One issue that the court addressed this week was the plaintiffs’
decision to pursue this litigation as a class action. The class action is an
important litigation strategy to plaintiffs in Title IX athletics cases because
without it, lawsuits are vulnerable to dismissal for lack of standing after the
plaintiffs graduate. Here, the court
agreed to certify the class over some objections by the university, but it did
modify the description of the class to ensure it wasn’t overly broad. Now, the class
of plaintiffs include “all present, prospective, and future students at Saint
Cloud State who are harmed by and want to end sex discrimination in the
allocation of athletic opportunities, the allocation of athletic financial
assistance, and the allocation of benefits provided to varsity athletes.” The
italicized language was added by the court, which used as a model a
similarly-defined class that was certified in the Quinnipiac case.
More significantly, the court narrowed the scope of the
plaintiff’s case by granting the university’s motion to dismiss the plaintiffs’
claims for money damages arising from the alleged discrimination in the
allocation of athletic scholarships. Title IX is a spending clause statute,
expressly requiring that universities refrain from sex discrimination as a
condition for federal funding. Though the Court has permitted private lawsuits
to seek money damages from institutions that violate Title IX, the plaintiffs
in such cases must prove that the institution engaged in intentional
discrimination. Decisions that reflect
official university policy are intentional, as are unofficial decisions that
the university fails to remedy despite being on notice of the fact that they
are discriminatory. Here, the court agreed with Saint Cloud State that the
university’s allocation of athletic scholarships was not official university
policy; nor did university officials have notice of the fact that the harm to
plaintiffs resulting from the alleged discriminatory allocation. This conclusion, which the court supports by
citing a 2001 Eighth Circuit decision called Grandson v. University of Minnesota, is concerning to me (and I’ve criticized its application in other cases as well.). An athletic department is
strategic and intentional about how many scholarships to offer. In this case
especially, the plaintiffs allege that the disparity in scholarships results
from the athletic department’s decision to include too few women’s sports in
the tiers that receive full scholarship support. The decision to tier one’s athletic offerings
is surely an official decision, isn’t it?
The court also granted the university’s motion to dismiss
the plaintiffs’ Equal Protection claim on the grounds that the state has not
waived its sovereign immunity to be sued for violations of the 14th
Amendment.
Lastly, the court addressed the scope of testimony of the
plaintiff’s expert witness, Dr. Donna Lopiano. Lopiano, a former athletic
director and advocate who currently serves as gender equity consultant. Here,
the court agreed with the university’s argument that the law prohibits expert
witnesses to testify about legal requirements or to provide legal
conclusions. Yet, the court ruled that
Dr. Lopiano is permitted to testify about her own findings about the
university’s compliance with equal opportunity, equal treatment, and
scholarship provisions of Title IX, as well as Title IX compliance at other
institutions.
Portz v. St. Cloud State Univ., 2018 WL 1050405 (D. Minn.
Feb. 26, 2018).
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