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Portz v. St. Cloud State University

United States District Court, D. Minnesota

February 26, 2018

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,
v.
ST. CLOUD STATE UNIVERSITY and MINNESOTA STATE COLLEGES AND UNIVERSITIES, Defendants.

          Sharon L. Van Dyck, Donald C. Mark, Jr., and Andrew T. James, FAFINSKI MARK & JOHNSON, P.A., for plaintiffs.

          Kevin A. Finnerty, Assistant Attorney General, MINNESOTA ATTORNEY GENERAL'S OFFICE, for defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM CHIEF JUDGE

         This is 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 Court.

         First, 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.

         Second, Plaintiffs have moved for class certification. The Court will grant Plaintiffs' motion but will redefine the class as follows:

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.

         Additionally, the Court will appoint Fafinski Mark & Johnson, P.A., as class counsel.

         Third, 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 brief.

         Fourth 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.

         BACKGROUND

         I. FACTUAL BACKGROUND

         Defendant 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.)

         SCSU 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. ¶ 78.)

         SCSU's 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. ¶ 6.)

         In 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.)

         Plaintiffs 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 opportunities. (Id.)

         II. PLAINTIFFS' CLAIMS

         Title IX provides:

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).

         Plaintiffs 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.)

         With 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.)

         With 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 assistance. (Id.)

         Finally, 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)).)

         Plaintiffs 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.)

         III. PROCEDURAL HISTORY

         Plaintiffs 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.)

         In July 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).

         DISCUSSION

         I. MOTION FOR SUMMARY JUDGMENT

         SCSU 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.

         A. Standard of Review

         Summary 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).

         B. Section 1983 Equal Protection Claim

         The 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.

         The 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).

         First, 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 675-76).

         Minn. 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.

         Second, 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.

         Finally, 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)).[1] 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 claim.”).

         It is “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. Id.

         Plaintiffs 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”).

         Because 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.

         C. Damages Claims

         The 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.

         “Title 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)).

         The 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.)

         The 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.

         Subsequent 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.[2] 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.

         The 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.

         Under 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.

         The court suggested that an appropriate complaint to a university official must explicitly complain of monetary injury. See id.

         There 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 monetary damages.

         Plaintiffs 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.

         Moreover, 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 knowledge ...


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