With his dissent in a sexual harassment case against a soccer coach, Judge Paul V. Niemeyer of the 4th U.S. Circuit Court of Appeals has demonstrated his complete inability to understand the dynamics of discrimination.

An en-banc panel of the 4th Circuit voted 8-2 earlier this month to reinstate the case of Melissa Jennings, who alleged coach Anson Dorrance created a hostile sexual environment in the women's soccer program at the University of North Carolina.

“Dorrance's persistent, sex-oriented discussions ... were degrading and humiliating to his players,” the majority opinion said, and “His conduct went far beyond simple teasing and qualified as sexual harassment.”

Among other things, the coach frequently questioned players about their sex lives, commented about their breasts and discussed his sexual fantasy of having an “Asian threesome.” At an evaluation meeting with Jennings, he asked her, “Who are you fucking?”

But to Niemeyer, this “sexual banter, while extensive and inappropriate,” did not amount to actionable harassment under Title IX of the Education Amendments Act of 1972.

The “Who are you fucking” inquiry, he said in his dissent, “clearly did not focus on sex or include an overture to sex,” and, in “the world of competitive collegiate athletics ... coaches, by necessity, have a much more casual and personal relationship with their student-athletes.”

“We can hardly apply the standards of the classroom or the courtroom to the language of the athletic field,” Niemeyer concluded.

The ultra-conservative judge may be correct about the general context of collegiate athletics. But as Judge M. Blane Michael, writing for the majority, noted, Dorrance “was and still is the most successful women's soccer coach in U.S. college history” and had “tremendous power and influence” over his players' future in the game.

“The disparity in power between Dorrance and his players trapped players into responding to his questions and enduring the environment,” Michael said.

In that evaluation meeting, Jennings was literally trapped “in a dark hotel room, knee-to-knee, bed not made, sitting at one of those tiny tables” as Dorrance quizzed her about her sex life.

Since his appointment to the 4th Circuit by Bush I in 1990, Niemeyer has compiled a sorry list of judicial horrors (see table). Last year, he showed his blindness to the specific realities of discrimination when he affirmed the dismissal of the case of a black man who was fired from his job after complaining about a co-worker's racist remark. Jordan v. Alternative Resources Corp., 458 F.3d 332.

Only Judge Karen J. Williams, a similarly extreme conservative appointed by Bush I in 1992, joined Niemeyer in his dissent in Jennings v. University of North Carolina.

By Matthew Heller
4/25/07