:
1. If youre going to implement a research based method that involves grouping
people based on their sex, I would suggest that you do the following:
a. It should be a voluntary option available to the students
b. They should know in advance that there is a sex-based option available to
them, including why it is a research-based practice
c. They should be given the option to opt out and maintain their placement in
your course.
(Verified Complaint, 56).
She went on to write, The transparency on why youre having your lab groups
separated in a certain way, along with the option to not participate in that format, ensures that
no one is being discriminated against. Even though the methodology is shown in research to
benefit female students, not everyone learns best in that environment, and not everyone
would want that type of segregation if given the option. (Verified Complaint, 57). Then she
advised, You could provide the transparency by having [redacted] send out an e-mail in
5

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 6 of 20 PAGEID #: 83

advance of setting the groups to allow people to respond with whether or not they want to
participate in the sex-based grouping. It would be important for the men in the class to also
be aware, and be allowed to opt in or out, because it could create a discriminatory
environment for them to be grouped based on their sex without their consent. (Verified
Complaint, 58). Finally, Ms. Shaffer wrote, I hope this helps. We are happy to help with
these type of opportunities. I think its great youre looking at how to improve learning for
your students! (Verified Complaint, 59).
The guidance that Ms. Shaffer provided to Dr. Bortner applies to single-sex classes
in elementary and secondary schools, not colleges and universities and is inapposite to this
matter. (Verified Complaint, 60). Defendant UC, therefore, by and through its agents, has
institutionalized discriminatory practices in the classroom setting, in violation of Title IX.
(Verified Complaint, 61-62).
Through continued implementation of discriminatory sex-segregation policies in
violation of Title IX, the University has caused harm to the Plaintiff, including but not limited
to the violation of her statutory right against sex discrimination which is permanent,
irreparable and cannot be adequately compensated in money. For these reasons, Plaintiff
brings suit and has moved for a temporary restraining order and for a preliminary injunction
prohibiting Defendants violations.
II. LAW AND ARGUMENT
A.

Standard for Issuance of a Temporary Restraining Order and Preliminary

Injunction

When considering whether a temporary restraining order or preliminary injunction

should be granted, the Court is called upon to consider four factors: (1) whether the movant
has a strong likelihood of success on the merits; (2) whether the movant would otherwise
suffer irreparable injury; (3) whether the issuance of a temporary restraining order or
6

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 7 of 20 PAGEID #: 84

preliminary injunction would cause substantial harm to others; and (4) whether the public
interest would be served by the issuance of a temporary restraining order or preliminary
injunction. See McPherson v. Michigan High Sch. Athletic Assn, 119 F.3d 453, 459 (6th Cir.
1997) (en banc). These factors are to be balanced against one another and should not be
considered prerequisites to the granting of a temporary restraining order or preliminary
injunction. See United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio
Regl Transit Auth., 163 F.3d 341, 347 (6th Cir. 1998). This balance of interests weighs
strongly in favor of Plaintiff and the granting of the instant motion.
First, Plaintiff is highly likely to succeed on the merits because the Universitys sexsegregation policies are in direct violation of Title IX and violate the Equal Protection Class
of the United States Constitution. Second, Plaintiff faces irreparable harm. Third, injunctive
relief would not result in any injury to Defendants or to third parties, as Plaintiff merely
requests the unlawful policies be enjoined. Moreover, enjoining the same will benefit the
public by maximizing protection of citizens constitutional liberties. For purposes of
preliminary injunctive relief, it is always in the public interest to prevent violation of a
partys constitutional rights. Deja Vu of Nashville, Inc. v. Metro. Govt. of Nashville and
Davidson County, Tennessee, 274 F.3d 377 (6th Cir. 2001).
Irreparable harm is often presumed in cases involving the enforcement of civil rights.
See, e.g., Able v. United States, 847 F. Supp. 1038, 1043 (E.D.N.Y. 1994) (Possible
violation of constitutional rights [under Fifth and First Amendments] constitutes irreparable
harm.); Vietnamese Fishermans Assn v. Knights of the Ku Klux Klan, 543 F. Supp. 198,
218 (S.D. Tex. 1982) (Victims of discrimination suffer irreparable injury, regardless of
pecuniary damages.); Gresham v. Windrush Partners, Ltd., 730 F. 2d 1417, 1424 (11th Cir.
1984) (housing discrimination almost always results in irreparable injury).

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 8 of 20 PAGEID #: 85

B.

The Requirements of Title IX

Enacted in 1972, Title IX provides in relevant part as follows:

No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal financial
assistance
20 U.S.C. 1681(a).
The Civil Rights Restoration Act of 1987 made plain Congress intent that the
term program or activity as used in Title IX, applies to any program or activity so
long as any part of the public institution receives federal financial assistance. See 20
U.S.C. 1687. Title IX further provides, that, [I]n regard to admissions to educational
institutions, this section shall apply only to institutions of vocational education, professional
education, and graduate higher education, and to public institutions of undergraduate higher
education. 20 U.S.C. 1681(a).
Title IX also provides, For purposes of this chapter an educational institution means
any public or private preschool, elementary, or secondary school, or any institution of
vocational, professional, or higher education, except that in the case of an educational
institution composed of more than one school, college, or department which are
administratively separate units, such term means each such school, college, or department.
20 U.S.C. 1681(c). Thus, a university which receives any federal financial assistance
is prohibited from excluding individuals from any educational program or activity based on
the students sex.
In 1975, the Department of Health, Education and Welfare (the predecessor of
the United States Department of Education (DOE)) adopted regulations interpreting
Title IX. These regulations are codified at 34 C.F.R. Part 106 (the Regulations). 2 The

The DOE regulations adopting the HEW regulations are at 45 C.F.R. Part 86.
8

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 9 of 20 PAGEID #: 86

Regulations are enforced by the Office for Civil Rights (OCR) within DOE, and
are accorded substantial deference by the courts. S e e Cohen v. Brown University,
991 F.2d at 888, 896-7 (1st Cir. 1993).
Under 34 C.F.R. 106.31(a) of the Department of Educations Title IX regulations
also states, (a) General. Except as provided elsewhere in this part, no person shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research, occupational training, or other
education program or activity operated by a recipient which receives Federal financial
assistance. 34 C.F.R. 106.31(a).
Subsection (b) further states, in relevant part: Specific prohibitions. Except as
provided in this subpart, in providing any aid, benefit, or service to a student, a recipient shall
not, on the basis of sex:
(1) Treat one person differently from another in determining whether such
person satisfies any requirement or condition for the provision of such aid,
benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or
services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or
other treatment;
(5) Apply any rule concerning the domicile or residence of a student or
applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person which
discriminates on the basis of sex in providing any aid, benefit or service to
students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege,
advantage, or opportunity.
34 C.F.R. 106.31(b).
The regulation sets out various limited exceptions from this broad nondiscrimination
rule, permitting rules or policies creating single-sex educational programs or activities in
specific, limited contexts. No such exception applies to sex-segregated classrooms in
9

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 10 of 20 PAGEID #: 87

university or graduate programs, and none of the noted exceptions is applicable in the instant
action. Specifically, section (a) of 34 C.F.R. 106.34 provides, General standard. Except as
provided for in this section or otherwise in this part, a recipient shall not provide or otherwise
carry out any of its education programs or activities separately on the basis of sex, or require
or refuse participation therein by any of its students on the basis of sex. Pursuant to 34
C.F.R. 106.34(a), the discrete categories include the following: (1) Contact sports in
physical education classes. (2) Ability grouping in physical education classes. (3) Human
sexuality classesin elementary and secondary schools(4) Choruses...
In 2006, the Department of Education issued regulations identifying additional
conditions pursuant to which Title IX recipients may implement single-sex classes. These
regulations apply specifically to Single-Sex Elementary and Secondary Classes and
Extracurricular Activities (Title IX 2006 Regulations). These regulations are codified in 34
C.F.R. 106.34(b)3.
In addition, as guidance, the Department of Education has provided Other Federal
Legal Resources Related to Single-Sex Education and among the materials referenced
therein is its Brief for the United States as Amicus Curiae, filed in Doe v. Vermilion Parish
Sch. Bd. No 10-30378 (5th Cir.)(filed June 4, 2010) and available at
https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/vermillion_brief.pdf. None
of the exceptions for single-sex classes or activities as outlined in the Title IX 2006
Regulations or DOE guidance are applicable here.

However these regulations apply specifically to elementary or secondary schools and under Section(b)(ii) and (iii) within
elementary and secondary schools, the classes must be implemented in an evenhanded manner and student enrollment in a
single-sex class or extracurricular activity in those same schools must be completely voluntary. They also must be based
upon the recipients important objective, that is, (A) To improve educational achievement of its students, through a
recipient's overall established policy to provide diverse educational opportunities, provided that the single-sex nature of the
class or extracurricular activity is substantially related to achieving that objective; or (B) To meet 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.
10

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 11 of 20 PAGEID #: 88

C.

Plaintiff is Entitled to a Temporary Restraining Order and Preliminary

Injunction Enjoining the Universitys Policy on Sex-Segregation and
Unlawful Sex Discrimination

The Supreme Court has determined that Title IX is enforceable through an implied
private right of action and damages are available for an action brought under Title IX. Cohen
v. Brown U., 101 F.3d 155, 167 (1st Cir. 1996) citing Cannon v. University of Chicago, 441
U.S. 677, 702. The right to injunctive relief under Title IX appears to have been impliedly
accepted by the Supreme Court in Franklin. Id. citing Franklin v. Gwinnett County Pub. Sch.,
503 U.S. 60, 76 (1992). The illegal discriminatory sex-segregation policy instituted by the
University, both facially and as applied to Plaintiff, operates in violation of Title IX.
1. Plaintiff has a strong likelihood of success on the merits as Defendants
Continued Practice of Unlawful Sex-Segregation Violates Title IX
Plaintiffs strong likelihood of prevailing on the merits is attributable to the manifest
unconstitutionality of the Universitys sex-segregation policies as they expressly discriminate
against Plaintiff (and other female students) solely on the basis of sex. Within the context of
efforts to obtain preliminary injunctive relief to prevent violations of constitutional rights, the
'likelihood of success factor is often determinative. Connection Dist. Co. v. Reno, 154
F.3d 281, 288 (6th Cir. 1998).
To state a cause of action under Title IX, a plaintiff must show: (1) that he or she was
excluded from participation in, denied the benefits of, or subjected to discrimination in an
educational program; (2) that the program receives federal assistance; and (3) that the
exclusion from the program was on the basis of sex. See Seamons v. Snow, 84 F.3d 1226,
1232 (10th Cir. 1996) (citing Bougher v. University of Pittsburgh, 713 F.Supp. 139, 14344
(W.D.Pa.), aff'd, 882 F.2d 74 (3d Cir.1989)).
The Supreme Court has held that Title IXs prohibition on excluding students from
any educational program or activity based on their sex must be given a sweep as broad as its
11

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 12 of 20 PAGEID #: 89

language. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1983). Indeed, in
introducing the legislation, Title IXs sponsor, Senator Birch Bayh, specifically criticized
single-sex classrooms and explained that Title IX would prohibit such segregation. 4 Senator
Bayhs remarks, as those of the sponsor of the language ultimately enacted, are an
authoritative guide to the statutes construction. North Haven, 456 U.S. at 527.
In this case, Defendants decision to segregate classes by sex is in blatant violation of
Title IX of the Education Amendments of 1972. Title IX provides, No person in the United
States shall, on the basis of sex, be excluded from participation in . . . any education program
or activity receiving Federal financial assistance. 20 U.S.C. 1681(a) (emphasis added).
The University receives federal financial assistance. Obviously, by implementing and
encouraging a discriminatory policy based upon sex, Defendant UC violates this provision of
federal civil rights law.
a. The segregation at UC violates the Department of Education regulations
implementing Title IX
Classifications based on archaic assumptions are facially discriminating, and
actions resulting from an application of these attitudes constitutes intentional discrimination.
Horner v. Kentucky High Sch. Athletic Ass'n, 206 F.3d 685 (6th Cir. 2000). In addition, the
policy that UC now institutionalizes in its physics laboratory classes is deficient facially and
as applied. It is clearly, as was the case with Helmicki, subject to multiple misinterpretations
and arbitrary and capricious actions when placed in the hands of the one implementing such

4 118 Cong. Rec. 5806 (Feb. 28, 1972) (Unfortunately, the Office of Education does not keep complete statistics
on the number of programs or classes which are restricted in terms of sex; however, a survey of city boards of
education indicated that sex separation is the rule rather than the exception.); 118 Cong. Rec. 5807 (This portion
of the amendment covers discrimination in all areas where abuse has been mentioned . . . [including] access to
programs within the institution such as vocational education classes, and so forth.). See also Sex Discrimination
Regulations: Hearings before the Subcommittee on Postsecondary Education of the House Committee on Education
and Labor, 94th Congress, 1st Sess. 172 (1975) (statement of Sen. Bayh that Title IX was passed to rectify
discriminatory course offerings, among other purposes).
12

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 13 of 20 PAGEID #: 90

segregation, such that continued use of the same cannot overcome the level of scrutiny
required under a constitutional analysis.
While recently amended Title IX regulations purport to permit some sex-segregation
in coeducational schools, those regulations specifically apply only to elementary and
secondary schools and only under limited circumstances. Defendants, in providing only
portions of those guidelines to Dr. Bortner and otherwise implementing the policy of sexsegregation, have attempted to conflate those regulations to the university level. The
Department of Education intervened as an amici in Doe v. Vermilion Parish Sch. Bd., No. 1030378 (5th Cir.) (filed June 4, 2010) which involved single-sex classes. There the DOE
specifically wrote concerning interpretation of their 2006 Regulations:
Recognizing that the use of single-sex classes is an exception to the generally
accepted use of coeducational classes in public education, and that the use of gender
to differentiate between individuals has a history of discriminatory use, EDs
regulations, issued in 2006, generally prohibit a recipient from establishing single-sex
classes. The regulations provide for an exception in limited circumstances and only
when the recipient meets all of the requirements of the regulations. Under EDs Title
IX regulations, a recipient of federal financial assistancemay offer a single-sex
class only after first demonstrating that the single-sex class is based on one of the two
important objectives specified in the regulations and, in either case, that the singlegender nature of the class is substantially related to the objective. These two
objectives are: (1) to improve the educational achievement of a recipients students
through an established policy to provide diverse educational opportunities, or (2) to
meet the particular, identified educational needs of a recipients students. 34 C.F.R.
106.34(b)(1)(i)(A) & (B). 5
Even in the setting of an elementary school where the new guidance applies and after
implementation attempting to make the same voluntary, the DOE still determined that the
recipient failed to show that its decision to offer single-sex classes was based upon the
objectives set forth above and pointed to the lack of evidentiary support in establishing the
same. In the case at hand, this incorrect guidance formed the basis of the rationale UC
used that is clearly unequivocally inapposite. The University has attempted to substitute

DOE Amicus Brief filed in Doe v. Vermilion Parish Sch. Bd., No. 10-30378 (5th Cir.), p. 13.
13

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 14 of 20 PAGEID #: 91

incorrect guidance, and has failed to even comply with that minimal requirements of that
guidance. Thus, the implementation of these policies act in violation of Title IX which
prohibits the University from excluding any person from participation in or being
subjected to discrimination under any education program on the basis of sex.
b. Defendants Proposed Sex-Segregation Violates the Equal Protection Clause
A regulation that discriminates may not be upheld where sex is not a legitimate,
accurate proxy for existing differences. Craig v. Boren, 429 U.S. 190, 191 (1976). Once a
law is found to make a distinction on the basis of sex, the burden shifts to the defendants to
prove the rule bears a substantial relationship to an important state objective. Id. at 220. In
addition, the discriminatory means employed must be substantially related to the achievement
of those objectives, and this showing requires an exceedingly persuasive justification for
gender discrimination. Kovacevich v. Kent State U., 224 F.3d 806 (6th Cir. 2000).
As the Supreme Court explained in Admr of Massachusetts v. Feeney, the equal
protection guarantee of the Fourteenth Amendment does not take from the States all power of
classification. Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 271 (1979). Certain
classifications, however, in themselves supply a reason to infer antipathy. Id. at 272.
Classifications based upon gender, not unlike those based upon race, have traditionally been
the touchstone for pervasive and often subtle discrimination. Id. at 273.
The sex-segregation at UC violates the U.S. Constitution and the gender based
classifications themselves supply a reason to infer antipathy. In addition, administration of
the single-sex policy is subject to such a plethora of arbitrary and capricious actions, as
applied, that it fails to overcome the required constitutional scrutiny.
In United States v. Virginia, a case challenging the males-only admission policy at the
Virginia Military Institute (VMI), the United States Supreme Court made clear that under
equal protection analysis, parties who seek to defend gender-based government action must
14

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 15 of 20 PAGEID #: 92

demonstrate exceedingly persuasive justification for that action. U.S. v. Virginia, 518 U.S.
515 (1996). In justifying official classification based on gender under equal protection
analysis, the state must show at least that the challenged classification serves important
governmental objectives and that the discriminatory means employed are substantially related
to achievement of those objectives. Virginia, 518 U.S. 515.
VMI argued that [m]ales tend to need an atmosphere of adversativeness, while
[f]emales tend to thrive in a cooperative atmosphere. U.S. v. Virginia, 518 U.S. at 541. The
Supreme Court concluded, however, that even assuming these statements of the average
capacities and preferences of men and women were accurate, they were an impermissible
basis for VMIs discriminatory policy. The Court rejected Virginias argument that that
methodological differences are justified by the important differences between men and
women in learning and developmental needs, referring to generalizations about the way
women are, Id. at 517. The Supreme Court held that these estimates of what is appropriate
for most women, no longer justify denying opportunity to women whose talent and capacity
place them outside the average description. U.S. v. Virginia, 518 U.S. at 550.
Likewise, UCs supported policies of sex-segregated classes relies upon shallow
classifications that women shouldnt be working with men in science, which is
unsupportable under constitutional scrutiny as a permissible justification for sex-segregated
classes in public education. Overbroad classifications based on sex are precisely at issue in
the UC policy supporting sex-segregated classes. Defendants policy and practice are
premised on overbroad generalizations that the Court has found repeatedly cannot survive
constitutional muster. See Frontiero v. Richardson, 411 U.S. 677 (1973) (Under traditional
equal protection analysis, a legislative classification must be sustained unless it is patently
arbitrary and bears no rational relationship to a legitimate governmental interest.); See also
Reed v. Reed, 404 U.S. 71, 76 (1971) (A classification must be reasonable, not arbitrary, and
15

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 16 of 20 PAGEID #: 93

must rest upon some ground of difference having a fair and substantial relation to the object
of the legislation, so that all persons similarly circumstanced shall be treated alike.).
In order to provide equal educational opportunities to all students, both genders
should have ample opportunities to succeed. Excluding students of one sex from an
educational opportunity, or segregation of the sexes based on stereotypes of whether male
and female should work together in science, is clearly not substantially related to the success
of women in Physics. Such a classification supplies a reason to infer antipathy, and cannot
demonstrate the required exceedingly persuasive justification.
For the foregoing reasons, Plaintiff is likely to succeed in the claim that the sexsegregation policy endorsed by UC violates the Equal Protection Clause of the Constitution.
2. Should An Injunction Not Issue, Plaintiff Faces A Substantial Threat Of
Irreparable Harm
The allegations in the Verified Complaint establish that Plaintiff has been and will
continue to be irreparably harmed by the policy of sex discrimination as endorsed by the
University. Even in cases where a recipient has been found to be complying with Title IX at
the time of trial, courts have supported the issuing of an injunction based on past harm. See
Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 864 (9th Cir. 2014) (citing United
States v. Mass. Mar. Acad., 762 F.2d 142, 15758 (1st Cir.1985)). In Ollier, the plaintiff class
included future students, who were protected by the injunction. Id. Voluntary cessation does
not moot a case or controversy unless subsequent events ma[ke] it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur. Parents Involved in
Community Schools v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007).
Irreparable harm is often presumed in cases involving the enforcement of civil rights.
As the Supreme Court has held, the loss of a constitutional right for even minimal periods of
time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373
16

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 17 of 20 PAGEID #: 94

(1976). See also Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998)
(recognizing that the loss of First Amendment rights, for even a minimal period of time,
constitutes irreparable harm). When a party seeking preliminary injunction on the basis of a
constitutional right violation establishes likelihood of success on merits, irreparable harm is
presumed. See Am. Civ. Liberties Union of Kentucky v. McCreary County, Kentucky, 354
F.3d 438 (6th Cir. 2003), aff'd sub nom. McCreary County, Ky. v. Am. Civ. Liberties Union of
Ky., 545 U.S. 844 (2005). Courts have also held that a plaintiff can demonstrate that a denial
of an injunction will cause irreparable harm if the claim is based upon a violation of the
plaintiffs constitutional rights. Overstreet v. Lexington-Fayette Urb. County Govt., 305 F.3d
566, 578 (6th Cir. 2002)
Moreover, satisfaction of the first prong of the preliminary injunction standard
demonstrating a strong likelihood of success on the merits also satisfies the irreparable
injury standard. See Elrod v. Burns, 427 U.S. 347, 373 (1973) (holding that if a constitutional
right is being threatened or impaired, a finding of irreparable injury is mandated). Herein,
Plaintiff has undeniably demonstrated a substantial likelihood of success on the merits. Thus,
Plaintiff will suffer irreparable injury if Defendants are not immediately enjoined from
enforcing its unconstitutional policy.
A plaintiff's harm from the denial of a preliminary injunction is irreparable even if it
is not fully compensable by monetary damages. See Basicomputer Corp. v. Scott, 973 F.2d
507, 511 (6th Cir.1992). The presumption of irreparable harm entitling a movant to injunctive
relief also arises in circumstances such as those at issue here because monetary damages do
not provide an adequate remedy. Plaintiff has only completed her second year of a four year
program that will include additional attendance in classes in the Physics Department where
she is likely subject to continued policies of sex-segregation. In addition, Plaintiff desires to
take additional physics labs within the Physics Department without the threat of gender
17

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 18 of 20 PAGEID #: 95

discrimination. Thus, monetary damages are inadequate to compensate for Plaintiffs harm,
as alleged herein.
3. The Threatened Injury Far Outweighs Any Harm That Will Result If The
Injunction Is Granted
The University is required to operate as a fully coeducational institution offering
gender-integrated classrooms in compliance with Title IX that does not treat one person
differently from another or perpetuate discrimination in the provision of any aid, benefit,
or service on the basis of sex. 34 C.F.R. 106.31(b). Neither the University nor any students
will suffer any harm should an injunction be issued. The only effect on Defendants will be
the minor inconvenience of revising students course schedules to assure coeducational
classes. The harm to Plaintiffs right to be free from sex discrimination and her interest in the
educational benefits that flow from a diverse classroom far outweigh any inconvenience.
4. The Public Interest Will Be Served By Granting the Requested Relief
An injunction preventing Defendants from discriminating against Plaintiff by
enforcing sex-segregation based on gender stereotypes will serve the public interest. Of
course, the public interest is always served by ensuring compliance with the Constitution and
civil rights law. See G&V Lounge, Inc. v. Mich. Liquor Control Commn, 23 F.3d 1071, 1079
(6th Cir. 1994) (holding that it is always in the public interest to prevent violation of
constitutional rights) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979); Planned
Parenthood Association v. City of Cincinnati, 822 F.2d 1390 (6th Cir.1987)).
Moreover, in the case at hand, a policy of coeducation as provided by the
requirements of Title IX serves a compelling interest, given that interaction with diverse
people, cultures, and viewpoints, particularly those of the other gender, prepares students for
participation in diverse workforces and society. This principle was reinforced in U.S. v.
Virginia, when the Supreme Court stated, [T]he two sexes are not fungible; a community
18

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 19 of 20 PAGEID #: 96

made up exclusively of one [sex] is different from a community composed of both. Id. 518
U.S. at 533 citing Ballard v. United States, 329 U.S. 187, 193 (1946).
The public interest will be served if the University is required to comply with Title IX
and end its discriminatory sex-segregation policies. The purpose and value of sexsegregation to any University student is questionable at best and unsupported by objective
research and data. In addition, it stands in violation of the explicit requirements of Title IX
that No person in the United States shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any education program
or activity receiving Federal financial assistance. 20 U.S.C. 1681(a). Enjoining the
discriminatory policy, as noted herein, will require the University to comply with the law and
better advance the interest of students to be free from discrimination in the educational
setting by recipients as was intended by Title IX.
III. CONCLUSION
Defendants continued practice and policy of sex-segregated classes are in violation
of Title IX and the Equal Protection Clause and unduly infringe upon Plaintiffs right to be
free from intentional and pervasive gender-based discrimination in educational institutions.
Plaintiff respectfully requests that this Court issue a temporary restraining order
enjoining Defendants from continuing its policy endorsing implementation of single-sex
classes and an injunctive order preventing Defendants from treating one person
differently from another or continuing to perpetuate discrimination in the provision of any
aid, benefit, or service on the basis of sex in compliance with Title IX.

19

Case: 1:16-cv-00728-SJD Doc #: 2 Filed: 07/01/16 Page: 20 of 20 PAGEID #: 97

Respectfully submitted,
Michael K. Allen (0025214)
MICHAEL K. ALLEN & ASSOCIATES
810 Sycamore Street, 5th Floor
Cincinnati, OH 45202
513.321.5297
Mike@mkallenlaw.com
Trial Attorney for Plaintiff Casey Helmicki

/s/ Christopher P. Finney____________

Christopher P. Finney (0038998)
Kenneth R. Craycraft Jr. (0074253)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Boulevard, Suite 225
Cincinnati, Ohio 45245
513.943.6655(o)
Chris@FinneyLawFirm.com
Ken@FinneyLawFirm.com
Trial Attorneys for Plaintiff Casey Helmicki

CERTIFICATION
A copy of Plaintiffs Memorandum of Law in Support of her Motion for
Temporary Restraining Order and Preliminary Injunction has been emailed to
Defendants on this date, and shall be served on the named Defendants in
accordance with the Plaintiff's service obligations under Federal Rule of Civil
Procedure 4.
Dated: July 1, 2016

20