United States District Court, D. Minnesota
ALEXIE PORTZ, JILL KEDROWSKI, ABIGAIL KANTOR, MARILIA ROQUE DIVERSI, FERNANDA QUINTINO DOS SANTOS, MARIA HAUER, HALEY BOCK, KAITLYN BABICH, ANNA LINDELL, and KIERSTEN ROHDE, Plaintiffs,
ST. CLOUD STATE UNIVERSITY and MINNESOTA STATE COLLEGES AND UNIVERSITIES, Defendants.
L. Van Dyck, Donald C. Mark, Jr., and Andrew T. James,
FAFINSKI MARK & JOHNSON, P.A., for plaintiffs.
A. Finnerty, Assistant Attorney General, MINNESOTA ATTORNEY
GENERAL'S OFFICE, for defendants.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE
a putative class action brought by female student-athletes
enrolled at St. Cloud State University (“SCSU”).
The named plaintiffs, members of SCSU's varsity
women's tennis and Nordic skiing teams, sued SCSU and its
governing body, Minnesota State Colleges and Universities
(“MSCU”) (collectively, “SCSU”),
following the school's announcement that it planned to
eliminate several sports, including women's tennis and
women's Nordic skiing. Plaintiffs assert claims against
SCSU for violating Title IX of the Education Amendments of
1972, 20 U.S.C. § 1621, et. seq., and the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution. Four motions are presently before the
SCSU has moved for partial summary judgment, seeking to
dismiss Plaintiffs' Section 1983 claim and damages claim.
The Court will grant SCSU's motion and dismiss
Plaintiffs' Section 1983 claim and damages claim.
Plaintiffs have moved for class certification. The Court will
grant Plaintiffs' motion but will redefine the class as
All present, prospective, and future female students at St.
Cloud State University who are harmed by and want to end St.
Cloud State University's sex discrimination in: (1) the
allocation of athletic participation opportunities; (2) the
allocation of athletic financial assistance; and (3) the
allocation of benefits provided to varsity athletes.
the Court will appoint Fafinski Mark & Johnson, P.A., as
in relation to Plaintiffs' motion for class
certification, SCSU moves to strike Plaintiffs' reply
brief because it was filed after the scheduled deadline. The
Court will deny this motion because neither the Federal Rules
of Civil Procedure nor the local rules for the District of
Minnesota permit a party to move to strike a belatedly filed
and finally, SCSU has moved to exclude expert testimony from
Dr. Donna Lopiano. The Court will grant SCSU's motion in
part and deny it in part.
St. Cloud State University (“SCSU”) is a public
university owned and operated by the State of Minnesota. (2d
Am. Compl. (“Compl.”) ¶ 18, Aug. 15, 2017,
Docket No. 184.) SCSU is a member of the Minnesota State
system, which is governed by a board of trustees known as the
Minnesota State Colleges and Universities Board of Trustees.
(Id. ¶ 20.) SCSU receives federal financial
assistance and is subject to Title IX. (Id. ¶
19.) Plaintiffs are current or former student-athletes on the
women's tennis and women's Nordic skiing teams.
(Id. ¶¶ 8-17.)
offers a number of varsity intercollegiate sports, which are
divided into a four-tier system. (Id. ¶¶
59, 67.) Tier I consists of SCSU's Division I men's
and women's ice hockey programs. (Id. ¶
67.) Tier II consists of SCSU's Division II men's and
women's basketball, football, and volleyball programs.
(Id.) Tier III consists of SCSU's Division II
baseball, softball, women's indoor and outdoor track
& field, women's cross country, women's soccer,
men's and women's swimming and diving, and men's
wrestling programs. (Id.) Tier IV consists of
SCSU's men's and women's golf, women's
tennis, and women's Nordic skiing programs.
(Id.) On March 2, 2016, SCSU announced its intent to
reorganize its athletic offerings by eliminating six
intercollegiate sports programs, including the women's
tennis and women's Nordic skiing teams. (Id.
enrollment peaked in 2011 at 22, 024 total students;
excluding high school students, enrollment was 19, 186. (Aff.
of Lisa Foss (“Foss Aff.”) ¶ 4, May 11,
2016, Docket No. 26.) By 2016, total enrollment was down to
18, 859; 14, 990 excluding high school students.
(Id. ¶ 5.) Revenues from tuition fell by
approximately $8.6 million from 2011 to 2016. (Id.
December 2015, “the President's Office” asked
SCSU's athletics director, Heather Weems, “to come
forward with a cost containment strategy in athletics.”
(First Aff. of Heather Weems (“Weems Aff.”)
¶¶ 2, 10, May 11, 2016, Docket No. 25.) Weems
proposed that SCSU eliminate men's tennis, cross country,
and indoor and outdoor track, as well as women's tennis
and Nordic skiing. (Id. ¶ 13.) Weems's
proposal also called for a number of men's teams to
reduce their number of participants, and for certain
women's teams to increase their levels of participation.
(Id. ¶ 16.)
maintain that SCSU has never complied with Title IX, and
eliminating the women's tennis and Nordic skiing teams
would only worsen the disparity between male and female
athletic opportunities. (Compl. ¶¶ 72-75, 79.)
According to Plaintiffs, “SCSU's discrimination
against females is so substantial, as a matter of law it
cannot eliminate any female athletic participation
opportunities unless and until it first eliminates a
substantial number of male athletic participation
opportunities.” (Id. ¶ 76.) But, if SCSU
eliminated male participation opportunities such that they
equaled the number of female participation opportunities,
then SCSU would lose its NCAA Division I membership.
(Id.) Plaintiffs allege that the only realistic
solution is for SCSU to increase women's participation
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 education program or
activity receiving Federal financial assistance . . . .
20 U.S.C. § 1681(a). Title IX extends to athletic
programs offered by institutions of higher education.
See 34 C.F.R. § 106.41(a).
have filed this case as a class action on behalf of
SCSU's current, prospective, and future female students,
alleging that SCSU has violated Title IX by (1) providing
male students with a greater opportunity to participate in
varsity intercollegiate athletics than female students; (2)
providing male students with disproportionately greater
athletic-related financial assistance than female students;
and (3) providing male athletes with disproportionately
better benefits and treatment than female athletes.
(Id. ¶¶ 1-2.)
regard to Plaintiffs' first allegation, Title IX requires
institutions of higher education to offer equal athletic
participation opportunities for male and female students. 34
C.F.R. § 106.41(c). The Department of Education's
guidance provides institutions of higher education with three
ways of ensuring equal athletic participation opportunities.
Title IX and Intercollegiate Athletics, 44 Fed. Reg.
71, 413, 71, 418 (Dec. 11, 1979). But Plaintiffs allege that
“SCSU has always provided its male students with
proportionally more opportunities to participate in varsity
intercollegiate athletics than it has offered its female
students.” (Compl. ¶ 75.) Moreover, Plaintiffs
assert that if SCSU eliminates the women's tennis and
women's Nordic skiing teams, the disparity between male
and female participation opportunities will grow further.
(Id. ¶¶ 105-07.)
regard to Plaintiffs' second allegation, Title IX
requires institutions of higher education to offer equal
athletic-related financial assistance to male and female
students. 34 C.F.R. § 160.37. SCSU offers more athletic
participation opportunities for male students than female
students at Tiers I and II, and Plaintiffs allege that SCSU
offers more scholarships to students who participate in Tier
I and II sports than those participate in Tier III and IV
sports. (Compl. ¶ 70.) As a result fewer female
student-athletes receive athletic-related financial
with regard to Plaintiffs' third allegation, Title IX
requires institutions of higher education to provide female
and male student-athletes the same treatment and benefits. 34
C.F.R. § 106.41(c)(2)-(10). Plaintiffs allege that SCSU
fails to provide female student-athletes with an equal
allocation of benefits. (Id. ¶ 128.) Plaintiffs
allege that the female student-athletes are provided with
subpar facilities compared to those provided to male
student-athletes. (Id. ¶¶ 130-32.)
Plaintiffs also allege that SCSU fails to provide equal
provision of equipment, equal scheduling of games and
practice time, equal medical and training services, and equal
administrative and coaching support, among other benefits.
(Id. ¶ 35.) These requirements are often
referred to as the “laundry list” requirements.
(Id. ¶ 54 (citing 34 C.F.R. § 106.41(c)).)
also allege that SCSU has engaged in sex-based discrimination
in violation of the Equal Protection Clause of the United
States Constitution. (Id. ¶¶ 2-4, 144.)
filed their first complaint on April 28, 2016. (First Compl.,
Apr. 28, 2016, Docket No. 1). Plaintiffs filed a second
amended complaint on August 15, 2017. (Compl.) Plaintiffs
request a permanent injunction, compensatory damages, and
attorneys' fees and costs. (Compl. at 47-48.)
2016, the Court granted Plaintiffs' motion for a
preliminary injunction enjoining SCSU from eliminating
SCSU's women's tennis team. Portz v. St. Cloud
State Univ., 196 F.Supp.3d 963 (D. Minn. 2016).
MOTION FOR SUMMARY JUDGMENT
moves for partial summary judgment with respect to
Plaintiffs' equal-protection claim and damages claim. The
Court will grant SCSU's motion in its entirety.
Standard of Review
judgment is appropriate where there are no genuine issues of
material fact and the moving party can demonstrate that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
A fact is material if it might affect the outcome of the
suit, and a dispute is genuine if the evidence is such that
it could lead a reasonable jury to return a verdict for
either party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A court considering a motion for
summary judgment must view the facts in the light most
favorable to the non-moving party and give that party the
benefit of all reasonable inferences to be drawn from those
facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The nonmoving party may
not rest on mere allegations or denials, but must show
through the presentation of admissible evidence that specific
facts exist creating a genuine issue for trial.
Anderson, 477 U.S. at 256. But “[w]here the
moving party fails to satisfy its burden to show initially
the absence of a genuine issue concerning any material fact,
summary judgment must be denied even if no opposing
evidentiary matter is presented.” Foster v.
Johns-Manville Sales Corp., 787 F.2d 390, 393
(8th Cir. 1996).
Section 1983 Equal Protection Claim
Court must decide whether SCSU is entitled to sovereign
immunity under the Eleventh Amendment. Plaintiffs invoke
three exceptions in an effort to overcome this hurdle. The
Court will conclude that Plaintiffs' Section 1983 claim
is barred by sovereign immunity.
Eleventh Amendment bars suit against state governments
brought in federal court unless the state has clearly and
unequivocally waived its immunity, Faibisch v. Univ. of
Minn., 304 F.3d 797, 800 (8th Cir. 2002), or
Congress has abrogated the states' Eleventh Amendment
immunity with respect to that particular cause of action,
Seminole Tribe of Fla. v. Florida, 517 U.S. 44,
54-56 (1996). The Eleventh Amendment bars suit against states
and state agencies “for any kind of relief, not merely
monetary damages.” Monroe v. Ark. State Univ.,
495 F.3d 591, 594 (8th Cir. 2007). Eleventh
Amendment immunity extends to SCSU because it is an
instrumentality of the state. Humenansky v. Regents of
Univ. of Minn., 152 F.3d 822, 824 (8th Cir.
1998) (internal quotation marks omitted); Lewis v. St.
Cloud State Univ., No. 04-4379, 2005 WL 3134064, at
*10-11 (D. Minn. Nov. 23, 2005).
Plaintiffs argue that Minnesota has waived its Eleventh
Amendment immunity by enacting Minn. Stat. § 121A.04,
which requires each education institution to “provide
equal opportunity for members of both sexes to participate in
its athletic program.” Minn. Stat. § 121A.04,
subd. 2. The test for determining whether a state has
voluntarily waived its sovereign immunity is a
“stringent one.” St. Charles Cty. v.
Wisconsin, 447 F.3d 1055, 1059 (8th Cir.
2006) (quoting Coll. Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
(1999)). “A state only waives its sovereign immunity if
the State voluntarily invokes federal jurisdiction, or else
if the State makes a clear declaration that it intends to
submit itself to federal jurisdiction.” Id. at
1059-60 (quoting Coll. Sav. Bank, 527 U.S. at
Stat. §121A.04 does not contain a clear and unequivocal
waiver of sovereign immunity. First, Minn. Stat. §
121A.04 makes no reference to “federal
jurisdiction.” See St. Charles Cty., 447 F.3d
at 1059-60. Second, Minn. Stat. § 121A.04 is contained
in the chapters of the Minnesota Statutes that comprise
“Education Code: Prekindergarten - Grade 12, ”
Minn. Stat. chs. 120-129C, and not the chapters applicable to
“Postsecondary Education, ” Minn. Stat. chs.
135A-137. It is unclear whether this statute even applies to
SCSU. Finally, Plaintiffs' cited cases are inapposite.
Neither Striebel v. Minn. State High Sch. League,
321 N.W.2d 400, 402 (Minn. 1982), nor Mason v. Minn.
State High Sch. League, No. 03-6462, 2004 U.S. Dist.
LEXIS 13865, at *9-12 (D. Minn. July 15, 2004), describe
Minn. Stat. § 121A.04 as waiving sovereign immunity.
Moreover, as Plaintiffs admit, the Minnesota State High
School League is a private actor. (Opp. to Mot. Summ. J. at
16, June 2, 2017, Docket No. 144.) The Court concludes that
the state has not waived its sovereign immunity by enacting
Minn. Stat. § 121A.04.
Plaintiffs argue that SCSU has waived sovereign immunity by
accepting federal funds. Plaintiffs provide no authority for
the proposition that the state waives its sovereign immunity
for purposes of Section 1983 claims by accepting federal
funds. It is true that states waive sovereign immunity
for purposes of Title IX when they accept
federal funds. 42 U.S.C. § 2000d-7. However, this waiver
does not constitute a waiver of sovereign immunity for
purposes of Section 1983 claims.
Plaintiffs argue that Congress intended to abrogate sovereign
immunity for equal-protection claims in enacting Title IX. To
determine whether Congress has abrogated immunity, the Court
employs a “two-prong analysis.” Alsbrook v.
City of Maumelle, 184 F.3d 999, 1005 (8th Cir. 1999)
(citing Seminole Tribe, 517 U.S. at 55). First, the
Court must “determine whether Congress has
unequivocally expressed its intent to abrogate the
immunity.” Id. Second, the Court must
ascertain whether, when Congress effectuated that abrogation,
it acted pursuant to a valid exercise of its power under the
enforcement provision found in Section 5 of the Fourteenth
Amendment. Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 364 (2001) (“The Eleventh Amendment, and
the principle of state sovereignty which it embodies, are
necessarily limited by the enforcement provisions of § 5
of the Fourteenth Amendment. As a result, . . . Congress may
subject nonconsenting States to suit in federal court when it
does so pursuant to a valid exercise of its § 5
power.” (cleaned up)). Where Congress has failed to act
pursuant to a proper exercise of its power under Section 5 of
the Fourteenth Amendment, “there is no valid
abrogation” of states' Eleventh Amendment immunity
from private suit in federal court, and accordingly the
district court will lack subject matter jurisdiction over
claims relying on such abrogation. See
Alsbrook¸184 F.3d at 1010 (holding “that the
extension of Title II of the ADA to the state was not a
proper exercise of Congress's power under Section 5 of
the Fourteenth Amendment, ” thus there was “no
valid abrogation of Arkansas' Eleventh Amendment immunity
from private suit in federal court and the district court
lacked subject matter jurisdiction over the ADA
“well settled” that-absent waiver of immunity-the
Eleventh Amendment bars Section 1983 claims against states or
state agencies. Murphy v. Arkansas, 127 F.3d 750,
754 (8th Cir. 1997). Plaintiffs must thus establish that
Title IX abrogated sovereign immunity with respect to
equal-protection claims brought under Section 1983. In
Egerdahl v. Hibbing Community College, the Eighth
Circuit concluded that Congress did not abrogate state's
sovereign immunity for equal-protection claims that are
brought in suits that also allege violations of Title IX. 72
F.3d 615, 619 (8th Cir. 1995). The Eighth Circuit
acknowledged that 42 U.S.C. § 200d-7(a)(1) abrogates
states' Eleventh Amendment immunity from Title IX claims,
but noted that the statute “does not even mention the
Equal Protection Clause.” Id. The Eighth
Circuit therefore concluded that Congress has not overridden
states' immunity from equal-protection claims.
cite Crawford v. Davis, 109 F.3d 1281
(8th Cir. 1997), for the proposition that the
Eleventh Amendment does not deprive courts of the authority
to hear Section 1983 claims brought to redress violations of
Title IX. Crawford did not address whether the
Eleventh Amendment barred the plaintiff's Section 1983
claim but, rather, whether it barred the plaintiff's
Title IX claim. Id. at 1283. In fact, the Eighth
Circuit stated that “Ms. Crawford's other two
claims may proceed against the institutional defendants under
both § 1983 and Title IX . . . unless they can
demonstrate that they are entitled to qualified immunity with
respect to those claims.” Id. at 1284
(emphasis added). After Crawford, the cases in this
district are consistent with the Eighth Circuit's holding
in Egerdahl. See, e.g., Cobb v. U.S. Dep't
of Educ. Office for Civil Rights, 487 F.Supp.2d 1049,
1055 (D. Minn. 2007) (dismissing Plaintiffs' § 1983
claim because “there [were] no individual defendants
named and no agency ha[d] waived sovereign immunity”).
the Court concludes that Plaintiffs' Section 1983 claim
is barred by sovereign immunity under the Eleventh Amendment,
the Court will grant SCSU's motion for summary judgment.
Court must decide whether there is a genuine issue of
material fact with respect to Plaintiffs' claim for
damages. The Court will conclude that no genuine issue of
material fact exists and, therefore, will dismiss
Plaintiffs' claim for damages.
IX damage actions which do not involve an institution's
official policy require a showing that ‘an official who
at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the
recipient's behalf [had] actual knowledge of
discrimination in the recipient's programs and fail[ed]
to adequately respond.'” Roe v. St. Louis
Univ., 746 F.3d 874, 882 (8th Cir. 2014)
(quoting Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 290 (1998)). In order to assert a claim for damages
under this standard, a plaintiff must show that the
university was “(1) deliberately indifferent (2) to
known acts of discrimination (3) which occurred under its
control.” Id. (quoting Ostrander v.
Duggan, 341 F.3d 745, 750 (8th Cir. 2003)).
Court must first decide whether Plaintiffs' claims stem
from SCSU's official policy. If Plaintiff's claims do
not involve an official policy, the Court must undertake the
Gebser analysis. Plaintiffs argue that
“SCSU's athletic offering policy and practice,
including its official menu of intercollegiate sports teams
available for student participation, ” constitutes an
official policy. (Opp. to Mot. Summ. J. at 25.)
Eighth Circuit's holding in Grandson v. University of
Minnesota counsels against a finding that the athletic
programming constitutes an official policy. 272 F.3d 568,
575-576 (8th Cir. 2001). The plaintiff - a member
of the university's women's varsity soccer team -
brought an action against the university, seeking injunctive
relief and compensatory damages for the scholarship and
financial support she allegedly would have received as a
member of the women's varsity soccer team had the
university not discriminated against female student-athletes.
Id. at 572. The Eighth Circuit implicitly assumed
that the athletic and scholarship offerings did not
constitute an official policy by applying the Gebser
test. Id. at 575.
applications of Grandson support a conclusion that,
in the Eighth Circuit, athletic and scholarship offerings are
not an official policy exempted from the Gebser
analysis. In Ezell v. Fayetteville Public
Schools, the U.S. District Court for the Western
District of Arkansas offered the most developed analysis of
Grandson. No. 5:15-CV-05161, 2015 WL 8784431, at *6
(W.D. Ark. Dec. 15, 2015). The Ezell Court noted
that Grandson adopted a broad view of
Gebser: “It held that the Gebser test
applies even when a recipient's own decisions, not a
third party's, are at issue.” Id. at *4.
Accordingly, the Ezell Court applied Gebser
to the facts of that case, which involved Title IX claims
brought on behalf of high school female student-athletes.
Id. at *1-2, 6.
Court need not decide whether Grandson applies to
all Title IX claims. It is sufficient that
the Eighth Circuit applied Gebser in
Grandson, which presented facts analogous to this
case - Title IX allegations stemming from unequal athletic
programming. The Court will therefore conclude that
it must undertake the Gebser analysis in this case.
Gebser, Plaintiffs must demonstrate that SCSU had
“actual knowledge” of the alleged discrimination.
Gebser, 524 U.S. at 290. Substantively, the facts of
this case are similar to those in Grandson. In
Grandson, the plaintiff argued that the university
had actual notice of the discrimination because the
university received complaints about the level of funding for
women's athletics and the lack of women's varsity
teams. 272 F.3d at 575. The Eighth Circuit held that these
complaints were insufficient to constitute actual notice of
the alleged discrimination because “[a] vigorous public
debate on these issues does not demonstrate that UMD knew of
systemic non-compliance.” Id. Rather,
“[w]hen an individual 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 and a
response demonstrating deliberate indifference to the
alleged violation.” Id. at 576.
court suggested that an appropriate complaint to a university
official must explicitly complain of monetary injury. See
is no evidence that SCSU had actual knowledge of
Plaintiffs' claimed monetary injuries or that
Plaintiffs' provided notice to a university official with
authority to address the complaint. Plaintiffs argue that
Athletic Director Heather Weems testified in her deposition
that she was aware SCSU was not in compliance with Title IX.
(Opp. to Mot. Summ. J. at 25.) Plaintiffs misrepresent
Weems's testimony. The following exchange reveals that
Weems believes SCSU was and remains Title IX compliant:
Q. When you assumed your current position in June of 2012
were you ever told by anybody that St. Cloud State did not
comply with Title IX requirements?
. . . .
[A.] I was told we had risk.
. . . .
Q. What does that mean?
A. That we were counting ourselves compliant
per Prong 3, and Prong 3 - so long
as you can demonstrate you are meeting interest and
abilities, maintains your compliance, but there are
opportunities - if someone in the under-represented gender
were to come forward with a request, then they have interest
at this point. . . . . A. I believe that we are in
compliance per Prong 3.
(Sealed Ex. A at 95:4-23, 98:20, June 2, 2017, Docket No.
147.) In fact, Weems asserted that, since 2012, SCSU has had
an even stronger case for Title IX compliance because SCSU
has added a number of women's sports programs.
(Id. at 98:21-99:15.) Weems's testimony does not
establish that SCSU knew of Plaintiffs' complaints of
argue that SCSU knew it was not Title IX complaint because it
conducted an athletic-interest survey and did not entertain
adding any new women's sports. (Opp. to Mot. Summ. J. at
25.) Under the strict-notice standard adopted by the Eighth
Circuit in Grandson, the survey alone cannot
constitute actual notice that SCSU was violating Title IX.
See 272 F.3d at 575-76.
Plaintiffs' arguments focus on assertions that SCSU had
general knowledge that it was not Title IX compliant. But
there is no evidence that Plaintiffs themselves notified SCSU
of their claim to monetary damages prior to initiating this
action. As Grandson held, when plaintiffs allege
monetary damages for failure to receive financial aid,
“Gebser requires prior notice to a university
official with authority to address the complaint and a
response demonstrating indifference to the alleged
violation.” Id. Even if SCSU had general