Petition for Writ of Certiorari — Grandson v. University of Minnesota

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all F ILEO VS.

v 011261 FEB 1 @ 2002

No. ___OBBICE OF THE CLERK

- =

In The

Supreme Court of the United States

JULIE GRANDSON, ET AL.,

Petitioners,

UNIVERSITY OF MINNESOTA, ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court

Of Appeals For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Diane M. HENSON Boyce C. CaBANISS

Counsel of Record Texas Bar No. 03579950

Texas Bar No. 09492950 Graves, DOUGHERTY,

Law Firm OF HEARON & Moopy

Diane M. HENSON A Professional Corporation

8911 N. Capital of 515 Congress Avenue,

Texas Highway Suite 2300

Westech 2, Suite 2120 P. O. Box 98

Austin, TX 78759 Austin, TX 78767-0098

(512) 345-8544, Ext. 102 (512) 480-5600

(512) 345-9469 (facsimile) (512) 478-1976 (facsimile)

LANeELLE MCNAMARA

Texas Bar No. 13817300

McNamara & McNaAMARA

501 Franklin Avenue,

Suite 500

Waco, TX 76701

(254) 754-5456

(254) 753-0719 (facsimile)

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

VWF

QUESTION PRESENTED

What is the proper standard under Title IX of the

Education Amendments of 1972, 20 U.S.C. § 1681, et seq.,

for awarding monetary damages against an educational

institution for past discrimination in denying female stu-

dents equal athletic scholarship and participation oppor-

tunities?

PARTIES TO THE PROCEEDING

Petitioners, Julie Grandson, Jennifer A. Thompson,

Renata D. Lindahl, Ginger M. Jeffries, Alexandra L.

Wongstrom and Paula Olson, are all individuals with no

corporate affiliations. Respondent, University of Minne-

sota, Duluth (“UMD”), is a public state university. The

individual Respondents, Lawrence Ianni, Kathryn Martin,

Gregory Fox, Bruce McLeod, Julie Bleyhl, Jean Keffler,

Jessica Phillips, Stanley Sahlstrom, William Peterson,

Wendell Anderson, Patricia Spence, Warren Larson,

Hyron Kim, William Hogan, Thomas Reagan, Nils Has-

selmo and H. Bryan Noel, are all employees of UMD or

regents of the University of Minnesota System, with no

known corporate affiliations.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .........2.ccccccccccccess i

PARTIES TO THE PROCEEDING ................-- ii

TABLE OF AUTHORITIES .............----.-eeeeee Vv

PETITION FOR A WRIT OF CERTIORARI ......... 1

OPINIONS BELOW .... 2c cccscccccccccccccescsccee 1

TUREISDICTION 0.02. c ccc ccccccccccccccccsnsescscsses 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED .........cccccccccccscccsccees 1

STATEMENT OF THE CASE.............------05+- +

I. UMD’s History of Intentional Noncompliance

TN Bhs oc kv etre cceccccccccscecsesevsesas +

MI. Plaintiffs’ Claims .........ccccccccccccccsesces 10

A. Women’s Soccer ..........0.ccescecccecece 10

B. Women’s Ice Hockey............--++++++:: 12

III. The Women’s Special Allocation and Proceed-

ings Before the District Court..........-....-. 15

IV. The Decision of the Court of Appeals......... 18

REASONS FOR GRANTING THE PETITION ....... 18

I. Title IX and Gender Equity in College and High

Been AMIOUED 2... o nn cccccccccccccccsesseess 19

II. The Importance of Monetary Damages......... 21

A. Gebser, Davis and the Standard for Awarding

Damages Under Title IX in Sexual Harass-

SE MD 6 i ccéaw ce usdacdaccNccancesseecs 23

TABLE OF CONTENTS - Continued

Page

B. A Split in the Circuits Exists Over the Stan-

dard for Assessing Monetary Damages in

Title IX Cases Involving Discrimination in

the Provision of Athletic Opportunities .... 24

URE 60 bbe dwurceadsentueedseuseeeniwe sche 29

TABLE OF AUTHORITIES

Page

CasES

Cohen v. Brown University,

101 F.3d 155 (ist Cir. 1996), cert. denied, 520 U.S.

1206 COGP) icc dccs eissstatiansasaseresss 19, 20, 22

Cohen v. Brown University,

991 F.2d 888 (1st Cir. 1993) ........... cece eee eeee 23

Davis v. Monroe County Board of Education,

526 U.S. 629, 119 S. Ct. 1661 (1999)............ 24, 25

Franklin v. Gwinnett County Public Schools,

503 U.S. 60, 112 S. Ct. 1028 (1992) ............. 21, 23

Gebser v. Lago Vista Ind. Sch. Dist., . |

524 U.S. 274, 118 S. Ct. 1989 (1998) ........... passim

Horner v. Kentucky High School Athletic Ass’n,

206 F.3d 685 (6th Cir.), cert denied, 531 U.S. 824

Vi) :) Per erererryeT er err Ts reer ec rt 27, 28

Pederson v. Louisiana State University,

213 F.3d 858 (5th Cir. 2000)................05-- 26, 27

CONSTITUTION

Fourteenth Amendment to the United States Con-

etifetion, Section 1... .sccsccsatcaarsassarnaupanns 1

STATUTES AND REGULATIONS

20 USC. § 16618) «0000. ccecsese tain 1

y Bik vos Be.” |) PPeperPErerrrrrrer rr rr cr rrr. 1

34 CER. © 1OG37 soos ccnccisccapncsccsennqunenesntnas 2

34 CER. 6 10GB) «oo ck cae vnune cveunensutnse anes 3

34 CER. § 10G641(d). .....2.000ccccccscwssemersadannus 3

64 Fed. Rae. 74,410 GO cee ee 3

TABLE OF AUTHORITIES - Continued

OrHEeR AUTHORITIES

Deborah Brake and Elizabeth Catlin,

Setting a Course for College Athletics: The Path of

Most Resistance: The Long Road Toward Gender

Equity in Intercollegiate Athletics, 3 Duke J. Gen-

Get L. & POMGY Si (ISPS) ooo cscccicccccsccceses

Diane Heckman,

Scoreboard: A Concise Chronological Twenty-Five

Year History of Title IX Involving Interscholastic

and Intercollegiate Athletics, 7 Seton Hall J. Sports

LL. S01 CIGRT) occ cccssccsceeavaueecsens eee

Laura J. Kolpin,

Has Title IX Delivered An “Air Ball” to Coaches of

Women's Athletics, 45 Drake L. Rev. 253 (1997) ....

Sara A. Elliott & Daniel S. Mason,

Gender Equity in Intercollegiate Athletics: An

Alternative Model to Achieving Title IX Compli-

ance, 11 J. Legal Aspects of Sport 1 (2001) .....

Sudha Setty,

Leveling the Playing Field: Reforming the Office for

Civil Rights to Achieve Better Title IX Enforcement,

32 Colum. J.L. & Soc. Probs. 331 (1999)........

United States Department of Education,

Title IX: 25 years of Progress, June 1997.........

Page

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Julie Grandson, Jennifer A. Thompson,

Renata D. Lindahl, Ginger M. Jeffries, Alexandra L.

Wongstrom and Paula Olson, respectfully pray that a writ

for certiorari issue to review the opinion and judgment of

the United States Court of Appeals for the Eighth Circuit

entered in the above proceedings on November 20, 2001.

OPINIONS BELOW

The opinion of the court of appeals is reported at 272

F.3d 568 (8th Cir. 2001) and is reprinted in Appendix A,

infra. The relevant orders of the magistrate judge and the

district court, all of which are unpublished, are reprinted

in Appendix B, Appendix C and Appendix D, infra.

JURISDICTION

The court of appeals entered its judgment on Novem-

ber 20, 2001. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the United

States Constitution provides in relevant part:

No state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.

Title IX of the Education Amendments of 1972, 20

U.S.C. § 1681(a) provides in relevant part:

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 educational program

Or activity receiving federal financial assis-

tance. ...

In the Education Amendments of 1974, Congress directed

regulations to be promulgated under Title IX expressly

addressing gender discrimination in intercollegiate athle-

tics:

The Secretary shall prepare and publish, not

more than 30 days after August 21, 1974, pro-

posed regulations implementing the provisions

of this chapter regarding prohibition of sex dis-

crimination in federally assisted programs,

including reasonable regulations for intercollegiate

athletic activities considering the nature of the par-

ticular sport.

(Emphasis added.) In 1975, the Department of Health,

Education and Welfare (“HEW”), under the direction of

Casper Weinberger, completed Title IX regulations.

Regarding financial assistance, those regulations provide

that, in providing financial assistance to any of its stu-

dents, a recipient shall not:

(1) on the basis of sex, provide different

amounts or types of such assistance, limit eligi-

bility for such assistance which is of any partic-

ular type or source, apply different criteria, or

otherwise discriminate.

34 C.F.R. § 106.37. With regard to the provision of equal

participation opportunities to male and female student

athletes, the regulations provide:

A recipient which operates or sponsors inter-

scholastic, intercollegiate, club or intramural

athletics shall provide equal athletic oppor-

tunity for members of both sexes. In determin-

ing whether equal opportunities are available

the Director will consider, among other factors:

(1) Whether the selection of sports and

levels of competition effectively accommodate

the interests and abilities of members of both

sexes. ...

34 C.F.R. § 106.41(c). The regulations provided that inter-

collegiate athletic programs were required to bring them-

selves into compliance within three years. 34 C.FR.

§ 106.41(d). The regulations became law on July 21, 1975.

In 1978, HEW issued a Policy Interpretation clarify-

ing its Title IX regulations. The Policy Interpretation set

out a three-part test for determining whether a university

is complying with Title IX and the regulations by effec-

tively accommodating, in the “selection of sports and

levels of competition,” the interests and abilities of both

sexes:

(1) Whether intercollegiate level participation

opportunities for male and female students are

provided in numbers substantially proportion-

ate 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 his-

tory and continuing practice of program expan-

sion 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 under-

represented among intercollegiate athletes, and

the institution cannot show a continuing prac-

tice 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. at 71,418 (1979). After notice and extensive

comment, the Policy Interpretation was published in final

form in 1979.

STATEMENT OF THE CASE

When Petitioners filed their lawsuits against UMD in

1997, UMD’s intercollegiate athletic program had been in

knowing and egregious violation of Title IX for almost 20

years. Beginning in the late 1970’s, UMD repeatedly

acknowledged that its intercollegiate athletic program

was not in compliance with Title IX. Despite repeated,

numerous demands from students, parents and commu-

nity groups, and despite a special appropriation from the

Minnesota Legislature for the express purpose of bring-

ing UMD’s athletic program into compliance with Title

IX, UMD failed to take the necessary steps to end dis-

crimination in its athletic program. Instead, UMD

adopted a policy of delay and foot dragging until these

lawsuits were filed. Petitioners seek compensatory dam-

ages for the injuries they sustained as a result of UMD’s

intentional failure to comply with Title IX.

I. UMD’s History of Intentional Noncompliance with

Title IX

For over 20 years UMD has been aware that its

intercollegiate athletic program was not in compliance

with Title IX with regard to both the provision of partici-

pation opportunities and funding, including the funding

of scholarships for female athletes. Despite this aware-

ness and despite repeated demands from students, par-

ents, community groups and state government, UMD

refused to take the necessary steps to end its acknowl-

edged gender-based discrimination until forced to do so

by the filing of these lawsuits.

1979. In a March 6, 1979 memorandum, Linda Larson,

UMD’s Women’s Athletic Coordinator, informed UMD’s

Provost that the discriminatory funding of women’s ath-

letics violated Title IX and that legal action would be

taken unless funding improved:

With the pressures being exerted by the young

women in our programs, I feel that it is only fair

to inform you that unless funds become avail-

able to properly support our programs, legal

action will be initiated. There is no question that

we are in violation of Title IX and it is my opinion

that there is sufficient evidence to prove bias in

the distribution of funds for women’s programs

within the University system.

CAP App. 164 (emphasis added).1 UMD’s Provost for-

warded the memo to Vice President Stanley Kegler with

the added comments that he was also aware of com-

plaints from UMD’s female athletes:

I have been expecting such a memo for some

time now. The women in our athletic program

have complained to Ralph Romano [UMD’s Ath-

letic Director] several times this year about the

low level of funding of their programs and have

finally decided to appeal to a “higher court.”

+ * *

I would urge the Central Administration to

address the problem now before we are all

embarrassed by a law suit.

CAP App. 165.

1980. The problem of discriminatory funding was not

well-received by UMD’s administration. In a May 22,

1980 internal memorandum from UMD’s Provost's Office

dealing with the funding of women’s teams, the subject

1 “CAP App.” followed by a page number refers to a

document contained in the Appendix to Appellants’

(Petitioners’) Brief filed with the court of appeals.

was described as “UMD’s Albatross - Sometimes Called

Women’s Athletics.” CAP App. 166. That same memoran-

dum referred to a new funding package and stated that

with regard to threatened Title IX lawsuits “we should be

in a reasonable shape, but with no fat,” barring a disaster

such as a “too successful women’s program requiring a

lot of national tournament travel.” Id.

1981. The new funding package was still discrimina-

tory. In a letter dated May 11, 1981, addressed to Regent

Michael Unger and copied to all relevant UMD officials,

the UMD Student Concerns Committee threatened legal

action “to bring to an immediate end this second class

status of UMD women’s athletics.” CAP App. 168. On

June 10, 1981, the Duluth Herald reported threats of a Title

IX lawsuit against UMD and quoted Ralph Romano,

UMD’s Athletic Director, as saying that he was “con-

cerned with funding shortages.” CAP App. 169.

1982-83. In response to the widespread complaints

about funding of its women’s athletic program, UMD

eliminated two women teams, swimming and skiing. CAP

App. 170, 346-48. Not surprisingly, complaints about

UMD’s discriminatory treatment of its women’s athletic

program continued. In a letter to UMD’s Provost dated

October 5, 1983, and signed by 300 parents, the former

director of UMD’s Alumni Association asked that UMD

reinstate the swimming program it had just eliminated.

CAP App. 171-84.

1984. In a letter dated April 16, 1984, the President of

the UMD Student Association, wrote to UMD’s President

complaining about funding for women athletes: “Repeat-

ing, it is vital that UMD’s Women’s Athletics program no

longer be forced to suffer the injustice of inadequate

funding.” CAP App. 185. A 1984 UMD document entitled

“Disparity of Funding for UMD Women’s Intercollegiate

Athletics” contains the following statement:

This problem of inequity for UMD women has

been existent [sic] for ten years. There have been

innumerable promises by the University Presi-

dent and various Vice Presidents that the prob-

lem exists and steps would be taken to solve the

problem.

CAP App. 186.

1987-91. Under increasing pressure to address dis-

criminatory treatment of women’s athletics, UMD added

a women’s golf team in 1987, which was immediately

successful. CAP App. 187-89. In 1989, UMD also added

women’s cross-country skiing. CAP App. 190. Two years

later, in 1991, claiming lack of funds, UMD eliminated

both the women’s cross-country ski team and, despite its

success, the women’s golf team. CAP App. 191-94, 349-50.

Prior to the elimination of these teams during the 1990-91

school year, the female participation rate in intercollegi-

ate athletics at UMD was only 26%. Addendum to Appel-

lants’ (Petitioners’) Brief filed with the court of appeals at

Tab 11. It dropped even lower after the eliminations. Id.

1992. After the elimination of women’s skiing and

golf, UMD was even more keenly aware of its noncom-

pliance with Title IX. In April 1992, UMD’s Vice Presi-

dent, Greg Fox, sent UMD’s Athletic Director, Bruce

McLeod, a memo requesting a report on UMD’s Title IX

compliance “so the Chancellor and I can be prepared to

answer any questions which may come up concerning

those issues at UMD.” CAP App. 195. On May 6, 1992,

Eleanor Rynda, the long-standing women’s track and

cross-country coach, met with Greg Fox to complain

about UMD’s discriminatory treatment of women ath-

letes. CAP App. 303.

1993. During the next several years, the pressure on

UMD to bring its athletic program into compliance with

Title IX by expanding participation opportunities and

funding increased. In response, UMD continued to delay.

UMD acknowledged that its athletic program was dis-

criminatory under Title IX, claimed it was working on it,

and then did nothing. In June 1993, UMD produced a

“Gender Equity Statement” in which it acknowledged

that its intercollegiate athletic program had not attained

gender equity and that “[t]o reach this equity amongst

the athletic programs at UMD, the total program should

be taken into consideration.” CAP App. 196. The State-

ment acknowledged that total female participation in the

UMD intercollegiate athletic program was only 31.2% and

that the percentage of athletic scholarship dollars going

to women was even worse — 22.2%. CAP App. 197. The

goals set out in the statement to achieve gender equity

are remarkably trivial - a female participation rate of

only 35% and a total financial support figure for the

women’s program of only 26.3%. CAP App. 198.

1994-95. On May 15, 1994, the Duluth News-Tribune, in

an article on Title IX, quoted Bruce McLeod, UMD’s Ath-

letic Director, as acknowledging that UMD was not in

compliance with Title IX: “It’s scary, but I hope the gen-

eral public would understand that we know we aren’t

where we should be.” CAP App. 207. McLeod added that

UMD was “trying-real hard” to reach Title IX compliance.

Id. But there was no indication that UMD was doing

anything to achieve Title IX compliance. A year after

McLeod’s statement, in the 1995-96 academic year, UMD

had over twice as many male intercollegiate athletes than

female, 253 male versus 122 female, for a female partici-

pation rate of 32.5%. Addendum to Appellants’ (Peti-

tioners’) Brief filed with the court of appeals at Tab 9, p.

2; CAP App. 209. Women’s teams received 18.3% of total

operating expenses and only 17.7% of total recruiting

expenditures. Id. at pp. 4, 5; CAP App. 211-12. Of the

$380,392 in athletically-related student aid, $311,069 or

81.8% went to male students and only $69,323 or 18.2%

went to female students. Id. at 5; CAP App. 212. These

figures were worse than those for 1992-93. Indeed, the

participation rate for women athletes was better in 1978.

Addendum to Appellants’ (Petitioners’) Brief filed with

the court of appeals at Tab 11. }

1996-97. The next year, 1996-97, while the participa-

tion rate improved to 37%, the total number of women

athletes was less than it had been in 1978. Addendum to

Appellants’ (Petitioners’) Brief filed with the court of

appeals at Tabs 12 and 13. Of the $476,632 in athletically-

related student aid awarded to UMD students during the

1996-97 academic year, $402,593 or 84.5% went to male

students and only $74,038 or 15.5% went to female stu-

dents. Id. These figures represented an increase from the

previous year of $91,524 in student aid awarded to male

athletes and an increase of only $4,715 awarded to female

athletes. Compare Addendum to Appellants’ (Petitioners’)

Brief filed with the court of appeals, Tab 9, p. 5 with CAP

App. 218. These figures demonstrate that UMD was mak-

ing no real progress toward gender equity and Title IX

compliance, but in several important areas was actually

losing ground. These lawsuits were filed in early 1997.

In September 1996, the United States Department of

Education’s Office of Civil Rights (“OCR”) had filed an

administrative complaint against UMD based on its long-

standing violations of Title IX. On April 2, 1997, two

months after Petitioner Julie Grandson filed her lawsuit,

UMD, while denying any past or present violations of

Title IX, entered into an agreement with OCR in which it

agreed to increase participation opportunities for women

by expanding squad sizes from 122 to 134 in 1996-97, and

to 137 in 1997-98, and to ensure that male and female

varsity athletes “are provided equivalent opportunities to

receive athletic financial assistance.” CAP App. 299.

UMD also agreed to submit periodic status reports “sum-

marizing its efforts to carry out” the terms of the agree-

ment. CAP App. 301. OCR’s investigation did not address

UMD’s failure to field a women’s Division I sports team

equivalent to UMD’s Division I men’s ice hockey team.

As a result, in the OCR settlement UMD was not required

to elevate women’s hockey or any other women’s sport to

Division I status.?

II. Plaintiffs’ Claims

A. Women’s Soccer

UMD added a varsity Division II women’s soccer

team in 1994. Addendum to Appellants’ (Petitioners’)

Brief filed with the court of appeals, Tab 7, p. 3; CAP

App. 143. It recruited talented high school players like

Julie Grandson with the promise of adequate funding and

2 OCR has no authority to award monetary damages for

past violations of Title IX. OCR has also been criticized for

inconsistent and ineffective enforcement of Title IX in the area of

equal athletic opportunity. See, e.g., Sudha Setty, Leveling the

Playing Field: Reforming the Office for Civil Rights to Achieve Better

Title IX Enforcement, 32 Colum. J.L. & Soc. Probs. 331 (1999).

scholarships - and then completely failed to deliver. In

the spring of 1995, UMD cut the already impoverished

women’s soccer budget and women’s tennis budget by

$500 each. CAP App. 243. This was during the same year

that the men’s ice hockey program was $128,000 over

budget and the men’s football program was $75,000 over

budget. CAP App. 244, 341. It was also during the same

year in which the men’s hockey team’s budget for hockey

sticks was more than the entire budget for women’s soc-

cer. CAP App. 207, 246. Grandson played for two seasons

with no scholarship and little support from UMD before

quitting for lack of money to pay expenses. CAP App. 27.

On August 15, 1996, Grandson advised UMD’s Direc-

tor of Equal Opportunity that she intended to file a

lawsuit based on UMD’s discriminatory treatment of the

women’s soccer team. CAP App. 241. In addition to

UMD’s refusal to fund scholarships for female soccer

players, she made the following additional complaints:

The team did not have balls; they had to buy

their own. The team did not have uniforms; they

had to use club uniforms. Practice time was not

equal - women had to wait for practice until

football players completed theirs, and the

women had to be quiet when football players

were in the weight room. Trainers conveyed the

attitude that soccer wasn’t a worthwhile sport.

Part of Doc Roach’s salary is from the State

Special, but he spends the majority of his time

with the football team. The mode of transporta-

tion for the women’s soccer team is different —

they have to take a bus which frequently breaks

down. Female soccer players are assigned to

sleep 4 to a room; men’s hockey sleeps 2 to a

room.

Id. On August 19, 1996, Grandson’s complaints were for-

warded to Greg Fox, UMD’s Vice Chancellor for Finance

and Operations and acting Athletic Director. Id.

Julie Grandson was not the only female soccer player

to complain of discriminatory treatment by UMD. Indeed,

the entire soccer team presented a list of the same com-

plaints to Linda Larson, UMD’s Women’s Athletic Coor-

dinator: CAP App. 242. |

Receiving no response from UMD to her or her

team’s complaints after waiting six months, on February

3, 1997, Grandson filed this lawsuit seeking monetary

damages under Title IX. Three days later, UMD

announced it would begin to provide soccer scholarships,

but claimed that it was not in response to Grandson’s

lawsuit and that soccer scholarships had “always been-a

part of our plan.” CAP App. 247. At his deposition,

however, former UMD Athletic Director, Bruce McLeod,

stated that to his knowledge UMD had never had a plan

to provide soccer scholarships. CAP App. 339.

B. Women’s Ice Hockey

UMD’s strategy of stalling on Title IX compliance is

also illustrated by its response to increasing demands

that it add women’s hockey as a varsity sport. UMD had

long maintained a men’s Division I ice hockey team, the

highest level of competition in intercollegiate athletics.

UMD had never fielded a Division I women’s team of any

sort and supported women’s ice hockey only at a club

level. UMD was aware that this situation violated Title

IX. In April 1993, the University of Minnesota System

sent a memo to each campus, including UMD directing

that:

Each campus with a men’s varsity level hockey

team and a women’s club level hockey team

shall analyze the campus responsibility for Title

IX equity as it applies to this disparity and shall

report its plan to ensure equity to the education

committees by January 15, 1994.

CAP App. 221. While the University of Minnesota Twin

Cities responded to this memorandum by immediately

adding a Division I women’s ice hockey team, UMD did

not, despite numerous requests that it do the same. In

1995, a detailed proposal for adding women’s ice hockey

was submitted to UMD which demonstrated the neces-

sary interest among students, competition at other

schools, etc. CAP App. 222-27. Local newspapers began

to support the idea of adding a women’s hockey team. In

a memorandum dated October 31, 1995, UMD’s Athletic

Director brought several of these articles and their impli-

cations for UMD’s Title IX compliance to the attention of

UMD’s Vice President, Greg Fox. CAP App. 228-30. In a

letter dated October 18, 1996, the Women’s Resource and

Action Center at UMD sent UMD Chancellor Kathryn

Martin a letter expressing concerns about Title IX and

requesting that the women’s club hockey team be ele-

vated to Division I status. CAP App. 232. In a letter dated

January 13, 1997, the Duluth Women’s Commission urged

UMD to elevate women’s hockey to a varsity sport. CAP

App. 233.

Finally, in a letter dated April 19, 1997, after Julie

Grandson had already filed her lawsuit, three female

hockey players at UMD, including Petitioner Renata Lin-

dahl, formally requested UMD to elevate the women’s

club hockey team to a Division I varsity team equal to the

men’s team. CAP App. 235, 351-52. UMD’s response was

swift and to the point - “No.” The day after Plaintiff

Lindahl, et al., made their request, UMD Chancellor

Kathryn Martin publically stated that there would be no

Division I women’s hockey team at UMD because there

was no money for such a team. CAP App. 236. Faced with

this flat refusal by UMD, Petitioners Renata Lindahl,

Jennifer Thompson and Ginger M. Jeffries filed suit

against UMD and the individual Defendants seeking

injunctive relief requiring UMD to end gender discrimi-

nation in its intercollegiate athletic program by increasing

the total number of participation opportunities for

women and by adding a Division I women’s team equiva-

lent to the men’s ice hockey team. CAP App. 37-59.

Plaintiffs did not specify which women’s team should be

elevated to Division I status, but suggested either ice

hockey or soccer because of the demonstrated student

interest in each of those sports. CAP App. 40. Plaintiffs

sought to represent a class consisting of all female stu-

dents currently enrolled at UMD or who will be enrolled

at UMD prior to the conclusion of this lawsuit who desire

the opportunity to participate in intercollegiate athletics

at the varsity level but have been denied such oppor-

tunity by UMD’s discriminatory practices and funding of

women’s athletics which results in inadequate participa-

tion opportunities for female students at the varsity level.

CAP App. 39-40.

Several months after Plaintiffs filed suit, UMD

announced it would field a women’s Division I ice

hockey team, but not until the 1999-2000 school year and

without full scholarsitips until 2002-03 and full funding

until 2003-04. CAP App. 237-40. Both Christine Grant, the

Women’s Athletic Director at the University of lowa, and

Donna Lopiano, the Director of the Women’s Sports

Foundation and former Director of Intercollegiate Athle-

tics for Women at the University of Texas at Austin,

submitted detailed affidavits opining, based on their

extensive experience with intercollegiate women’s athle-

tics, that there were no justifiable reasons for UMD to

delay adding a Division I women’s ice hockey team until

the 1999-2000 academic year. CAP App. 306-37. In 2001,

during only its second year of existence, the UMD

women’s ice hockey team won the Division I national

championship. Because of UMD’s long years of delay in

fielding a Division I women’s team, Petitioners and the

other female hockey players who were students at UMD

when these lawsuits were filed were deprived of the

many benefits of playing on a championship team.

III. The Women’s Special Allocation and Proceedings

Before the District Court

During the summer of 1997, after these lawsuits were

filed, Plaintiffs learned that UMD had been diverting

revenues generated by the women’s athletic program to

subsidize men’s athletics. During that same summer, a

Minnesota Legislative Audit Report revealed that UMD

had, since 1975, received over $8 million in funds appro-

priated by the Minnesota Legislature for the express pur-

pose of bringing its athletic program into compliance

with Title IX and that UMD had misused a portion of that

money to subsidize men’s athletics. CAP App. 264-98.

Because this Court had ruled that educational institutions

with actual knowledge of gender discrimination that fail

to rectify that discrimination are liable for compensatory

damages under Title IX,- Plaintiffs Thompson, Lindahl

and Jeffries sought leave on July 30, 1997 to amend their

pleadings to enlarge the class they proposed to represent

a ee

to include current and former students asserting claims

for damages caused by UMD’s intentional discrimination

against women athletes in violation of Title IX. Petitioner

Julie Grandson had included a claim for monetary dam-

ages in her original complaint. |

On July 31, 1997, UMD filed a motion to dismiss both |

lawsuits, arguing that as a state university the Eleventh

Amendment prevented it from being subject to Title IX at

all. UMD also argued that Petitioners’ claims were

mooted by UMD’s settlement with OCR and by UMD’s

announcement that it would field a Division I women’s

ice hockey team by the 1999-2000 school year. On Decem-

ber 18, 1997 the magistrate judge denied without preju-

dice Petitioners’ motion to amend their complaint to add

a claim for damages, ruling that it was premature while

UMD’s motion to dismiss was pending. CAP App. 93.

On March 16, 1998 the district court denied UMD’s

motion to dismiss in full. CAP App. 95-114. On April 23,

1998 Petitioners refiled their motion to amend their com-

plaint to add a claim for monetary damages. CAP App.

60-91. Plaintiffs also sought to add two new plaintiffs,

Alexandra Wongstrom, a golfer, and Paula Olson, a rugby

player. CAP App. 64-65. On July 23, 1998 the magistrate

judge denied Petitioners’ motion to amend their plead-

ings. Appendix B, infra. The magistrate judge ruled that

any amendment seeking compensatory damages would

be futile under the standard announced a few weeks |

before in Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274,

118 S. Ct. 1989 (1998), because petitioners had not alleged

in their amended complaint that they had personally

brought UMD’s gender discrimination in its athletic pro-

gram to the attention of any UMD official. App. 18-19. On

the same day, the magistrate judge recommended that

See eS

Petitioners’ class allegations be struck. On August 17,

1998, the district court, without comment or analysis,

summarily affirmed the magistrate judge’s order denying

Petitioners’ motion to amend. Appendix C, App. 20. The

district court also ordered that Petitioners’ class allega-

tions be struck, again without comment. CAP App.

138-40.

On June 23, 1998, UMD filed a motion for summary

judgment in both cases. On January 15, 1999 the district

court granted both motions. Appendix D, infra. The court

held that because Petitioners Jennifer Thompson and Gin-

ger Jeffries had exhausted their NCAA eligibility they

could not benefit from injunctive relief, the only relief

sought due to the court’s denial of Petitioners’ motion to

amend to add claims for monetary damages. Therefore,

Petitioners’ claims for injunctive relief were moot. App.

29-31. The court noted that Julie Grandson’s claim for

damages was not moot but granted summary judgment

nonetheless. Id. The court ruled that because Grandson

had failed to allege that she had personally complained to

UMD about UMD’s unequal treatment of women athletes,

under the standard announced in Gebser she was not

entitled to monetary damages as a matter of law. Id. at

7-8.

3 Because the district court denied Plaintiffs’ motion to

amend, Plaintiffs’ proposed class of former and current students

seeking monetary damages for UMD’s past intentional

discrimination was not affected by the district court’s order

striking class allegations. If Petitioners are allowed to amend

their complaint, a class action for damages will therefore

survive.

IV. The Decision of the Court of Appeals

The United States Court of Appeals for the Eighth

Circuit adopted the district court’s determination that the

standard for determining an educational institution’s lia-

bility for a teacher’s sexual harassment announced in

Gebser also applied to cases involving allegations that an

academic institution intentionally discriminated on the

basis of.sex by denying female students equal athletic

scholarship and participation opportunities. The court of

appeals ruled that Julie Grandson in her original com-

plaint and the remaining Petitioners in their amended

complaint, even though both alleged intentional discrimi-

nation by UMD, had not specifically alleged that they had

themselves complained to a UMD official with authority

to address the discrimination and that that official had

responded with deliberate indifference, as required in

sexual harassment cases under Gebser, 272 F.3d at 575-76;

App. 10-13. The court concluded that because the allega-

tions in Petitioners’ complaints failed to satisfy the stan-

dard set out in Gebser for awarding monetary damages in

sexual harassment cases, Petitioners had failed to state a

claim for damages against UMD for discrimination in the

provision of equal athletic scholarship and participation

opportunities. Id.

REASONS FOR GRANTING THE PETITION

These cases present the Court with an opportunity to

provide much needed guidance on an important question

of Title IX jurisprudence over which the courts of appeal

are badly split: What is the proper standard for determin-

ing when an educational institution is subject to mone-

tary damages under Title IX for denying female students

equal athletic opportunities? The Court has granted cer-

tiorari in three separate cases to define the contours of an

educational institution’s liability for monetary damages

under Title IX for sexual harassment. However, the Court

has never addressed the same issue in the much different

but equally important context of an educational institu-

tion’s failure as a matter of policy to provide equal athle-

tic opportunities to male and female students. As a result,

three different courts of appeals have reached three dif-

ferent conclusions regarding the proper standard to be

applied under such circumstances.

I. Title IX and Gender Equity in College and High

School Athletics

In an Olympic year which marks the 30th anniver-

sary of Title IX, no one can seriously dispute the enor-

mous impact that this statute has had on the strength of

the women’s athletic movement in the United States.4 As

the First Circuit stated in its seminal Title IX decision in

Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996), cert.

denied, 520 U.S. 1186 (1997):

4 As set out by the United States Department of Education,

prior to the enactment of Title IX scholarships and participation

opportunities for female athletes were virtually non-existent.

After winning two gold medals at the 1964 Olympics, swimmer

Donna de Varona could not find a college willing to offer her a

swimming scholarship. Scholarships for female athletes simply

did not exist. Dr. Dot Richardsen, captain of the 1996 United

States Olympic gold medal softball team, as a youngster was

told she could participate in Little League only if she cut her

hair and allowed herself to be called “Bob.” United States

Department of Education, Title IX: 25 years of Progress, June

1997.

One need look no further than the impressive

performances of our country’s women athletes

in the 1996 Olympic Summer Games to see that

Title IX has had a dramatic and positive impact

on the capabilities of our women athletes, par-

ticularly in team sports. These Olympians repre-

sent the first full generation of women to grow

up under the aegis of Title IX. The unprece-

dented success of these athletes is due, in no

small measure, to Title IX’s beneficial effects on

women’s sports, as the athletes themselves have

acknowledged time and again. What stimulated

this remarkable change in the quality of

women’s athletic competition was not a sudden,

anomalous upsurge in women’s interest in

sports, but the enforcement of Title IX’s man-

date of gender equity in sports.

Id. at 188° (citations omitted).

Old habits die hard, however. While much progress

has been made, much remains to be done. In a gender

equity follow-up study issued in May 1997, shortly after

these lawsuits were filed, the National Collegiate Athletic

Association (“NCAA”) found that while 53% of under-

graduates at Division I universities were females, only

37% of the student athletes at these universities were .

female. Diane Heckman, Scoreboard: A Concise Chronologi-

cal Twenty-Five Year History of Title IX Involving Inter-

scholastic and Intercollegiate Athletics, 7 Seton Hall J. Sports

L. 391, 416-18 (1997). The same study revealed that an

average of 77% of athletic operating expenses went to

men’s athletics at Division I universities. Id. Male athletes

5 Female athletes attending schools like UMD that failed to

bring their athletic programs into compliance with Title IX were,

of course, unable to share in this success.

received 62% of all athletic financial aid and an average of

73% of recruiting moneys were spent on male athletes. Id.

Head coaches of men’s teams received an average of 50%

more in salary than the head coaches of female teams and

assistant coaches for men’s teams received an average of

300% higher salaries than assistant coaches of female

teams. Id. That same year, the United States Department of

Education found that nationwide female athletes received

only one-third of all athletic scholarship dollars and that

only 23% of total athletic operating expenses went to

women’s athletics. United States Department of Education

Title IX: 25 Years of Progress, June 1997.

II. The Importance of Monetary Damages

In Franklin v. Gwinnett County Public Schools, 503 U.S.

60, 112 S. Ct. 1028 (1992), the Court ruled that monetary

damages were available under Title IX for gender-based

discrimination. Commentators have widely acknowl-

edged the importance of this decision and the resulting

availability of monetary damages for past discrimination

in the fight for gender equity in college and high school

athletics:

Until Franklin, plaintiffs bringing suit under

Title IX could only seek compliance with the

law, a remedy that often held little attraction for

students who would graduate before any

changes were made. Giving plaintiffs access to

individual relief made the prospect of a conten-

tious lawsuit more appealing both to plaintiffs

and to the lawyers needed to represent them.

The threat of having to pay out large damage

awards also promised to operate as a powerful

incentive for schools to bring their athletic pro-

grams, as well as their other educational pro-

grams, into compliance with Title IX. Perhaps

even more importantly, the availability of dam-

ages avoided the problem of student-plaintiffs

graduating from their respective schools and

thereby making their legal claims moot. By

including a claim for damages, plaintiffs would

still have a justiciable Title IX claim even after

graduation. Thus, Franklin represented a major

step forward in Title IX enforcement.

Deborah Brake and Elizabeth Catlin, Setting a Course For

College Athletics: The Path of Most Resistance: The Long Road

Toward Gender Equity in Intercollegiate Athletics, 3 Duke J.

Gender L. & Policy 51, 60-61 (1996). See also Laura J.

Kolpin, Has Title IX Delivered An “Air Ball” to Coaches of

Women’s Athletics, 45 Drake L. Rev. 253, 258 (1997); Sara

A. Elliott & Daniel S. Mason, Gender Equity in Intercollegi-

ate Athletics: An Alternative Model to Achieving Title IX

Compliance, 11 J. Legal Aspects of Sport 1, 7 (2001).

The instant case provides an excellent example of the

importance of monetary damages to Title IX lawsuits

involving athletic programs. As a result of the lower

court’s rulings that Petitioners had no claims for mone-

tary damages, their claims for injunctive relief became

moot upon the exhaustion of their NCAA eligibility. Peti-

tioners are left with no remedy for the real damages they

suffered in the form of lost scholarships, lost participa-

tion opportunities and the lost chance to compete on a

par with male athletes.® Such a result clearly discourages

6 As the First Circuit noted in its first Cohen decision, the

availability of athletic scholarships and the opportunity to

participate in sports are critical to many student athletes: “|For

many student-athletes, physical skills are a passport to college

admissions and scholarships, allowing them to attend otherwise

inaccessible schools. These opportunities, and the lessons

learned on the playing fields, are invaluable in attaining career

other potential plaintiffs from bringing enforcement

actions under Title IX. Just as important, unless Peti-

tioners’ claims for monetary damages are reinstated,

UMD will suffer no adverse consequences as a result of

its long history of intentionally violating Title IX - a

result that creates obvious negative policy incentives for

UMD and for other educational institutions. Unless mon-

etary damages are available for past violations of Title IX,

“the pay now or pay later” incentive for bringing an

intercollegiate athletic program into compliance with

Title IX before being forced to do so by a lawsuit simply

does not exist.

A. Gebser, Davis and the Standard for Awarding

Damages Under Title IX in Sexual Harassment

Cases

After the Court’s 1992 decision in Franklin v. Gwinnett

County Public Schools, a great deal of confusion developed

in lower courts over the standard to be applied in deter-

mining when an educational institution is guilty of inten-

tional discrimination and thus subject to monetary

damages under Title IX in the context of a claim of sexual

harassment by a teacher or by another student. The Court

has twice granted certiorari to define the contours of a

school’s liability under such circumstances.

In the first such case, Gebser v. Lago Vista Ind. Sch.

Dist., 524 U.S. 274, 118 S. Ct. 1989 (1998), the Court

rejected the use of agency or negligence principles to

render a school district liable for monetary damages for

the sexual harassment of a teacher. The Court ruled that

and life successes in and out of professional sports.” Cohen v.

Brown University, 991 F.2d 888, 891 (1st Cir. 1993).

actual notice of the harassment and failure to remedy it is

necessary for the assessment of monetary damages

against the school under Title IX:

Consequently, in cases like this one that do not

involve official policy of the recipient entity, we

hold that a damages remedy will not lie under

Title IX unless an official who at a minimum has

authority to address the alleged discrimination

and to institute corrective measures on the

recipient’s behalf has actual knowledge of dis-

crimination in the recipient’s programs and fails

adequately to respond.

524 U.S. at 290, 118 S. Ct. at 1999.

In the second case, Davis v. Monroe County Board of

Education, 526 U.S. 629, 119 S. Ct. 1661 (1999), the Court

extended liability under Title IX to instances of student-

on-student sexual harassment. Consistent with its deci-

sion in Gebser, the Court ruled that monetary damages

could be assessed against the educational institution only

when the institution acted with deliberate indifference to

“known” acts of harassment. Id. at 639-40, 119 S. Ct. at

1669-70.

B. A Split in the Circuits Exists Over the Standard

for Assessing Monetary Damages in Title IX

Cases Involving Discrimination in the Provi-

sion of Athletic Opportunities

While granting certiorari in three separate cases

involving monetary damages under Title IX for sexual

harassment, the Court has never considered a case

involving a claim for damages under Title IX for the

denial of equal athletic opportunity. As a result, the

courts of appeals are split on the proper standard to be

supplied in such cases. In the instant cases, the Eighth

Circuit ruled that the actual notice/deliberate indif-

ference standard articulated in Gebser and Davis for sex-

ual harassment cases is also applicable to cases involving

the denial of equal athletic opportunity. In sharp contrast,

the Fifth Circuit and Sixth Circuit have ruled that the

standard announced in Gebser and Davis is restricted to

sexual harassment cases and has no application to cases

involving the denial of equal athletic opportunity. While

agreeing on this point, the Fifth and Sixth Circuits dis-

agree on the proper standard in such cases.

In this case, the Eighth Circuit, with no analysis,

concluded that the actual notice/deliberate indifferent

test set out in Gebser applied to Petitioners’ claims that

UMD knowingly discriminated against women in provid-

ing athletic scholarship and participation opportunities:

In Gebser, the Supreme Court noted that the

express remedy in Title IX operates on an

assumption of prior notice of alleged discrimi-

nation to the funding recipient and an oppor-

tunity to rectify any violation voluntarily. 524

U.S. at 288, 118 S. Ct. 1989. The Court therefore

held that compensatory damages may not be

recovered in cases of teacher-student sexual

harassment unless a school official with author-

ity to address the discrimination had actual

notice of and was deliberately indifferent to the

discrimination. Id. at 290, 118 S. Ct. 1989. Here,

the Thompson Plaintiffs’ proposed amended

complaint recited at length alleged disparities in

the resources and opportunities afforded the

women’s and men’s athletic programs and then

asserted in conclusory fashion that UMD has

“intentionally violated Title IX by knowingly

and deliberately discriminating.” There was no

allegation of prior notice of their complaints to

appropriate UMD officials, no allegation of

deliberate indifference by such officials, and no

allegation they had afforded UMD a reasonable

opportunity to rectify the alleged violations. The

district court did not abuse its discretion in

denying the Thompson Plaintiffs leave to amend

to assert damage claims that would have been

futile under Gebser.

272 F.3d at 575, App. 11.

In Pederson v. Louisiana State University, 213 F.3d 858

(5th Cir. 2000), the Fifth Circuit reached exactly the oppo-

site conclusion, ruling that the Gebser standard, designed

to determine an educational institution’s knowledge of

and response to an individual teacher’s or student’s sex-

ual harassment, makes no sense when applied to allega-

tions of institutional discrimination. In Pederson, a group

of female student athletes brought Title IX claims against

Louisiana State University(“LSU”) very similar to those

brought by Petitioners in these cases, including claims for

monetary damages for LSU’s past discrimination in the

provision of equal athletic opportunity. As did UMD, LSU

argued that the plaintiffs’ complaint failed to satisfy Geb-

ser’s actual notice/deliberate indifference standard and

thus failed to state a claim for monetary damages. Id. at

881-82. The Fifth Circuit, unlike the Eighth Circuit, force-

fully rejected this argument, holding that the standard for

assessing monetary damages set out in Gebser and Davis

has no application to cases involving the denial of equal

athletic opportunity:

[T]he requirement in the sexual harassment

cases — that the academic institution have actual

knowledge of the sexual harassment - is not

applicable for purposes of determining whether

an academic institution intentionally discrimi-

nated on the basis of sex by denying females

equal athletic opportunity. In the sexual harass-

ment cases, the issue was whether the school

district should be liable for the discriminatory

acts of harassment committed by its employees.

These cases hold that school districts must

themselves have actual discriminatory intent

before they will be liable for the discriminatory

acts of their employees. In the instant case, it is

the institution itself that is discriminating. The

proper test is not whether it knew of or is

responsible for the actions of others, but is

whether Appellees intended to treat women dif-

ferently on the basis of their sex by providing

them unequal athletic opportunity, and, as we

noted above, we are convinced that they did.

Id. at 882. As in Pederson, the evidence in this case at the

very least creates a fact issue regarding whether UMD

“intended to treat women differently on the basis of their

sex by providing them unequal athletic opportunities.”

Id. Thus, under the standard announced by the Fifth

Circuit, Petitioners in this case would have been allowed

to proceed to trial with their claims for monetary dam-

ages under Title IX.

A divided panel of the Sixth Circuit followed the

Fifth Circuit and held that the standard for assessing

monetary damages in sexual harassment cases has no

application to cases involving gender discrimination in

athletic programs. In Horner v. Kentucky High School Athle-

tic Ass'n, 206 F.3d 685 (6th Cir.), cert. denied, 531 U.S. 824

(2000), a group of female athletes sued the Kentucky

High School Athletic Association and the Kentucky State

Board of Education claiming that the defendants’ failure

to sanction fast-pitch softball for girls violated the Equal

Protection Clause and Title IX. The court characterized

the plaintiffs’ claims as involving a facially neutral policy

and concluded that an award of Title IX monetary dam-

ages under such circumstances required plaintiffs to

show an intentional violation of Title IX. Id. at 692. The

court then followed the Fifth Circuit in rejecting the use

of the Gebser standard under such circumstances:

This leaves the question of what standard to

apply to determine intent when a facially neu-

tral: policy is challenged. Currently, the only

clear test in the Supreme Court is that of “delib-

erate indifference.” However, the cases from

which that test arose, Franklin, Gebser, and Davis,

all address deliberate indifference to sexual

harassment, and are not readily analogous to the

present situation. See Pederson v. Louisiana State

Univ., 201 F.3d 388, 412-13 (5th Cir. 2000). In

those cases the school district was sued for its

failure to prevent its agents from sexually

harassing a student (or engaging in some other

form of misconduct). Thus, “intent” in that con-

text means “actual notice” of the abuse by a

third party and a failure to stop it.

206 F.3d at 692-93. The court noted the standard adopted

by the Fifth Circuit, but because it found no evidence that

the defendants had intentionally violated Title IX, it

affirmed the district court’s dismissal of the plaintiffs’

claims for monetary damages without ruling on the Fifth

Circuit’s standard. Id. at 693 n. 4. In dicta, however, the

court adopted a “discriminatory animus” test borrowed

from Title VI case law. Id. at 696. In a detailed dissent,

Judge Nathaniel Jones disapproved the “discriminatory

animus” test suggested by the majority as overly strict,

and instead advocated a variation of Gebser’s deliberate

indifference test modified for athletic opportunity cases.

Id. at 698-706.

CONCLUSION

Three courts of appeals have had occasion to address

the question of the standard to be applied in determining

liability for monetary damages under Title IX for gender-

based denial of equal athletic opportunities. The three

resulting opinions have produced four proposed stan-

dards - all different. This question of Title IX jurispru-

dence, because it potentially affects every university,

college and school district in the United States that sup-

ports an athletic program, is simply too important to

tolerate this level of confusion. In Gebser, this Court

granted certiorari to end similar lower court confusion

over the standard for awarding monetary damages under

Title IX in sexual harassment cases. The Court should do

the same in this much different, but equally important

area of Title IX jurisprudence.

Respectfully submitted,

Diane M. HENSON

Texas Bar No. 09492950

Law Firm oF Diane M. HENSON

8911 N. Capital of Texas Highway

Westech 2, Suite 2120

Austin, TX 78759

(512) 345-8544, Ext. 102

(512) 345-9469 (facsimile)

LANELLE MCNAMARA

Texas Bar No. 13817300

McNamara & McNaAMarRA

501 Franklin Avenue, Suite 500

Waco, TX 76701

(254) 754-5456

(254) 753-0719 facsimile

Boyce C. CABANISS

Texas Bar No. 03579950

GRAVES, DOUGHERTY,

HeEARON & Moopy

A Professional Corporation

515 Congress Avenue, Suite 2300

P. O. Box 98

Austin, TX 78767-0098

(512) 480-5600

(512) 478-1976 (facsimile)

Attorneys for Petitioners

App. 1

APPENDIX A

Julie GRANDSON, Plaintiff-

Appellant,

Jennifer A. Thompson; Renata D. Lindahl;

Ginger M. Jeffries, individually

and on behalf of all other similarly

sitauted [sic], Plaintiffs-Appellants,

UNIVERSITY OF MINNESOTA, et

al., Defendants-Appellees.

No. 99-1817.

United States Court of Appeals,

‘Eighth Circuit.

Submitted: April 12, 2001.

Filed: Nov. 20, 2001

Diane M. Henson, Austin, TX, argued (Larry

Meuwissen and Paul Kieffer, St. Louis Park, MN, LaNelle

McNamara, Waco, TX, on the brief), for appellant.

Lorie S. Gildea, Minneapolis, MN, argued, for appel-

lee.

Before WOLLMAN, Chief Judge, McMILLIAN and

LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

These are two actions against the University of Min-

nesota, its Board of Regents, and current and former

administrators of the University’s Duluth campus

(“UMD”) under Title IX of the Education Amendments of

1972, 20 U.S.C. §§ 1681-1688 (“Title IX”). Plaintiffs seek

injunctive and damage relief for UMD’s alleged unequal

treatment of female student athletes. They appeal the

App. 2

district court’s! orders striking the class action allegations

in the second suit for failure to file a timely motion for

class certification; denying those plaintiffs leave to amend

their complaint to assert claims for money damages; and

granting summary judgment dismissing all the individual

plaintiffs’ claims.2 We conclude the district court did not

abuse its discretion in striking the class action allegations.

We agree with the district court that the individual plain-

tiffs lack standing to seek injunctive relief, and that their

damage claims do not satisfy the rigorous standards of

Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 118 S.Ct.

1989, 141 L.Ed.2d 277 (1998). Accordingly, we affirm.

I. Background.

A. Title IX. Patterned after Title VI of the Civil

Rights Act of 1964, Title IX prohibits gender discrimina-

tion in education programs receiving federal financial

assistance, including athletic programs. Section 901 pro-

vides 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). Section 902

1 The HONORABLE PAUL A. MAGNUSON, then Chief

Judge of the United States District Court for the District of

Minnesota.

2 This case was originally scheduled for oral argument in

October 1999 but was deferred pending our en banc decision in

Jim C. v. Ark. Dept. of Educ., 235 F.3d 1079 (8th Cir.2000), cert.

denied, ___ U.S. ___, 121 S.Ct. 2591, 150 L.Ed.2d 750 (2001). Jim C.

precludes the University’s Eleventh Amendment defense. See

235 F.3d at 1081 n. 2.

App. 3

authorizes federal funding agencies to promulgate regu-

lations providing for the termination of federal funding

of any noncomplying program or activity, “Provided, how-

ever, That no such action shall be taken until the depart-

ment or agency concerned has advised the appropriate

person or persons of the failure to comply with the

requirement and has determined that compliance cannot

be secured by voluntary means.” 20 U.S.C. § 1682. Pur-

suant to this authority, the Department of Education has

promulgated regulations addressing equal opportunity

issues in the provision of athletic scholarships and pro-

grams. See 34 C.F.R. §§ 106.37(c), 106.41.

Though Congress was silent on the question of pri-

vate remedies, the Supreme Court has implied a private

right of action to enforce Title IX, Cannon v. Univ. of

Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560

(1979), and has authorized the award of money damages,

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112

S.Ct. 1028, 117 L.Ed.2d 208 (1992). However, in fashioning

specific implied remedies, the Court recently cautioned,

courts must “shape a sensible remedial scheme that best

comports with the statute.” Gebser, 524 U.S. at 284, 118

S.Ct. 1989. In Gebser, the Court held that a school district

is not liable for a teacher’s sexual harassment unless it

had actual notice of, and was deliberately indifferent to,

the discrimination. The Court explained, 524 U.S. at

288-90, 118 S.Ct. 1989:

Title IX’s express means of enforcement - by

administrative agencies - operates on an

assumption of actual notice to officials of the

funding recipient... .

App. 4

* * *

It would be unsound, we think, for a stat-

ute’s express system of enforcement to require

notice to the recipient and an opportunity to

come into voluntary compliance while a judi-

cially implied system of enforcement permits

substantial liability without regard to the recip-

ient’s knowledge or its corrective actions upon

receiving notice. . . . Where a statute’s express

enforcement scheme hinges its most severe

sanction on notice and unsuccessful efforts to

obtain compliance, we cannot attribute to Con-

gress the intention to have an implied enforce-

ment scheme that allows imposition of greater

liability without comparable conditions.

B. The Administrative Complaint Against UMD.

UMD receives federal funding and therefore must comply

with Title IX. In September 1996, before these lawsuits

were filed, the Office for Civil Rights of the United States

Department of Education (“OCR”) notified UMD that a

Title IX complaint had been filed alleging that UMD and

its athletic department were violating Title IX by:

e not effectively accommodating the athletic

interests and abilities of females;

e failing to provide female athletes with pro-

portional athletic financial assistance; and

e failing to provide female athletes with equal

opportunities for travel allowances, coach-

ing, practice facilities, medical and training

services, housing and dining, publicity ser-

vices, and recruiting resources.

On April 2, 1997, UMD and OCR entered into an Agree-

ment to resolve the September 1996 complaint. The

App. 5

Agreement required UMD to increase the squad size of its

varsity teams for women, to provide women “equivalent

opportunities to receive athletic financial assistance,” and

to provide women equivalent access to the other services

and facilities enumerated in the complaint. The Agree-

ment further required UMD to submit status reports to

OCR on October 1, 1997, 1998, and 1999, and a final

report on October 1, 2000, “documenting its full imple-

mentation of this Agreement.” In November 2000, after

UMD submitted those reports, OCR determined that

UMD had fully implemented all provisions of the Agree-

ment. OCR then terminated its administrative monitor-

ing.

C. These Actions Commence. In February 1997, UMD

student Julie Grandson filed the first action, seeking

injunctive relief and compensatory damages for the schol-

arship and financial support she allegedly would have

received as a member of the women’s varsity soccer team

had UMD not discriminated against female athletes.

Three months later, Jennifer Thompson, Renata Lindahl,

and Ginger M. Jeffries (collectively referred to as

“Thompson Plaintiffs”) filed the second action. The

Thompson Plaintiffs purported to sue on behalf of a class

of similarly situated female students. They sought injunc-

tive relief requiring UMD to end gender discrimination in

its intercollegiate athletic program by increasing the total

number of participation opportunities for women and by

adding an NCAA Division I women’s team.

At the time these actions were filed, UMD fielded

seven varsity athletic teams for men and seven for

women. All the varsity teams competed at the NCAA

Division II level, except for men’s ice hockey which was a

App. 6

Division I team. In 1999, as part of its Title IX compliance

efforts under the OCR Agreement, UMD added a Divi-

sion I women’s ice hockey team. Earlier this year, that

team won the first NCAA National Championship for

women’s ice hockey. See “UMD Earns NCAA Title,”

MPLS. STAR TRIB., Mar. 26, 2001, at Cl.

D.. Procedural History. On June 30, 1997, the

Thompson Plaintiffs sought leave to amend their com-

plaint to assert claims for money damages. The district

court deferred that motion pending resolution of UMD’s

motion to dismiss, which was denied on March 16, 1998.

Shortly thereafter, the court entered a revised scheduling

order, as requested by plaintiffs, which set July 21, 1998,

as the deadline for filing dispositive motions. UMD

moved to strike the Thompson Plaintiffs’ class allegations

because the motion for class certification — a dispositive

motion under the district court’s local rules - had not

been-timely filed.

Following a hearing on July 23, Magistrate Judge

Jonathan Lebedoff recommended that the district court

grant UMD’s motion to strike the class allegations. The

district court adopted this recommendation. Judge

Lebedoff also denied the Thompson Plaintiffs’ motion to

add money damage claims as futile. The district court

affirmed this order. Finally, on February 2, 1999, the

district court granted summary judgment dismissing the

individual plaintiffs’ remaining claims. The court ruled

that the four plaintiffs lacked standing to seek injunctive

relief because they had not played a varsity sport or had

exhausted their NCAA eligibility. The court dismissed

Grandson’s damage claim under Gebser because she did

not allege that she complained to UMD officials about her

‘

App. 7

alleged unequal treatment and did not support her alle-

gation of disparate funding with “proof of intentional

discrimination or deliberate disregard for women’s athle-

tics.”

Describing these actions as suits “to end twenty years

of pervasive and intentional gender discrimination in the

intercollegiate athletic program” at UMD, plaintiffs

appeal district court rulings striking their class allega-

tions, denying their motion to add class-wide damage

claims, and dismissing the individual claims for injunc-

tive relief and damages.

II. Discussion.

Plaintiffs complain of widespread intentional dis-

crimination in the funding of women’s varsity sports, in

the allocation of athletic scholarships to men and women

athletes, and in the spending of an annual Women’s Spe-

cial Allocation appropriated by the Minnesota Legisla-

ture. Though plaintiffs do not disclose the specific relief

they seek, it is apparent they envision injunctive relief

that would have the district court function as a de facto

super-athletic department director, plus sweeping class-

wide damage relief for all UMD women students who

might have benefitted from a more generous funding of

women’s athletics.

There have been a number of reported Title IX cases

challenging women’s collegiate athletic programs, but to

our knowledge this is the first case in which (i) a class

action was brought after the relevant federal funding

agency lodged a broad overlapping complaint against the

university, (ii) plaintiffs seek class-wide injunctive relief

App. 8

over and above a university compliance program that the

relevant funding agency has found to be fully adequate,

and (iii) plaintiffs seek class-wide damages for alleged

programmatic deficiencies that were voluntarily

remedied when brought to the university’s attention by

the funding agency’s complaint. Mindful of the Supreme

Court’s admonition that we must “shape a sensible reme-

dial scheme that best comports with the statute,” we

doubt that such sweeping claims would ever be sustained

in these circumstances.? But the most sweeping claims

need not be addressed if the district court was correct in

striking the Thompson Plaintiffs’ class allegations and in

denying the individual plaintiffs standing to seek injunc-

tive relief. So we begin with those issues.

A. Striking the Class Allegations. The district court

struck the Thompson Plaintiffs’ class allegations because

they failed to file a motion for class certification prior to

the deadline for dispositive motions. We review that rul-

ing for abuse of discretion, recognizing “[t]he district

court had the power to establish reasonable times for the

filing of documents and if those deadlines were not met,

the court had the discretion to dismiss all or part of the

3 In the Clean Water Act, Congress provided for

administrative remedies and expressly authorized private

citizen suits that supplement but do not supplant agency

enforcement. See 33 U.S.C. §§ 1319(g), 1365(b). We construed

these remedial provisions to mean that an informal

administrative enforcement agreement precludes a citizen suit

for inconsistent civil penalties. Comfort Lake Ass‘n, Inc. v. Dresel

Contracting, Inc., 138 F.3d 351, 356-57 (8th Cir.1998). We read

Gebser as requiring that an implied private action for systemic

Title IX relief must likewise take a back seat to an agency

proceeding that has led to satisfactory voluntary compliance.

App. 9

suit.” Burkhalter v. Montgomery Ward & Co., 676 F.2d 291,

294 (8th Cir.1982).

A class certification motion shall be brought “[{a]s

soon as practicable after the commencement of an action

brought as a class action.” Fed.R.Civ.P. 23(c)(1). A motion

for class certification is a dispositive motion under Dis-

trict of Minnesota Local Rule 7.1(b). Here, the dispositive

motions deadline was July 21, 1998, fifteen months after

the Thompson Plaintiffs filed their initial complaint. On

July 9, 1998, they assured the court they would file a

motion to extend the dispositive motions deadline

“[w]ithin a few days and well before July 21.” They did

not do so. The Thompson Plaintiffs explain that they were

waiting for a ruling on their motion to add claims for

money damages. But the legitimacy of that excuse was an

issue for the district court. The court struck the class

action allegations after concluding that the Thompson

Plaintiffs had “no credible excuse for neither seeking

class certification before the deadline . . . nor seeking an

extension of time” to do so. That ruling was well within

its discretion. See Hall v. Bio-Med. App., Inc., 671 F.2d 300,

302-03 (8th Cir.1982) (no abuse of discretion to strike class

allegations for plaintiffs’ failure to comply with local rule

requiring class certification motion within ninety days

after case is filed).

B. The Claims for Injunctive Relief. The district court

held that each of the four individual plaintiffs lacked

standing to seek prospective injunctive relief - Grandson,

Thompson, and Jeffries because they have no remaining

NCAA eligibility, and Lindahl because she did not play

on a varsity team, seeks tc compel UMD to create a

women’s varsity ice hockey team, which it has already

App. 10

done, and has not attended UMD since 1998. Plaintiffs

challenge this ruling as to Grandson but fail to address

her lack of standing. That a plaintiff lacks eligibility or is

no longer a student is an adequate basis to dismiss an

individual Title IX claim for injunctive relief. See Cook v.

Colgate Univ., 992 F.2d 17, 20 (2d Cir.1993). Plaintiffs

argue that Lindahl’s claims are not moot because she left

UMD for financial reasons and may return, and because

UMD may drop or fail to fund its new Division I

women’s ice hockey team. These arguments are wholly

speculative, particularly given UMD’s compliance efforts

at the behest of OCR. Thus, Lindahl’s individual claim for

injunctive relief is moot. See McFarlin v. Newport Spec. Sch.

Dist., 980 F.2d 1208, 1210 (8th Cir.1992) (“Through the

passage of time and the occurrence of irrevocable events,

disputes may disappear so that federal courts no longer

can grant effective relief.”). |

C. The Claims for Damage Relief. The district court

denied the Thompson Plaintiffs leave to amend to add

Title IX damage claims, concluding they had failed to

state a cognizable claim for damages under Gebser. The

court subsequently dismissed Grandson’s claim for

money damages because she failed to allege that she

complained to UMD about unequal treatment before

suing, as Gebser requires, and because “a funding dis-

parity between men’s and women’s teams by itself is

insufficient to support [Title IX] unequal treatment

claims.” Plaintiffs appeal both rulings.

1. The Thompson Plaintiffs. We review the district

court’s denial of leave to amend a complaint for abuse of

discretion. Fuller v. Sec’y of Def., 30 F.3d 86, 88 (8th Cir.),

cert. denied, 513 U.S. 1019, 115 S.Ct. 583, 130 L.Ed.2d 497

App. 11

(1994). Leave to amend will be denied if the proposed

amended pleading would be futile. Wald v. Southwestern

Bell Corp. Customcare Med. Plan, 83 F.3d 1002, 1005 (8th

Cir.1996).

In Gebser, the Supreme Court noted that the express

remedy in Title IX operates on an assumption of prior

notice of alleged discrimination to the funding recipient

and an opportunity to rectify any violation voluntarily.

524 U.S. at 288, 118 S.Ct. 1989. The Court therefore held

that compensatory damages may not be recovered in

cases of teacher-student sexual harassment unless a

school official with authority to address the discrimina-

tion had actual notice of and was deliberately indifferent

to the discrimination. Id. at 290, 118 S.Ct. 1989. Here, the

Thompson Plaintiffs’ proposed amended complaint

recited at length alleged disparities in the resources and

opportunities afforded the women’s and men’s athletic

programs, and then asserted in conclusory fashion that

UMD has “intentionally violated Title IX by knowingly

and deliberately discriminating.” There was no allegation

of prior notice of their complaints to appropriate UMD

officials, no allegation of deliberate indifference by such

officials, and no allegation they had afforded UMD a

reasonable opportunity to rectify the alleged violations.

The district court did not abuse its discretion in denying

the Thompson Plaintiffs leave to amend to assert damage

claims that would have been futile under Gebser.

2. Grandson. Grandson seeks money damages for

scholarship and other financial support she allegedly

would have received as a member of the UMD varsity

women’s soccer team if UMD had not discriminated

against its women student athletes. The district court

App. 12

concluded that her damage claim fails under Gebser

because she failed to allege that she complained to UMD

about this alleged discrimination, and because Title IX

does not prohibit unequal expenditures on men’s and

women’s athletics.

On- appeal, Grandson first argues that Gebser ‘s actual

notice requirement is satisfied in her case by the

numerous complaints UMD has received over the years

since Title IX’s enactment about the level of funding for

women’s athletics and the lack of women’s varsity teams

in sports such as swimming, ice hockey, and cross-coun-

try skiing. We disagree. A vigorous public debate on

these issues does not demonstrate that UMD knew of

systemic non-compliance. For example, OCR’s 1979 Pol-

icy Interpretation stated that a university’s cornpliance

will be tested by whether men and women students are

provided substantially proportionate opportunities, or

whether the university can show “a history and continu-

ing practice of program expansion” for an underrepre-

sented gender, or whether it can show that members of an

underrepresented gender “have been fully and effectively

accommodated by the present program.” 44 Fed.Reg.

71,413, 71,418 (1979), applied in Cohen v. Brown Univ., 101

F.3d 155 (1st Cir.1996), cert. denied, 520 U.S. 1186, 117 S.Ct.

1469, 137 L.Ed.2d 682 (1997). These are flexible standards,

and Gebser emphasized that money damages should not

be awarded except for knowing violations. When an indi-

vidual plaintiff such as Grandson claims money damages

from a specific Title IX violation, such as failing to-award

her a soccer scholarship, Gebser requires prior notice to a

university official with authority to address the complaint

OTT

App. 13

and a response demonstrating deliberate indifference to

the alleged violation.

Grandson next argues that she did complain to the

Director of UMD’s Office of Equal Opportunity on

August 15, 1996. However, this was after she had quit the

women’s varsity soccer team. It was not evidence [sic]

that she complained of monetary injury in timely fashion

or that the responsible UMD officials were deliberately

indifferent to her claim.

Grandson further argues that UMD’s consistently

unequal expenditures for its mén’s and women’s athletic

teams is sufficient evidence of the deliberate indifference

required by Gebser. Again, we disagree. Title IX does not

require parity of expenditures. See 34 C.F.R. § 106.41(c)

(“[uJnequal aggregate expenditures for members of each

sex or unequal expenditures for male and female teams

.. will not constitute noncompliance”). Likewise, OCR’s

Policy Interpretation stated “that purely financial mea-

sures ... do not in themselves offer conclusive documen-

tation of discrimination.” 44 Fed.Reg. at 71,414.

Grandson further argues that the disproportionately

low athletic scholarships awarded to women is evidence

of deliberate indifference. The Title IX regulations require

that funding recipients “provide reasonable opportunities

for [athletic scholarship] awards for members of each sex

in proportion to the number of students of each sex

participating in . . . intercollegiate athletics,” 34 C.ER.

106.37(c). But OCR construes this regulation as permit-

ting recipients to phase in scholarships for newly created

varsity teams. See 44 Fed.Reg. at 71,415. UMD started its

App. 14

women’s varsity soccer team in 1994, the first of the two

seasons Grandson was on the team.

On this record, UMD’s response to the OCR Title IX

complaint that preceded Grandson’s lawsuit, and the

efforts UMD made in fulfilling its commitments under

the compliance Agreement with OCR, preclude a finding

that UMD has been deliberately indifferent to its overall

compliance obligations under Title IX. As Grandson did

not give UMD officials prior notice of and an opportunity

to rectify the specific violations that she alleges injured

her as a member of the women’s varsity soccer team, the

district court properly granted summary judgment dis-

missing her claim for money damages.

The judgment of the district court is affirmed.

App. 15

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

JENNIFER A. THOMPSON, Civil File No.

RENATA D. LINDAHL, and 97-1072

GINGER M. JEFFRIES, each (PAM/JGL)

individually and on behalf of all ORDER

others similarly situated,

Plaintiffs,

UNIVERSITY OF MINNESOTA;

UNIVERSITY OF MINNESOTA,

Duluth Branch; UNIVERSITY OF

MINNESOTA BOARD OF

REGENTS, a body politic and

corporate; LAWRENCE IANNI;

KATHRYN MARTIN; GREGORY

FOX; BRUCE MCLEOD; JULIE

BLEYHL; JEAN KEFFLER; JESSICA

PHILLIPS; STANLEY

SAHLSTROM; WILLIAM

PETERSON; WENDELL

ANDERSON; PATRICIA SPENCE;

WARREN LARSON; HYONKIM;

WILLIAM HOGAN; THOMAS

REAGAN; NILS HASSELMO; and

H. BRYAN NOEL,

Defendants.

App. 16

APPEARANCES

(Filed Jul. 23, 1998)

LaNelle McNamara, Esq., and Steven C. Samborski, Esq.,

on behalf of Plaintiffs.

Lori S. Gildea, Esq. and Mark Bohnhorst, Esq., on behalf

of Defendants.

JONATHAN LEBEDOFF, United States Magistrate Judge

The above-entitled matter came on for hearing before

the undersigned Magistrate Judge of District Court on

May 28, 1998, on Plaintiffs’ motion to amend the Com-

plaint to add claims for compensatory and punitive dam-

ages. The case has been referred to the undersigned for

resolution of pretrial matters pursuant to 28 U.S.C. § 636

and Local Rule 72.1.

I. Applicable Legal Standards

Plaintiffs seek leave to file their Proposed Amended

Complaint. Federal Rule of Civil Procedure 15(a) pro-

vides that this Court may allow amendments to pleadings

and that such amendments “shall be freely given when

justice so requires.” The presumption is that leave to

amend is granted. See Fuller v. Secretary of Defense, 30 F.3d

86, 88 (8th Cir. 1994). As the Eighth Circuit held, “[l]eave

to amend shall be granted absent a good reason for the

denial, such as undue delay, bad faith, undue prejudice to

the nonmoving party, or futility.” Id. (citing Thompson-El ~

v. Jones, 876 F.2d 66, 67 (8th Cir. 1989)).

App. 17

With respect to futility, the Eighth Circuit has stated

that a party’s motion to amend should be dismissed on

the merits only if it asserts clearly frivolous claims or

defenses; the likelihood of success on the new claim is no

basis for denying an amendment unless the claim

asserted clearly is frivolous. See Gamma-10 Plastics, Inc. v.

American President Lines, Ltd., 32 F.3d 1244, 1255-56 (8th

Cir. 1994) (citing Buder v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 644 F.2d 690, 695 (8th Cir. 1981).

Neither delay nor dilatory motive are sufficient in

themselves to deny a party leave to amend a pleading.

For leave to amend to be denied, the delay or dilatory

motive must result in prejudice to the party opposing the

motion. See Buder, 644 F.2d at 694; and 6 Charles A.

Wright, et al., Federal Practice & Procedure: Civil 2d § 1487,

at 613-14 (1990) (stating that if the court is persuaded that

no prejudice will accrue, the amendment should be

allowed). Even if some prejudice would result to the

adverse party if the motion to amend were granted, that

prejudice still must be balanced against the hardship to

the moving party if it is denied. See Buder, 644 F.2d at 694.

The burden of proof of prejudice is on the party opposing

amendment. See Sanders v. Clemco Indus., 823 F.2d 214, 216

(8th Cir. 1987) (citing Beeck v. Aquaslide ‘N’ Dive Corp., 562

F.2d 537, 540 (8th Cir. 1977)).

II. Discussion

In the present case, Plaintiffs seek to amend their

Complaint to add claims for compensatory and punitive

damages and to add Plaintiffs. For the reasons stated

below, it would be futile to allow Plaintiffs to amend their

App. 18

Complaint. Accordingly, Plaintiffs’ motion to amend their

Complaint will be denied. )

In their Proposed Amended Complaint, Plaintiffs

seek “a money judgment against UMD for compensatory

and punitive damages.” (Proposed Amended Complaint

{ 99(d).) In no other portion of the Proposed Amended

Compiaint do Plaintiffs specify any party against whom

damages are sought. Plaintiffs have failed to state a claim

for damages under any of their theories of law. First,

under 42 U.S.C. § 1983, Plaintiffs cannot seek damages

against the University of Minnesota-Duluth Branch

(UMD) because “neither a State nor its officials acting in

their official capacities are ‘persons’ under § 1983.” Will v.

Michigan Dep’t of Police, 491 U.S. 58, 71 (1989). Likewise,

Plaintiffs cannot seek damages under section 1983 against

the individual Defendants because absent an allegation

that Defendants are sued in their individual capacities, it

is presumed Defendants are sued in [sic] solely in their

official capacities. See Backlund v. Duluth, 176 F.R.D. 316,

319 n.1 (D. Minn. 1997) (citations omitted). As previously

stated, Defendants acting in their official capacities are

not persons for the purposes of section 1983. See Will, 491

US. at 71.

Similarly, Plaintiffs fail in their Proposed Amended

Complaint to state a claim for compensatory damages

under Title IX. To maintain a damages claim under Title

IX, Plaintiffs must show that allegedly unlawful behavior

was brought to the attention of a school official who had

the authority to institute corrective measures and that the

official was deliberately indifferent to the claimed unlaw-

ful behavior. See Gebser v. Lago Vista Indep. Pub. Sch., 118

App. 19

S. Ct. 1989, 1999 (1998). Plaintiffs have not alleged, how-

ever, in their Proposed Amended Complaint that they

complained of the allegedly discriminatory practices to

any UMD official nor that any UMD official acted with

deliberate indifference to any Plaintiff’s complaint.

Finally, Plaintiffs provide no factual or legal support

for their attempi to add a claim for punitive damages.

This Court finds no support fur such a claim.

Based upon all the files, records, and proceedings,

herein, IT IS HEREBY ORDERED that Plaintiffs’ motion

to amend the Complaint (Docket No. 33) is DENIED.

Dated: July 23, 1998

/s/ Jonathan Lebedoff

JONATHAN LEBEDOFF

United States Magistrate

Judge

App. 20

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Jennifer A. Thompson, Renata D.

Lindahl, and Ginger M. Jeffries,

each individually and on behalf

of all others similarly situated, Civil File No.

= 97-1072 (PAM /

Plaintiffs, JGL)

v. ORDER

University of Minnesota, et al.,

Defendants.

(Filed Aug. 17, 1998)

This matter is before the Court upon Plaintiffs’

appeal from United States Magistrate Judge Jonathan

Lebedoff’s Order dated 23, 1998, which denied Plaintiffs’

motion to amend the Complaint.

Pursuant to statute, the Court has conducted a de

novo review of the record. 28 U.S.C. § 636(b)(1); Local

Rule 72.1(c). The Court must modify or set aside any

portion of the Magistrate Judge’s Order found to be

clearly erroneous or contrary to law. See 28 U.S.C.

§ 636(b)(1)(A); Fed. R. Civ. P. 72(a); Local Rule 72.1(b)(2).

Based on review of the record and the submissions of the

parties, the Court concludes that the Magistrate Judge’s

Order is neither clearly erroneous nor contrary to law.

App. 21

Accordingly, IT Is HEREBY ORDERED THAT:

Magistrate Judge Lebedoff’s Order (Clerk Doc. No.

62) is AFFIRMED.

Dated: August 17, 1998

/s/ Paul A. Magnuson

Paul A. Magnuson

United States District Court

Judge

App. 22

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA -

Julie Grandson,

Plaintiff,

University of Minnesota, et al.,

Defendants,

and

Jennifer A. Thompson, Renata

D. Lindahl, and Ginger M. Jeffries,

each individually and on behalf

of all others similarly situated,

Plaintiffs,

University of Minnesota, et al.,

Defendants.

Civ. File No.

97-265 (PAM/JGL)

MEMORANDUM

AND ORDER

Civ. File No.

97-1072 (PAM/JGL)

(Filed Feb. 01, 1999)

This matter is before the Court upon Defendants’

Motion for Summary Judgment. Because of the close fac-

tual and legal similarities between these two cases, they

were briefed and argued together. For the reasons dis-

cussed below, the Court grants Defendants’ motion.

BACKGROUND

These cases arise under Title IX of the Educational

Amendments of 1972, 20 U.S.C. §§ 1681-1688 (“Title IX”).

App. 23

Plaintiffs in these cases claim that the University of Min-

- nesota-Duluth (“UMD”) violated Title IX by failing to

provide its female students with the opportunity to play

varsity women’s soccer and ice hockey and by funding its

men’s and women’s varsity teams at different levels..

UMD is a public, four-year branch of the University

of Minnesota located in Duluth. Because UMD receives

federal funding, it must comply with Title IX. Congress

passed Title IX in 1972 to eliminate gender-based discrim-

ination in education. Although the statute did not explic-

itly address athletics, Congress made clear two years later

through the Javits Amendment that Title IX was intended

to cover disparities between athletic opportunities for

men and women. See 20 U.S.C. § 1681; Crista D. Leahy,

The Title Bout: A Critical Review of the Regulation and

Enforcement of Title IX in Intercollegiate Athletics, 24 J.C. &

U.L. 489, 494 (1998). In essence, Title IX and its regula-

tions requires that institutions which receive federal

funding for any purpose must provide equal oppor-

tunities for participation in men’s and women’s sports, as

well as equal treatment for male and female athletes on

varsity athletic teams.

UMD notes that over the last ten years, varsity athle-

tic opportunities for women have grown 68%. Currently,

UMD fields seven varsity athletic teams for men and

seven for women, including women’s soccer. UMD began

its women’s soccer team in 1994. Although it was imme-

diately given varsity status, everyone understood that

1 Because of the particular circumstances of this case, it will

not be necessary to detail the specific requirements of Title IX.

App. 24

financial support would be increased gradually, such that

the women’s team would not be on par with other varsity

programs until several seasons had passed. This phase-in,

according to UMD, is on-going. As a result, scholarship

money and operational funding is not yet to the level

where UMD intends it to eventually be. See Cane Aff. at

15. Additionally, women’s ice hockey — now a club sport

— was elevated to varsity status for the 1999 season. This

move was undertaken upon petition from female stu-

dents at UMD, and shaped in large part according to the

students’ desires. The university has already hired a

high-profile coach? and has begun planning for the first

season of varsity Division I competition.

Three of the Plaintiffs in these cases were associated

with the women’s soccer team. Plaintiff Julie Grandson

played on the team in 1994 and 1995. Following the 1995

season, she quit the teem. See Grandson Dep. at 161.

Plaintiff Jennifer Thompson was a member of the team

from 1994 to 1997. She dropped out of school after the fall

quarter of her fourth year. See Thompson Dep. at 50. The

third soccer Plaintiff, Ginger Jeffries, played on the

women’s soccer team during the 1994, 1995, 1996, and

1997 seasons. See Jeffries Dep. at 14.

The fourth Plaintiff, Renata Lindahl, asserts a right to

play varsity women’s ice hockey at UMD. Lindahl

appears to be a relative late-comer to the sport, however:

her first season of organized hockey did not occur until

1995, when she played for UMD’s club team. She did not

2 Shannon Miller, the former coach of the Canadian

Olympic Women’s Ice Hockey Team.

App. 25

play hockey in high school, and no college recruited her

to play on an ice hockey team. See Lindahl Dep. at 76.

Lindahl’s tenure on the club team lasted only two years.3

Grandson, Thompson, Lindahl and Jeffries seek

injunctive relief which would require UMD to provide

comparable funding for its male and female varsity athle-

tic teams and to afford female students the right to play

varsity women’s soccer and ice hockey. Grandson also

seeks monetary damages for the previous Title IX viola-

tions she alleges.

These cases had the potential to grow far beyond

their present scope. Although the Thompson Complaint

is styled a “class action,” the Court struck Plaintiffs’ class

allegations in August. See Thompson v. University of Min-

nesota, Civ. No. 97-1072 (D. Minn. August 17, 1998), at 2.

As a result, this case need not involve a far-reaching

inquiry into every aspect of UMD’s athletic program, as

has been the case in a few notorious Title IX cases in

recent years. See, e.g., Cohen v. Brown Univ., 101 F.3d 155

(1st Cir. 1996). Instead, only the claims and issues relating

to the specific named Plaintiffs are at issue.4

3 Lindahl was also a member of UMD’s track team, but

does not raise any allegation about her treatment in that

capacity.

* Additionally, the Court has previously denied an attempt

by Plaintiffs to amend their Complaints to add two other

Plaintiffs and, in the Thompson case, to add a request for

monetary damages. The briefs filed in this matter were

submitted before the Court ruled on those motions. To err on the

side of caution, the memoranda submitted thus dealt with

issues which the Court’s denial of the motions rendered

irrelevant.

App. 26

STANDARD

Summary judgment is appropriate if there is no gen-

uine issue of material fact, and a party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1987); Unigroup,

Inc. v. O'Rourke Storage & Transfer Co., 980 F.2d 1217,

1219-20 (8th Cir. 1992). The Court determines materiality

from the law governing the claim. See Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). Disputes over facts which

might affect the outcome of the lawsuit according to

applicable substantive law are material. See id. A material

fact dispute is “genuine” if the evidence is sufficient to

allow a reasonable jury to return a verdict for the non-

moving party. See id.

DISCUSSION

A. Unequal Treatment.

Plaintiffs claim that UMD violates Title IX by provid-

ing different levels of financial support for its male and

female athletes. (See Pl’s’ Mem. at 12.) Specifically, Plain-

tiffs allege that UMD provides its varsity women’s soccer

team and club ice hockey team with a lower level of

operational funding and a smaller amount of scholarship

money than it gives the varsity men’s teams.

Federal courts which have addressed this issue have

determined that a claim that a university treats male

athletes differently than female athletes “presupposes

that the claimant is a varsity athlete who is treated

unequally based on her sex.” Pederson v. Louisiana State

University, 912 F. Supp. 892, 904 (M.D.La.1996); Boucher v.

App. 27

Syracuse University, No. 95-CV-620, 1996 WL 328444

(N.D.N.Y. June 12, 1996), at *3. Without such status, a

plaintiff will ordinarily lack standing to bring a claim for

unequal treatment under Title IX.

Plaintiff standing is an essential element of this

Court’s subject matter jurisdiction under Article III. See

Valley Forge Christian College v. Americans United for Sep-

aration of Church and State, 454 U.S. 464, 472 (1982). In

order for a plaintiff to have standing to maintain a suit,

three elements must be present. First, the plaintiff must

have suffered an “injury in fact.” An “injury in fact” is

one which is both “concrete and particularized” and

“actual or imminent.” Absent such an injury, the Court

runs the risk — especially where injunctive relief is sought

- of allowing a plaintiff with an insufficient interest in the

litigation she brings to determine the rights of truly

injured parties. Second, there must be a causal nexus

between the defendant’s conduct and the injury the plain-

tiff alleges. Finally, the plaintiff must demonstrate that it

is likely — not just hypothetically possible — that the relief

sought will remedy the injury of which the plaintiff com-

plains. See United States v. Hays, 515 U.S. 737, 742-43

(1995).

Plaintiff Lindahl is unable to maintain her unequal

treatment claims because she has never played on a var-

sity sports team at UMD. Because she has not played a

varsity sport, her claim alleging unequal treatment fails

the first prong of the test for standing. Lindahl never

suffered from any alleged disparity in funding between

men’s and women’s varsity sports. In other words, she

never suffered an “injury in fact.” See Pederson at 904.

Any injury she describes goes to the discrepancy between

App. 28

the women’s club ice hockey program and varsity men’s

teams - a complaint that is properly addressed under a

theory of ineffective accommodation.

Plaintiffs Thompson and Jeffries lack standing to

raise equal treatment claims as well, although for differ-

ent reasons. These women played no the varsity women’s

soccer team. As a result, they could have suffered an

injury, if the disparity they complain of amounts to a

violation of Title IX. However, each Plaintiff has

exhausted her NCAA eligibility. (See Def’s’ Mem. at 20.)

Because the sole relief Plaintiffs seek is injunctive, they

can no longer benefit from any such relief the Court

could enter. See Cook v. Colgate University, 992 F.2d 17, 19

(2nd Cir. 1993) (holding that once eligibility is exhausted,

plaintiff has no standing to seek injunctive relief for Title

IX violation). In addition, Thompson is no longer even a

student at UMD, which further weakens the claim for

prospective relief she brings. g

Plaintiff Grandson’s equal treatment claim would fail

for the same reason as Thompson’s and Jeffries’, were it

not for the fact that she has asked for damages to remedy

previous violations as well in her Complaint. Grandson

undeniably has standing to seek damages for prior viola-

tions of Title IX. As a result, the Court now examines the

merits of Grandson’s claim.

Last Term, in Gebser v. Lago Vista Indep. Sch. Dist., 118

S. Ct. 1989 (1998), the Supreme Court ruled that a plaintiff

who wishes to recover damages for a violation of Title IX

must demonstrate that she complained to an institution’s

supervising officials before she can recover damages for

App. 29

discrimination. See id. at 1995. This is similar to the

requirement the Supreme Court recently imposed on dis-

crimination claims under Title VII. See Burlington Indus-

tries v. Ellerth, 118 S.Ct. 2257 (1998); Faragher v. City of

Boca Raton, 118 S. Ct. 2275 (1998). Although Gebser arose

in the context of a suit against a school district for allow-

ing a teacher to harass a student, the Supreme Court did

not limit its language to that specific situation. This Court

has previously ruled that Gebser would require such noti-

fication in Title IX cases like this one as well. See Grandson

v. University of Minnesota, Civ. No. 97-275 (D. Minn. July

23, 1998), at 3. Grandson has failed to allege that she

complained to UMD officials about what she saw as

unequal treatment between men’s and women’s varsity

athletic teams. As a result, she cannot prevail on her

claim for damages.

Even if Gebser were limited to sexual harassment

cases, though, Grandson’s claim would still fail. She

apparently relies solely on the fact that the women’s

soccer team receives less university funding than some

men’s varsity teams to support her charge. However,

nothing in either Title IX or the regulations associated

with the statute mandates that a university spend equal

amounts of money on male and female athletic teams. 34

C.F.R. § 106.41(c) makes this quite explicit, stating

“[uJnequal aggregate expenditures for members of each

sex or unequal expenditures for male and female teams

- will not constitute non-compliance with this

section.”° As a result, a funding disparity between men’s

> Although that section concludes by noting that the Ass’t

Secretary of Education may consider such a disparity, along

App. 30

and women’s teams by itself is insufficient to support an

unequal treatment claim. Grandson has not coupled this

allegation about disparate funding with any other evi-

dence which would support an unequal treatment claim,

such as proof of intentional discrimination or deliberate

disregard for women’s athletics. As a result, her unequal

treatment claim would fail on this ground as well.

B. Effective Accommodation.

All Plaintiffs claim that UMD has failed to “effec-

tively accommodate” the athletic interests of its female

students by refusing to field varsity athletic programs in

sports for which women have demonstrated an interest,

specifically women’s soccer and ice hockey. This require-

ment stems from 34 C.F.R. § 106.41(c), which declares “[a

school which receives federal funding] which operates or

sponsors interscholastic, intercollegiate, club or intra-

mural athletics shall provide equal athletic opportunity

for members of both sexes.” Furthermore, the Depart-

ment of Education has issued Regulations and Policy

Interpretations which govern the standards by which a

school’s efforts to accommodate athletes of both genders

will be judged. See, e.g., 44 Fed. Reg. 71,418 (“Clarification

of Intercollegiate Athletics Policy Guidance: The Three

Part Test”).©

with other evidence, as indicative of a failure to provide equal

athletic opportunity to both genders. :

6 The three-prong test establishes that an institution will be

deemed Title-IX compliant if (1) opportunities for athletic

participation are substantially proportionate to enrollment, (2)

the institution has a history and continuing practice of

App. 31

The Court notes that the effective accommodation

claims at bar are unusual, because UMD already fields

women’s varsity soccer team, and has undertaken tho-

rough student-initiated planning to upgrade the women’s

ice hockey team to varsity status next season. This distin-

guishes these cases from the reported cases in which

other federal courts have addressed this issue. In the

typical case, a plaintiff complains either that a university

has failed to create . varsity sports team despite student

interest and oppo; unities for athletes of the other gen-

der, or has removed varsity status from an athletic pro-

gram. See, e.g., Cohen, 101 F.3d at 160 (demotion of

women’s gymnastics and volleyball teams to club status),

Boucher, 1996 WL at *1 (absence of women’s field hockey

team). Plaintiffs did not cite to any case in which collegi-

ate athletes cited a sport which already had varsity status

as the basis for an effective accommodation claim. The

Court has not found one, either.

This complete lack of case law is telling. Not only

would it often simply make no sense for a plaintiff to

bring an effective accommodation claim when she

already participated on a varsity athletic team, but in

most cases the plaintiff would lack standing to do so.

Effective accommodation claims speak not to a disparity

in resources between men’s and women’s teams, but

rather to the very existence of the teams themselves. Any

expanding opportunities for the under-represented gender, and

(3) the athletic interests and abilities of the students are

effectively accommodated. See Trudy Saunders Bredthauer,

Twenty-Five Years Under Title IX: Have We Made Progress?, 31

Creighton L. Rev. 1107, 1111 (1998).

App. 32

injunctive relief a court could enter would primarily con-

sist of an order compelling the defendant to create a

varsity sports program to remedy an imbalance in oppor-

tunities between the genders. See Cohen, 101 F.3d at 187.

When a plaintiff is already a member of a varsity sports

team, she cannot benefit from such relief, because she has

suffered no injury. As a result, the first and third prongs

of the standing test — that the plaintiff suffered an alleged

injury which could be addressed by the relief sought — are

not met. See Hays, 515 U.S. at 743. This is the case here for

Grandson, Thompson, and Jeffries. Perhaps realizing this,

Plaintiffs appear to have conceded that the interests of

female soccer players have been effectively accommo-

dated; they do not mention this issue in their Memoran-

dum opposing summary judgment. In addition,

Thompson and Jeffries, who have exhausted their athletic

eligibility, lack standing to seek injunctive relief for an

alleged failure by UMD to accommodate their interests

simply because they can never enjoy any injunctive relief

the Court might grant.

Lindahl’s position is similar. She asks the Court to

order UMD to create a varsity women’s hockey team.

However, as discussed above, UMD has already begun

building such a program. Varsity status for the women’s

ice hockey team is imminent. Nothing this Court could do

to address Lindahl’s effective accommodation claim

would alter what will already transpire next year.” Lin-

dahl’s case probably satisfies the “actual injury” prong of

7 The program Lindahl envisions and the ~rogram UMD

will actually create could differ, of course. But t. he extent that

Lindahl has a complaint about how the UMD ice hockey team

will be funded, this claim is addressable only under an unequal

App. 33

the standing test, but fails on the third prong because the

relief she seeks is no different than what will happen

without the Court’s intervention. As a result, Lindahl

lacks standing to bring an effective accommodation claim

as well.

CONCLUSION

This is an unusual Title IX case, if only because

Plaintiffs claim that UMD fails to accommodate their

athletic interests in two sports for which varsity athletic

programs are already established or will imminently be

created. Because UMD already fields a [sic] varsity

women’s teams in soccer and ice hockey, Plaintiffs cannot

benefit from the relief they seek and thus have no stand-

ing to bring effective accommodation claims. Plaintiffs

also lack standing to request injunctive relief to remedy

alleged unequal treatment of male and female ‘varsity

athletes. Finally, Grandson’s request for damages must

fail under the rule established in Gebser.

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants’ Motion for Summary Judgment in

Civ. File No. 97-265 (Clerk Doc. No. 43) is GRANTED;

2. Defendants’ Motion for Summary Judgment in

Civ. File No. 97-1072 (Clerk Doc. No. 67) is GRANTED;

3. Plaintiff's Complaint in Civ. File No. 97-265

(Clerk Doc. No. 1) is DISMISSED WITH PREJUDICE; and

treatment theory. However, as noted above, Lindahl could not

raise such a claim until she is actually a “varsity athlete.”

RRR a a NS AE Ss Em LR as os ce

App. 34

4. Plaintiff's Complaint in Civ. File No. 97-1072

(Clerk Doc. No. 1) is DISMISSED WITH PREJUDICE.

Dated: January 15, 1999

/s/ Paul A. Magnuson

Paul A. Magnuson

United States District Court

Judge

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