Navarro v. Florida Institute of Technology, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JOSHUA NAVARRO, BENJAMIN

KOMITA, JADEN KREKOW,

KYLE STEWART, MASON

YASKOVIC and THOMAS

FRANCIS,

Plaintiffs,

v. Case No. 6:22-cv-1950-CEM-EJK

FLORIDA INSTITUTE OF

TECHNOLOGY, INC.,

Defendant.

/

ORDER

THIS CAUSE is before the Court on Plaintiffs’ Motion for Preliminary

Injunction (“Motion,” Doc. 28), Defendant’s Response in Opposition (“Response,”

Doc. 37), and Plaintiffs’ Reply (“Reply,” Doc. 48). The Court held an evidentiary

hearing (“Hearing”) on the Motion. (See generally Min. Entry, Doc. 57). For the

reasons stated herein, the Motion will be granted.

I. BACKGROUND

Defendant Florida Institute of Technology, Inc. (“FIT”) is a private research

university in Melbourne, Florida that receives federal financial assistance. (Compl.,

Doc. 2, at 6; Answer, Doc. 24, at 5). In June 2022, FIT announced that it would

discontinue five varsity sports programs, including men’s rowing, and transition

each to club-level. (Doc. 2 at 13; Doc. 24 at 8–9). In October 2022, Plaintiffs filed

this lawsuit, alleging three violations of Title IX of the Education Amendments of

1972, 20 U.S.C. § 1681 (“Title IX”). (Doc. 2 at 18–19). Plaintiffs are six students at

FIT and former members of its defunct men’s rowing team, who bring this action

pursuant to Federal Rule of Civil Procedure 23(b)(2) on behalf of themselves and on

behalf of “a class or classes consisting of all present and future FIT male

undergraduate students—including currently enrolled students and prospective

students—who have sought, who seek, or who will seek to obtain the benefits of

intercollegiate athletics sponsored by FIT by participating in such.” (Id. at 27). The

Court has not yet determined whether to certify this action as a class action, see Fed.

R. Civ. P. 23(c)(1)(A), thus at this stage Plaintiffs proceed only as individual

litigants. Plaintiffs move for a preliminary injunction “immediately reinstating the

men’s rowing team at FIT until this case can be heard on the merits.” (Doc. 28 at

25).

II. LEGAL STANDARD

“The grant or denial of a preliminary injunction is a decision within the sound

discretion of the district court.” United States v. Lambert, 695 F.2d 536, 539 (11th

Cir. 1983). To obtain a preliminary injunction, the movant must sufficiently establish

that (1) “it has a substantial likelihood of success on the merits;” (2) “irreparable

injury will be suffered unless the injunction issues;” (3) “the threatened injury to the

movant outweighs whatever damage the proposed injunction may cause the

opposing party;” and (4) “the injunction would not be adverse to the public interest.”

Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011)

(quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)). “A

preliminary injunction, moreover, ‘is an extraordinary and drastic remedy not to be

granted unless the movant clearly establishes the burden of persuasion as to the four

requisites.’” Llovera v. Fla., 576 F. App’x 894, 896 (11th Cir. 2014) (per curiam)

(quoting Forsyth Cnty., 633 F.3d at 1039). “To carry its burden, a plaintiff seeking

a preliminary injunction must offer proof beyond unverified allegations in the

pleadings. Moreover, vague or conclusory affidavits are insufficient to satisfy the

plaintiff’s burden.” Palmer v. Braun, 155 F. Supp. 2d 1327, 1331 (M.D. Fla. 2001),

aff’d, 287 F.3d 1325, 1327 (11th Cir. 2002).

Failure to satisfy even one element for a preliminary injunction is fatal to

issuance of the injunction. Llovera, 576 F. App’x at 896. If the Court finds that

Plaintiffs have failed to carry their burden as to a single element, the Court need not

consider the remaining elements. Henry v. Nat’l Hous. P’ship, No. 1:06-cv-008-

SPM, 2006 WL 8443138, at *1 (N.D. Fla. Sept. 19, 2006) (“Where a plaintiff has

not carried his burden as to any one of the elements required for a preliminary

injunction, it is unnecessary to address the remaining elements.” (citing Jefferson

Cnty., 720 F.2d at 1519)).

III. ANALYSIS

Title IX provides that “[n]o 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). “Title IX reaches institutions and programs that

receive federal funds . . . which may include nonpublic institutions.” Fitzgerald v.

Barnstable Sch. Comm., 555 U.S. 246, 257 (2009). “The express statutory means of

enforcement is administrative,” however, “Title IX is also enforceable through an

implied private right of action.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 280–81 (1998) (citing Cannon v. Univ. of Chicago, 441 U.S. 677 (1979)).

Title IX “sketches wide policy lines, leaving the details to regulating

agencies.” Cohen v. Brown Univ., 991 F.2d 888, 893 (1st Cir. 1993). Congress

explicitly delegated to the Secretary of Health, Education and Welfare (“HEW”) the

task of promulgating regulations implementing Title IX, including prescribing

standards for “intercollegiate athletic activities.” Pub. L. No. 93–380, § 844, 88 Stat.

612 (1974). HEW,1 through its Office of Civil Rights (“OCR”), issued an official

1 In 1979, Congress divided HEW into the Department of Health and Human Services and

the Department of Education. See Department of Education Organization Act, 20 U.S.C. §§ 3401–

Policy Interpretation to guide the enforcement of Title IX in intercollegiate athletics.

44 Fed. Reg. 71,413–23. “It is well established that an agency’s construction of its

own regulations is entitled to substantial deference.” Martin v. Occupational Safety

& Health Review Comm’n, 499 U.S. 144, 149 (1991) (quotation omitted). This Court

must accord appreciable deference to the agency’s interpretation of Title IX given

its express authority pursuant to statutory delegation. See Chevron U.S.A. Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 844–85 (1984) (“If Congress has explicitly

left a gap for the agency to fill . . . [s]uch legislative regulations are given controlling

weight.”).

The Policy Interpretation delineates three major areas of regulatory

compliance. 44 Fed. Reg. 71,415–17. Divergence from Title IX’s mandate in any

one of these three areas constitutes a separate and distinct claim. See e.g., Beasley v.

Ala. State Univ., 966 F. Supp. 1117, 1122 (M.D. Ala. 1997); Favia v. Indiana Univ.

of Pa., 812 F. Supp. 578, 584–85 (W.D. Pa. 1993). Plaintiffs allege violations of all

three areas of Title IX regulatory compliance of intercollegiate athletics, (see Doc.

2 at 18–19), but whether FIT has “fail[ed] to provide to Plaintiffs equal athletic

participation opportunities, or to accommodate their interests and abilities” forms

the basis of Plaintiffs’ request for a preliminary injunction, (Doc. 28 at 7–8). To test

3510, Pub. L. 96–88 (1979). The Department of Education received HEW’s functions with respect

to educational programs. 20 U.S.C. § 3441(a)(3).

equal opportunity to participate in athletic programs, OCR considers “whether the

selection of sports and levels of competition effectively accommodate[s] the

interests and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1). OCR

assesses equality with respect to participation opportunities in any one of the

following ways:

(1) Whether intercollegiate level participation

opportunities for male and female students are provided in

numbers substantially proportionate to their respective

enrollments; or

(2) Where the members of one sex have been and are

underrepresented among intercollegiate athletes, whether

the institution can show a history and continuing practice

of program expansion which is demonstrably responsive

to the developing interest and abilities of the members of

that sex; or

(3) Where the members of one sex are underrepresented

among intercollegiate athletes, and the institution cannot

show a continuing practice of program expansion such as

that cited above, whether it can be demonstrated that the

interests and abilities of the members of that sex have been

fully and effectively accommodated by the present

program.

44 Fed. Reg. 71,418.

OCR issued a “Dear Colleague” letter to provide further guidance on what has

come to be known as the “three-part test.” U.S. Dep’t of Educ., Clarification of

Intercollegiate Athletics Policy Guidance: The Three-Part Test (Jan. 16, 1996),

https://www2.ed.gov/about/offices/list/ocr/docs/clarific.html (“1996 Letter”).2 The

1996 Letter confirmed that the three-part test provides institutions with “three

individual avenues to choose from” to remain compliant with Title IX. Id. Plaintiffs

assert that FIT fails to satisfy each part of the test, (Doc. 28 at 13, 19), and FIT

disputes this assertion only as to the first pathway, (Doc. 37 at 13), which “furnishes

a safe harbor for those institutions that have distributed athletic opportunities in

numbers ‘substantially proportionate’ to the gender composition of their student

bodies.” Cohen, 991 F.2d 897–98.

The 1996 Letter explained that “substantial proportionality” is the standard

because it is often “unreasonable to expect an institution to achieve exact

proportionality,” because, for example, of “natural fluctuations in enrollment and

participation rates or because it would be unreasonable to expect an institution to

add athletic opportunities in light of the small number of students that would have

to be accommodated to achieve exact proportionality.” 1996 Letter. Thus, there is

no “magic number at which substantial proportionality is achieved.” Equity In

Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 110 (4th Cir. 2011). Instead,

“substantial proportionality is determined on a case-by-case basis in light of ‘the

institution’s specific circumstances and the size of its athletic program.’” Biediger

v. Quinnipiac Univ., 691 F.3d 85, 94 (2d Cir. 2012) (quoting 1996 Letter).

2 A copy of the 1996 Letter was filed by Defendant at Docket Entry 37-5.

To determine substantial proportionality, OCR asks us to begin “with a

determination of the number of participation opportunities afforded to male and

female athletes in the intercollegiate athletic program.” 1996 Letter; see, e.g., Balow

v. Mich. State Univ., 24 F.4th 1051, 1056 (6th Cir. Feb. 1, 2022). “In making this

determination, we count only actual athletes, not unfilled slots, because Title IX

participation opportunities are real, not illusory.” Ollier v. Sweetwater Union High

Sch. Dist., 768 F.3d 843, 856 (9th Cir. 2014) (quotation omitted).

After determining the number of participants, the next step is to calculate the

participation gap, which is the “difference between the participation rate in an

institution’s intercollegiate athletic program and its full-time undergraduate student

enrollment.” 1996 Letter. The gap is substantially proportionate “when the number

of opportunities that would be required to achieve proportionality would not be

sufficient to sustain a viable team, i.e., a team for which there is a sufficient number

of interested and able students and enough available competition to sustain an

intercollegiate team.” Id.

A. Substantial Likelihood of Success on the Merits

The first prerequisite for obtaining a preliminary injunction—substantial

likelihood of success on the merits—“is generally the most important.” Schiavo ex

rel. Schindler v. Schiavo, 357 F. Supp. 2d 1378, 1383 (M.D. Fla. 2005), aff’d, 403

F.3d 1223, 1229 (11th Cir. 2005). “A substantial likelihood of success on the merits

requires a showing of only likely or probable, rather than certain, success.” Id.

(emphasis omitted). Nevertheless, “the movant may also have his motion granted

upon a lesser showing of a substantial case on the merits when the balance of the

equities . . . weighs heavily in favor of granting the stay.” Garcia–Mir v. Meese, 781

F.2d 1450, 1453 (11th Cir. 1986). Here, Plaintiffs must demonstrate a substantial

likelihood of success on their claim that they were discriminated by FIT’s failure to

provide equal athletic participation opportunities.

Plaintiffs allege that “in reviewing the data, FIT has fallen short, or had a

significant participation gap of male athletes, for 16 of the last 18 years.” (Doc. 28

at 16). Plaintiffs offer evidence that FIT’s enrollment for the 2018–2019 school year

was a total of 3,261 undergraduate students, comprised of 2,325 (71.3%) men and

936 (28.7%) women. (Lopiano Report, Doc. 28-2, at 12). Plaintiffs highlight 2018–

2019 instead of more recent years because, as their expert testified during the

hearing, the pandemic years are considered outliers due to the mandatory shut down

of schools. For 2018–2019, Plaintiffs offer evidence that FIT had a total of 533

athletes, 342 of which were men, and therefore, men represented only 64.2% of

athletes compared to their 71.3% undergraduate enrollment. (Id.). This represents a

shortfall of 132 athletic opportunities for men. (Id. at 15). Plaintiffs produced

evidence at the Hearing that FIT had a similar shortfall of 117 opportunities for men

in 2021–2022 and a shortfall of 121 opportunities for men in 2022–2023. (Pl.’s Hr’g

Ex. 1A; see also Doc. 28-2 at 21–25, 29–30). Plaintiffs argue that because FIT was

already in violation of Title IX, it could not legally cut a viable men’s team. (Doc.

28 at 19).

In response, FIT proposes a different calculation. FIT argues that Plaintiffs

cannot succeed on the merits because “[w]hen full-time undergraduates attending

[FIT’s online-only division] are included, along with esport student-athletes that

meet the definition of a Title IX participant, [FIT’s] application of the framework in

the 2021–2022 academic year led to a Participation Gap of three male students, or

.16%.” (Doc. 37 at 16). This would be a substantially proportionate participation gap

because a varsity team cannot be supported by just three students. However, FIT’s

math assumes two conditions: (1) its esports program offers genuine participation

opportunities for intercollegiate athletics and (2) full-time students enrolled in FIT’s

online-only division (“Florida Tech Online”) are properly counted in its total

enrollment for Title IX purposes. Plaintiffs underline the lack of precedent on these

two novel arguments. (See Doc. 28 at 15 n.11 (“Plaintiffs are unaware of any Title

IX case ever recognizing a fully online student—from wherever they may be

attending—as part of the full-time enrollment numbers for the substantial

participation prong.”); id. at 19 n.15 (“No court has ever opined that E-Sports meets

the definition of a sport for Title IX.”)). The Court will address these two conditions

in turn.

1. Esports as Genuine Participation Opportunities

In 2008, OCR issued another “Dear Colleague” letter, clarifying that it “does

not have a specific definition of the term ‘sport.’” U.S. Dep’t of Educ.,

Dear Colleague Letter: Athletic Activities Counted for Title IX Compliance (Sept.

17, 2008), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-

20080917.html (“2008 Letter”).3 OCR presumes that an institution’s established

sports can be counted for Title IX compliance purposes if the institution is a member

of an intercollegiate athletic organization, the most dominant being the National

Collegiate Athletic Association (“NCAA”), and if the organization’s

nondiscretionary requirements satisfy the factors announced by OCR. Id. When that

presumption is inapplicable, the institution’s activity is evaluated on a case-by-case

basis according to the same factors, which are “related to an activity’s structure,

administration, team preparation and competition.” Id. Importantly, OCR made clear

that its policy is to encourage compliance “in a flexible manner that expands, rather

than limits, student athletic opportunities.” Id. Therefore, OCR suggests an approach

that grants institutions “the flexibility to create athletics programs that are responsive

to the specific interests and abilities of their particular student bodies.” Id.

Esports describes the genre of competitive, organized video gaming. FIT

argues that its co-ed esports program, which is supported through its athletic

3 A copy of the 2008 Letter was filed by Defendant at Docket Entry 37-6.

department, provides qualifying athletic opportunities because “esport student-

athletes are treated similarly to other student-athletes on campus.” (Doc. 37 at 7).

Esport participants at FIT: “have access to the same support services, including

athletic trainers, as traditional student athletes”; are selected through tryouts; will be

eligible to receive scholarships beginning in Fall 2023; and prepare and compete “on

a set schedule, as determined by the National Association of Collegiate Esports and

National Esports Collegiate Conference.” (Joss Aff., Doc. 37-1, at 6). Plaintiffs do

not necessarily dispute FIT’s representations of its esports program but argue that

legally it is still not a sport within the purview of Title IX, focusing on the fact that

esports do not require athletic ability and are not governed in a manner necessary to

qualify as such. (See Doc. 28-2 at 27).

In Biediger, the Second Circuit evaluated the district court’s decision to hold

that competitive cheerleading does not yet qualify as a “sport.” 691 F.3d at 102–05.

No favorable presumption applied to competitive cheerleading because it was not

sanctioned by the NCAA. Id. The Second Circuit summarized the OCR factors

analyzed by the lower court and admitted that “although there are facts on both sides

of the argument, in the end, the balance tips decidedly against finding competitive

cheerleading presently to be a ‘sport.’” Id. The court recognized that Quinnipiac’s

athletic department structured and administered the competitive cheerleading

program consistent with its other varsity sports, and found that the practice time,

regimen, and venue were consistent as well. Id. Additionally, the length of the season

and even the “purpose of the team . . . [were] akin to that of other varsity sports.” Id.

However, certain shortcomings fatally distinguished competitive cheerleading from

traditional varsity sports, including a lack of off-campus recruitment, a uniform set

of rules, intercollegiate competition, or a progressive playoff system. Id.

Competitive cheerleading offered an example of a “close-call” application of

OCR’s factors. The same cannot be said about esports. After all, competitive

cheerleading is “physically challenging, requiring competitors to possess ‘strength,

agility, and grace.’” Id. In contrast, esports does not require athletic ability.

Additionally, “[t]here are over 13 different video games recognized in E-Sports

competition, with none of the rules for these games promulgated by an E-Sport

national governing organization (i.e., NCAA football rules). The games are owned

and created by a commercial vendor and leased to the players. Sport governance

associations have no control over the rules of the game itself.” (Doc. 28-2 at 27).

There is also no evidence that FIT’s esports program recruits off-campus or

competes in a progressive playoff system. Even accepting that FIT’s esport

participants “practice and compete,” there is no evidence that they do so “in a manner

consistent with the school’s other varsity teams.” Biediger, 691 F.3d at 103. Without

more, the Court cannot hold that FIT’s esports program provides genuine

participation opportunities under Title IX.

2. Florida Tech Online Students

By FIT’s own calculations, when its esports program is not considered for

Title IX purposes, FIT is not in compliance with Title IX’s requirements. (Pl.’s Hr’g

Ex. 1A (showing that even when online students are considered under the numbers

provided by FIT’s Athletic Director, FIT still has a participation gap of 62 for year

2021–2022)). Therefore, at this stage, the Court need not determine whether FIT’s

online-only students should be considered.4 Plaintiffs have established a substantial

likelihood of success on their Title IX claim.

B. Necessary to Prevent Irreparable Harm

Plaintiffs must establish that they will suffer irreparable injury absent issuance

of an injunction. Forsyth Cnty., 633 F.3d at 1039. “A showing of irreparable injury

is the sine qua non of injunctive relief.” Hoop Culture, Inc. v. Gap Inc., 648 F. App’x

981, 984 (11th Cir. 2016) (citing Siegel, 234 F.3d at 1176). “An injury is

4 However, the Court will note that the definition of “full-time students” FIT uses to support

its argument that online-only students should be considered is contained in the Federal Student

Aid Handbook, (Doc. 37-2 at 2), which obviously deals with student financial aid and not Title

IX. Moreover, that definition derives from regulations involving Title IV of the Higher Education

Act of 1965, 20 U.S.C. § 1070 et. seq. 2022–2023 Federal Student Aid Handbook, Vol. 2, 28

https://fsapartners.ed.gov/knowledge-center/fsa-handbook/pdf/2022-2023 (citing 34 C.F. R.

§ 668.2); 34 C.F.R. § 668.2(b) (providing definitions that “apply to all Title IV, [Higher Education

Act] programs,” including “[f]ull-time student”). Title IV deals with the operation of federal

“programs that disburse funds to students to help defray the costs of higher education,” including

“the Federal Pell Grant, the Federal Family Educational Loan Program, the William D. Ford

Federal Direct Loan Program, and the Federal Perkins Loan,” Urquilla-Diaz v. Kaplan Univ., 780

F.3d 1039, 1043 (11th Cir. 2015), and it is likely that the policy considerations behind the

definition of “full-time student” for student financial aid would differ from the policy

considerations behind the discrimination concerns encompassed by Title IX.

‘irreparable’ only if it cannot be undone through monetary remedies.” Ne. Fla.

Chapter of Ass’n of Gen. Contractors v. Jacksonville, 896 F.2d 1283, 1285 (11th

Cir. 1990). An injury must be actual and imminent not remote or speculative. Id.

“Mere injuries, however substantial, in terms of money . . . are not enough.” Id.

(quoting Sampson v. Murray, 415 U.S. 61, 90 (1974); accord United States v.

Jefferson Cnty., 720 F.2d 1511, 1520 (11th Cir. 1983)).

“Courts have consistently held that, given the fleeting nature of college

athletics, plaintiffs will suffer irreparable harm by losing the opportunity to

participate in their sport of choice on a continuous and uninterrupted basis.” Biediger

v. Quinnipiac Univ., 616 F. Supp. 2d 277, 291 (D. Conn. 2009); see also Brooks v.

State Coll. Area Sch. Dist., No. 4:22-cv-01335, 2022 U.S. Dist. LEXIS 217173, at

*19–20 & n.79 (M.D. Pa. Dec. 1, 2022) (collecting cases that are “demonstrative of

courts’ longstanding finding that lost opportunity in the context of student athletics

can be considered irreparable harm”); Mayerova v. E. Mich. Univ., 346 F. Supp. 3d

983, 997 (E.D. Mich. 2018) (stating that “[i]n general, courts have found that the

elimination of a women’s team creates irreparable harm when the plaintiffs have

demonstrated a strong likelihood of success on the merits of their Title IX claim”

and collecting cases); c.f. id. at 997–98 (addressing a minority of cases where the

courts “found irreparable harm to be lacking” and distinguishing those cases, noting

that they also “found that the plaintiffs were unlikely to succeed on the merits of

their Title IX claim”).

Plaintiffs argue that they “will suffer irreparable harm by losing any

opportunity to participate in their chosen intercollegiate sport and continuing that

sport on greater competitive stages.” (Doc. 28 at 3). Plaintiffs Benjamin Komita and

Mason Yaskovic testified to the harm they suffered when FIT abruptly revoked their

varsity status mid-summer, including the loss of coaches, incoming recruits, and the

ability to row in the fall 2022 season. (See also Komita Decl., Doc. 28-1, at 1–7;

Yaskovic Decl., id. at 29 (“Though all of this has dealt critical damage to the team

the greatest impact has been on the mental state of the athletes.”)). Plaintiffs stress

the timeliness of a preliminary injunction to allow them to race in the spring season.

(Doc. 28 at 22).

FIT argues that Plaintiffs’ delay in seeking relief undercuts their claim of

irreparable harm. (Doc. 37 at 9). See Wreal, LLC v. Amazon.com, Inc., 840 F.3d

1244, 1248 (11th Cir. 2016) (“A delay in seeking a preliminary injunction of even

only a few months—though not necessarily fatal—militates against a finding of

irreparable harm.”). Plaintiffs waited about six months from FIT’s announcement to

the filing of this Motion. FIT argues the delay shows that any harm is not imminent,

and therefore, there is no “need for speedy or urgent action to protect [Plaintiffs’]

rights before a case can be fully resolved on the merits.” (Doc. 37 at 9–10). However,

the record shows that Plaintiffs, through counsel, first notified FIT of their

representation and intention to sue in September 2022. (See generally Sept. 6, 2022

Letter, Doc. 48-2). Plaintiffs asked for “immediate receipt” of information on which

FIT relies on to assert any contention of Title IX compliance, including “NCAA

squad lists.” (Id. at 4). According to Plaintiffs, they did not receive squad lists until

the end of November. (Doc. 48 at 3). FIT cannot contribute to a delay and then

employ it to its advantage.

Additionally, citing out of circuit caselaw, FIT argues that Plaintiffs face no

irreparable harm because they did not lose their scholarships and all are free to

transfer to other colleges. (Doc. 37 at 10–11 (citing Equity in Athletics, Inc., 291 F.

App’x at 521; Miller v. Univ. of Cincinnati, No. 1:05-cv-764, 2007 WL 2783674, at

*11 (S.D. Ohio Sept. 21, 2007)). These cases are not analogous.

In Equity in Athletics, Inc., the defendant college was cutting athletic

programs in order to bring itself into compliance with Title IX, as opposed to the cut

resulting in a lack of compliance. 291 F. App’x at 520. Further, under Fourth Circuit

precedent, the standard for granting a preliminary injunction is slightly different than

that in the Eleventh Circuit—the Fourth Circuit “places the most emphasis on . . . the

balancing of the harms” to each party. Id. at 521. Therefore, “[i]f the likelihood of

success is remote, there must be a strong showing of the probability of irreparable

injury to justify the issuance of the injunction.” Id. (quotation omitted). The Equity

in Athletics, Inc. Court found that the district court did not abuse its discretion in

determining that there was not a likelihood of success on the merits and the harm to

the defendant college—financial cost as well as forcing the college to not be in

control of its compliance with Title IX—outweighed the harm to the plaintiffs given

that the plaintiffs were still permitted to keep their scholarships or transfer schools.

Id. at 521–22, 524. The facts and law of Equity in Athletics, Inc. are substantially

different than the circumstances at issue here, and therefore, that case holds little

persuasive value.

In Miller, the court also determined that the plaintiffs had failed to establish a

likelihood of success on the merits, noting “terminating the women’s rowing

program will not place the University in violation of the equal accommodation prong

of Title IX.”5 2007 WL 2783674 at *9. Moreover, in the discussion regarding

irreparable injury, the Miller Court noted that there was “no testimony directly on

the point” of any difficulties that the plaintiffs would have in transferring to another

comparable school with a rowing team. 2007 WL 2783674 at *11. The same cannot

be said here, both Komita and Yaskovic testified as to the difficulties they would

face with transferring to a different school, including the fact that they only had one

5 The plaintiffs also brought an Equal Protection claim and a Title IX retaliation claims, on

which the Miller Court also found that they had not shown a likelihood of success on the merits.

2007 WL 2783674 at *9, *11.

year left to row6 combined with the announcement occurring shortly before the

beginning of the school year. (See also Doc. 28-1 at 3 (explaining that “the decision

to cut the [men’s rowing team] was announced too late leaving me with no viable

options” to transfer); Stewart Aff., id., at 20 (“Since the announcement was so late,

I had no time to weigh my other options academically or athletically.”)).

Unlike the cases cited by FIT, Plaintiffs here have established a strong

likelihood of success on the merits of their claims and they presented substantial

evidence of irreparable harm. FIT “give[s] insufficient consideration to the unique

circumstances college athletes face, making short shrift of the brief time-span in

which they are permitted to compete.” Biediger, 616 F. Supp. 2d at 292. For these

reasons, Plaintiffs have satisfied the irreparable injury prong.

C. Balance of Harms

The Court must balance the harms faced by Plaintiffs and FIT. Plaintiffs argue

that “[a]t most, [FIT’s] harm would be the expenditure of funds, which is the exact

counter to the definition of an irreparable injury.” (Doc. 28 at 23). FIT argues that

“immediately reinstat[ing] the men’s rowing team to its varsity level would inflict

significant harm” on it. (Doc. 37 at 17). Be that as it may, the harm associated with

a Title IX violation is serious and “financial concerns alone cannot justify gender

discrimination.” Haffer v. Temple Univ, 678 F. Supp. 517, 530 (E.D. Pa. 1987).

6 Komita is in his last year of eligibility and Yaskovic is in his senior year.

Therefore, “the Court is unsympathetic to [FIT’s] claims that it will be unduly

harmed by the expenditure of funds necessary to level the playing field.” Daniels v.

Sch. Bd. of Brevard Cnty., Fla., 985 F. Supp. 1458, 1462 (M.D. Fla. 1997). In short,

the balance of harm favors Plaintiffs.

D. Public Interest

Finally, the Court considers the public’s interest in this case. The public has a

compelling interest in eradicating gender discrimination and promoting compliance

with Title IX. See Daniels, 985 F. Supp. at 1462 (“[T]he public at large, will benefit

from a shift to equal treatment.”); Portz v. St. Cloud State Univ., 196 F. Supp. 3d

963, 978 (D. Minn. 2016) (“[T]he public’s interest in eradicating sex discrimination

is compelling.”); Favia, 812 F. Supp. at 585 (W.D. Pa. 1993) (“The public has a

strong interest in the prevention of any violation of constitutional rights.”).

Especially because Plaintiffs established a likelihood of succeeding on the merits of

their Title IX claim, the public’s interest weighs in favor of a preliminary injunction.

See Ohlensehlen v. Univ. of Iowa, 509 F. Supp. 3d 1085, 1104–05 (S.D. Iowa 2020).

Accordingly, Plaintiffs have sufficiently satisfied the fourth and final prong

for obtaining a preliminary injunction. Having satisfied all four prerequisites,

Plaintiffs’ request for an injunction will be granted.

E. Bond

Federal Rule of Civil Procedure 65(c) states, inter alia, that “[t]he court may

issue a preliminary injunction . . . only if the movant gives security in an amount that

the court considers proper to pay the costs and damages sustained by any party found

to have been wrongfully enjoined or restrained.” However, “it is well-established

that the amount of security required by the rule is a matter within the discretion of

the trial court . . . [, and] the court may elect to require no security at all.” BellSouth

Telecomms., 425 F.3d at 971 (citation and internal quotations omitted).

“Furthermore, ‘[a] bond may not be required, or may be minimal, when the harm to

the enjoined party is slight.’” Lepper v. Franks, No. 5:18-cv-644-Oc-41PRL, 2019

U.S. Dist. LEXIS 5468, at *7 (M.D. Fla. Jan. 11, 2019); Tancogne v. Tomjai Enters.

Corp., 408 F. Supp. 2d 1237, 1252 (S.D. Fla. 2005).

Plaintiffs “seek excusal from the bond requirement since they are young

student athletes with limited resources.” (Doc. 28 at 25 n.18). Because this lawsuit

is a form of public interest litigation, the Court will exercise discretion in this case

and elect to require no security at all. See City of Atlanta v. Metro. Atlanta Rapid

Transit Auth., 636 F.2d 1084, 1094 (5th Cir. 1981) (“[P]laintiffs were engaged in

public-interest litigation, an area in which the courts have recognized an exception

to the Rule 65 security requirement.”); Daniels, 985 F. Supp. at 1462.

IV. REMEDY

Plaintiffs have satisfied their burden of clearly establishing that they are

entitled to preliminary injunctive relief temporarily reinstating the men’s rowing

team. The award of individual relief to private litigants who have brought their own

suit “is not only sensible but is also fully consistent with—and in some cases even

necessary to—the orderly enforcement of” Title IX. Cannon, 441 U.S. at 705–06.

FIT notes that Title IX “provides institutions with flexibility and choice regarding

how they will provide nondiscriminatory participation opportunities” and that FIT

could “choose to eliminate or cap [women’s] teams as a way of complying with part

one of the three-part test.” (Doc. 38 at 18) (quoting 1996 Letter). However, FIT’s

violation of Title IX in these circumstances has resulted in particularized irreparable

harm to these specific Plaintiffs, so the Court exercises its broad discretion to

“protect against irreparable injury and preserve the status quo until the [Court]

renders a meaningful decision on the merits.” Schiavo ex rel. Schindler, 403 F.3d at

1231.

V. CONCLUSION

In accordance with the foregoing, it is ORDERED AND ADJUDED as

follows:

1. Plaintiffs’ Motion for Preliminary Injunction (Doc. 28) is GRANTED.

2. FIT shall:

a. as soon as possible, but no later than February 24, 2023,

reinstate the men’s rowing team to its varsity intercollegiate

status;

b. on or before March 12, 2023, provide the men’s rowing team

with full funding, staffing, and other benefits commensurate with

its status as a varsity-level intercollegiate team.7

c. If there are compelling reasons that FIT is unable to comply with

the March 12, 2023 deadline despite due diligence, it must notify

the Court in writing on or before 5:00 PM on March 3, 2023.

3. FIT is PRELIMINARY ENJOINED

a. from taking any action in furtherance of eliminating the men’s

rowing team or any men’s intercollegiate athletic team at the

institution pending a full trial on the merits or until the Court

orders otherwise;

b. from retaliating against Plaintiffs in any manner for asserting

their legal rights in this case.

4. No bond is required.

7 FIT may request the Court for additional time to comply with this Order if it can show

due diligence and a compelling reason for an extension.

DONE and ORDERED in Orlando, Florida on February 17, 2023.

CARLOS E. MENDOZA

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record