United States District Court, D. New Jersey
Scott Phillips, On Behalf of Himself and as Guardian Ad Litem B.P. and K.P.
Archdiocese of Newark, St. Theresa School, St. Theresa Church et al.,
LETTER OPINION AND ORDER
Chambers of Leda Dunn Wettre, United States Magistrate Judge.
the Court is a dispute concerning the scope of the
"limited discovery" ordered by the Court "on
the issue of whether St. Theresa's School is a recipient
of federal funds within the meaning of Title IX" of the
Education Amendments Act, 20 U.S.C. § 1681 et
seq. ECF 69. Whether Title IX applies to the claims in
this lawsuit is a threshold issue for the Court in
determining whether there is subject matter jurisdiction over
this action, as such jurisdiction is premised solely on the
existence of a federal question (Title IX) under 28 U.S.C.
§1331. See Complaint, ECF 1, Exh. A
(hereinafter, "Complaint"), at 19. Several
settlement conferences over me past several monms having
failed to resolve this action, the Court now rules on the
dispute as set forth in the parties1 joint letter of June 10,
2019. ECF 81.
by way of background, plaintiff alleges that his three
children suffered various forms of mistreatment by the
defendants while attending Saint Theresa's School
("STS") in Kenilworth, New Jersey. STS is owned and
operated by Saint Theresa's R.C. Church (collectively,
the entities will therefore be referred to as "Saint
Theresa's"). Saint Theresa's operates within the
Archdiocese of Newark (the "Archdiocese").
Specifically relevant to this dispute is plaintiffs
allegation that defendants violated Title IX by prohibiting
his daughter S.P. from playing on Saint Theresa's boys
basketball team when there was no comparable girls' team
for her age group and skill level. See Complaint
¶¶ 35-66, Count One at 19.
issue for the Court is what discovery is relevant and
proportional, within the meaning of Federal Rule of Civil
Procedure 26(b), to the Court's determination of whether
Saint Theresa's receives funding that subjects it to the
mandates of Title IX. That statute generally requires that
"[n]o person ... on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected
to discrimination under any educational program or activity
receiving Federal Financial assistance." 20 U.S.C.
§ 1681(a). A "program or activity" receiving
federal funding includes "all of the operations of... a
local educational agency..., system of vocational education,
or other school system." 20 U.S.C. § 1687 (2)(B).
Thus, if any part of a "school system" receives
federal financial assistance, all the operations of that
school system are subject to the provisions of Title IX.
See National Collegiate Athletic Ass'n v. Smith,
525 U.S. 459, 466 (1999); Smith v. National Collegiate
Athletic Ass'n, 266 F.3d 152, 160 (3d Cir. 2001)
("an entity may receive federal financial assistance
indirectly and still be considered a recipient for purposes
of Title IX"); Russo v. Diocese of Greensburg,
2010 WL 3656579, at *4 (W.D.Pa. Sept. 15, 2010) ("the
prohibition on discrimination applied to the entire
institution and all of its operations, programs, and
activities whenever it received any federal funds at
all"); Valesky v. Aquinas Acad., No. CIV. A.
09-800, 2011 WL 4102584, at *10 (W.D. Pa. Sept. 14, 2011) (a
"recipient" of federal financial assistance
includes any private institution to whom federal financial
assistance is extended through another recipient).
Saint Theresa's and the Archdiocese object to plaintiffs
written discovery demands, which seek information about
federal funding received not only by Saint Theresa's but
also by the Archdiocese. They contend that because Saint
Theresa's is separately incorporated from the
Archdiocese, it is its own "school system" within
the meaning of Title IX and that, therefore, discovery about
federal funding should not go beyond the funding received by
Saint Theresa's per se. Defendants also seem to assert
that discovery should be further limited to some subset of
federal funding received by Saint Theresa's. Plaintiff,
on me other hand, argues that courts within this Circuit have
not considered separate incorporation dispositive on the
issue of defining the relevant "school system" that
receives federal funding and that it should have broader
discovery into any federal financial assistance received by
an entity mat may be deemed by the District Judge to form
part of the "school system" of which Saint
Theresa's is a part.
deciding this dispute, the Court is mindful that me evidence
adduced during this period of limited discovery on federal
funding will be used to determine whether Title DC applies to
this action and therefore whether this Court has subject
matter jurisdiction over this action. It will be for the able
District Judge to determine in deciding that motion how to
define the relevant "school system" that receives
federal funding, and whether that funding is of a nature and
at a level that subjects the school system to Title IX's
requirements. Therefore, it would be inappropriate for the
undersigned to deny plaintiff discovery that is relevant and
proportional to that analysis.
is no binding authority that requires the Court to deny
discovery of federal funding received by the Archdiocese
based on its being separately incorporated from Saint
Theresa's. And persuasive authority within this Circuit
has found that the issue of incorporation is not controlling
in defining the "school system" at issue. In
Valesky, for instance, the District Court in
determining the scope of the "school system" for
purposes of Title IX looked beyond the separate legal status
of the school at issue from the Diocese in holding that
"the Diocese and [school] may not rely solely on their
legal status to shield them from their obligations under
Title DC." 2011 WL 4102584, at *8. Instead, in
determining what the "other school system" was
under Title DC in that case, the court analyzed the
interrelationship of the Diocese and the school in various
ways, including looking at whether the Diocese appointed
officials who played a role in governing the school at issue,
whether the finances of the school and Diocese were
intertwined, and what administrative and technological
support the Diocese gave the school. See Id. at *11.
The court concluded: "Given the extensive involvement,
both administratively and financially, of the Diocese with
the Diocesan schools, including Aquinas [the school at
issue], I find that the Diocese constitutes an 'other
school system' for purposes of Title IX."
Id. As discovery here, if not unduly restricted,
could potentially lead to a similar conclusion, the Court
finds that it would not be appropriate to preclude plaintiff
from taking discovery of the Archdiocese on the sole basis
that it is separately incorporated from Saint Theresa's.
the Court will allow discovery into the interrelationship of
the activities of Saint Theresa's and the Archdiocese
that may bear on whether they form part of the same
"school system" under Title DC. It will further
allow discovery into the federal funds received by Saint
Theresa's and the Archdiocese and how the Archdiocese
uses federal funds for STS and other parochial schools within
the Archdiocese that may potentially be deemed part of the
same "school system," including the nature and
amount of those funds over the relevant time period to this
lawsuit. Further, the Court does not limit this discovery to
only a subset of federal programs, as urged by defendants,
given the expansive language in Title IX to the contrary.
See 20 U.S.C. § 1687 (2)(B); National
Collegiate Athletic Ass'n, 525 U.S. at 466;
Russo, 2010 WL 3656579, at *4.
does not entitle plaintiff, however, to exhaustive discovery
into these subjects of the type it previously propounded.
See ECF 79 at 56 to 63. In order to keep discovery
proportional to the issues most relevant to the Title IX
funding analysis, plaintiff may serve up to five (5)
interrogatories each on Saint Theresa's and the
Archdiocese calling for them to provide information initially
in a summary manner, such as by answering interrogatories
summarizing their receipt and distribution of federal funds.
Plaintiff may then use the defendants' interrogatory
responses to craft targeted requests for production that are
designed to test and probe the specifics of the information
provided by the defendants.
accordance with the foregoing, plaintiff may serve revised
sets of interrogatories on the defendants within seven days
of this Order. Defendants are directed to respond to such
interrogatories within 21 days of service. Plaintiff may then
serve revised requests for production within seven days of
receipt of defendants' interrogatory responses, and
defendants shall produce responsive information within 21
days of receipt of the demands. This Court shall hold a telephone
status conference on January 15, 2020, at 11:30 a.m. to set a
schedule for further motion practice on the Title DC funding
 The Court is cognizant that these time
periods may be impacted by the year-end holidays, and it
leaves it to counsel to agree to appropriate adjustments to
account for the holidays; however, all written discovery
should be completed by the time of the Court's status
telephone conference with counsel. The Court sets the above
time frame to connote its expectation that this limited
discovery be taken on a ...