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Portz v. St. Cloud State University

United States District Court, D. Minnesota

August 1, 2019

ALEXIE PORTZ, JILL KEDROWSKI, ABIGAIL KANTOR, MARILIA ROQUE DIVERSI, FERNANDA QUINTINO DOS SANTOS, MARIA HAUER, HALEY BOCK, KAITLYN BABICH, ANNA LINDELL, and KIERSTEN ROHDE, individually and on behalf of all those similarly situated, Plaintiffs,
v.
ST. CLOUD STATE UNIVERSITY and MINNESOTA STATE COLLEGES AND UNIVERSITIES, Defendants. Year % Female Students % Male Students Proportionality Proportionality without Tennis and Nordic Skiing

          Sharon L. Van Dyck, VAN DYCK LAW FIRM, PLLC, and Donald C. Mark, Jr., and Tyler P. Brimmer, FAFINSKI MARK & JOHNSON, P.A., for plaintiffs.

          Kevin A. Finnerty and Ian M. Welsh, MINNESOTA ATTORNEY GENERAL for defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT

          JOHN R. TUNHEIM CHIEF JUDGE

         Plaintiffs Alexie Portz, Jill Kedrowski, Abigail Kantor, Marilia Roque Diversi, Fernanda Quintino Dos Santos, Maria Hauer, Haley Bock, Kaitlyn Babich, Anna Lindell, and Kiersten Rohde brought this class action against Defendants St. Cloud State University (“SCSU”) and Minnesota State Colleges and Universities (“MNSCU”), alleging gender discrimination in SCSU's past and present allocation of athletic opportunities and in SCSU's treatment and allocation of benefits for its female student-athletes in violation of Title IX of the Education Amendments Act of 1972 (“Title IX”).

         The Court previously dismissed Plaintiffs' Title IX claim for unequal allocation of athletic-related financial assistance, Plaintiffs' section 1983 claim for sex-based discrimination in violation of the Fourteenth Amendment, and Plaintiffs' claims for damages. Portz v. St. Cloud State Univ. (“Portz I”), 297 F.Supp.3d 929, 957 (D. Minn. 2018); Portz v. St. Cloud State Univ., No. CV 16-1115, 2018 WL 3579109, at *6 (D. Minn. July 25, 2018). The Court conducted a bench trial from November 26 through December 4, 2018, and the parties provided final written submissions on January 14, 2019. The issues for trial included (1) whether SCSU's past allocation of athletic participation opportunities and treatment and benefits was inequitable in violation of Title IX, and (2) whether SCSU's present allocation of athletic participation opportunities and treatment and benefits is inequitable in violation of Title IX. After carefully considering all testimony, exhibits, and arguments presented at trial, taking into account the credibility and accuracy of the evidence, and examining the applicable law, the Court will find that both SCSU's past and present allocation of athletic-participation opportunities and athletic treatment and benefits do not comply with Title IX.

         FINDINGS OF FACT [1]

         1. The Findings of Fact set forth herein are undisputed or have been proven by a preponderance of the evidence.

         2. To the extent the Court's Conclusions of Law include what may be considered Findings of Fact, they are incorporated herein by reference.

         I. THE PARTIES

         3. SCSU is a university in the MNSCU system. Minn. Stat. § 136F.10 (2018). Dr. Robbyn Wacker is the President of SCSU. (Tr. Vol. V at 56, Dec. 27, 2018, Docket No. 361.) SCSU receives approximately $20 million in federal financial assistance each year. (Tr. Vol. I at 78-79, Dec. 27, 2018, Docket No. 357; Tr. Vol. V at 40; Pls.' Ex. 215F at 24; Pls.' Ex. 215G at 25; Pls.' Ex. 215H at 27.) Thus, it is subject to Title IX and its regulations. 20 U.S.C. § 1682, et seq.; 34 C.F.R. § 106.11.

         4. MNSCU's mission “is to provide programs of study that meet the needs of students for occupational, general, baccalaureate, and graduate education.” Minn. Stat. § 136F.05 (2018). MNSCU has policies that prohibit discrimination based on gender, including in the context of athletics. (Pls.' Ex. 47.)

         5. Alexie Portz, Jill Kedrowski, Abigail Kantor, Marilia Roque Diversi, Fernanda Quintino dos Santos, Maria Hauer, Haley Bock, Kaitlyn Babich, Anna Lindell, and Kiersten Rohde are female student-athletes who attend or recently attended SCSU and are members or were recently members of SCSU's varsity intercollegiate women's tennis or women's Nordic skiing teams. Portz participated in SCSU's tennis team between 2014 and 2018 while she attended SCSU. (Tr. Vol. I at 44.) Hauer participated in SCSU's Nordic skiing team all four years she attended SCSU until 2017. (See Tr. Vol. II at 256-57, Dec. 27, 2018, Docket No. 358.)

         6. Plaintiffs represent a class certified by this Court defined as “[a]ll 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 . . . and (3) the allocation of benefits provided to varsity athletes.” Portz I, 297 F.Supp.3d at 957.

         II. SCSU'S ATHLETIC PROGRAMS

         7. SCSU's student enrollment reached its peak in fiscal year (“FY”) 2011. (Tr. Vol. IV at 163, Dec. 27, 2018, Docket No. 360; see also Pls.' Ex. 200 at 1.) SCSU has experienced declining enrollment since then. (Tr. Vol. IV at 163; see also Pls.' Ex. 200 at 1.) SCSU went from a peak in student enrollment in FY 2011 of 12, 050 students to a low in FY 2017 of 8, 506 students. (Pls.' Ex. 200 at 1.)

         8. SCSU athletic teams compete in one of two National Collegiate Athletics Association (“NCAA”) divisions. (Tr. Vol. VI at 49, Dec. 27, 2018, Docket No. 362.) Two SCSU athletic teams-men's ice hockey and women's ice hockey-compete at the NCAA Division I level. (Id.) All other SCSU intercollegiate athletic teams compete at the NCAA Division II level. (Id.)

         9. During the 2015-16 academic year SCSU sponsored twenty-three sports teams including twelve women's teams and eleven men's teams. (See Tr. Vol. V at 56, 67, 70-71.)

         10. SCSU suffered a budget shortfall during the 2015-16 academic year so all departments were asked to come up with a cost-containment strategy. (See Id. at 56; Tr. Vol. III at 78-79, Dec. 27, 2018, Docket No. 359.) Multiple strategies were proposed by the Athletic Department and reviewed. (Tr. Vol. V at 56-57.) Ultimately, a recommendation to eliminate certain athletic teams was adopted. (See Id. at 58; Tr. Vol. I at 13.)

         11. On March 2, 2016, SCSU announced its plan to eliminate six sports starting in the 2016-17 academic year. (See Tr. Vol. I at 12-13; Pls. Ex. 63.) Those sports included men's indoor track, men's outdoor track, men's cross-country, men's and women's tennis, and women's Nordic skiing.[2] (Tr. Vol. I at 13; Pls.' Ex. 63.) One reason given for the cuts was to bring SCSU into compliance with Title IX. (Pls.' Ex. 63.)

         12. In the 2016-17 academic year, SCSU sponsored nineteen athletic teams including: men's baseball, men's and women's basketball, women's indoor and outdoor track and field, men's football, men's and women's golf, men's and women's ice hockey, women's Nordic skiing, women's soccer, women's softball, men's and women's swimming and diving, women's tennis, women's cross country, women's volleyball, and men's wrestling. (Pls.' Ex. 200 at 1-4; see also Pls.' Ex. 206 at 2.)

         13. SCSU organizes its intercollegiate sports into three tiers offering three different levels of support for each tier. (Tr. Vol. V at 25.) Tier 1 includes men's hockey, women's hockey, men's basketball, women's basketball, men's football and women's volleyball. (Id.) Tier 2 includes baseball, softball, women's soccer, men's swimming and diving, women's swimming and diving, men's track and field, women's track and field, and wrestling. (Id.) Tier 3 includes men's cross country, women's cross country, Nordic skiing, men's golf, women's golf, men's tennis, and women's tennis. (Id.) Table 1 summarizes the number of male and female athletes participating in sports at each tier for certain academic years.

         Table 1.

Academic year Beginning

Male Tier 1

Female Tier 1

Male Tier 2

Female Tier 2

Male Tier 3

Female Tier 3

2014

144

57

204

156

24

35

2015

140

57

205

158

21

30

2016

135

56

107

161

9

24

2017

134

60

107

139

8

29

(Pls.' Exs. 156, 157; Defs.' Exs. 44R, 45R.)

         14. Most SCSU varsity sports compete in the Northern Sun Intercollegiate Conference (“NSIC”). (Tr. Vol. IV at 23.) Some varsity sports, such as swimming and ice hockey, also compete in other conferences. (Id.) SCSU made no efforts to get the NSIC to add new sports for women except for one instance when Morris Kurtz, then SCSU Athletic Director, advocated for women's soccer to be added. (Id. at 23-24.)

         15. SCSU actively encouraged its students to participate in club sports and intramurals. (Tr. Vol. IV at 25.) Kurtz spearheaded the addition of women's ice hockey as an intercollegiate varsity sport at SCSU. (See Id. at 25-26.) SCSU did not solicit the opinions of coaches, administrators, and athletes to determine if more sports should be added to meet the interests and abilities of students aside from when it added Nordic skiing, soccer, and women's ice hockey. (Id. at 26-27.) SCSU did not examine student participation in other sports to determine if they demonstrated skills or abilities fundamental to other sports that may be added. (Id. at 27.) SCSU did not hold tryouts or other direct observations of participation for sports in which there was an interest. (Id. at 27-28.)

         16. SCSU recruits nationally and internationally for their hockey, football, basketball, and volleyball teams. (Tr. Vol. IV at 26.)

         17. SCSU also offers the following club sports: men's lacrosse, women's lacrosse, men's rugby, women's rugby, rowing, men's hockey, women's equestrian, alpine skiing, karate, judo, cricket, men's volleyball, and ultimate frisbee. (Pls.' Ex. 131.)

         III. ROSTER MANAGEMENT

         18. After SCSU announced cuts to its athletic program in 2016, it also implemented a roster management plan designed to achieve Title IX compliance. (Pls.' Ex. 58.) The plan involved increases in the roster of several women's teams and decreases in the roster of several men's teams. (Id.)

         19. The roster size for each SCSU athletic team was set by Athletic Director Heather Weems. (Tr. Vol. I at 242.) Table 2 summarizes the roster management plan for the 2018-19 academic year.

         Table 2.

Athletic Team

Men (# of student-athletes)

Women (# of student-athletes)

Baseball

≤ 37

Softball

≥ 21

Basketball

≤ 15

≥ 18

Football

≤ 97

Golf

≤ 9

≥ 10

Tennis

≥ 9

Volleyball

≥ 18

Ice Hockey

≤ 27

≥ 25

Swimming/Diving

≤ 27

≥ 42

Wrestling

≤ 40

Cross Country

≥ 12

Indoor Track

≥ 31

Outdoor Track

≥ 35

Nordic skiing

≥ 8

Soccer

≥ 28

(Pls.' Ex. 46 at 1-19.)

         20. Multiple SCSU athletic coaches testified to the challenges presented by the roster management plan. Women's basketball coach, Lori Fish, testified that her ideal roster size was thirteen female student-athletes and a male practice squad. (Tr. Vol. II at 24.) Fish testified that thirteen is ideal because it allows her to be more effective as a coach. (Id. at 25.) She is able to work with all of the players and watch what they are doing. (Id.) With a larger team, Fish has to run more drills and manage those drills instead of paying individual attention to the athletes. (See id.) A larger rosters also means that more players are standing around during drills, and players do not get as many repetitions at the drill. (Id. at 26.) Fish typically plays eight players each game. (Id.) Fish testified that it is not realistic that she would ever play eighteen people, as required under the roster management plan, so not everyone on the roster will get playing time. (Id. at 58.)

         21. SCSU men's baseball coach Patrick Dolan testified that playing more nonconference games increases a team's chances of moving on to post-season competition. (Tr. Vol. II at 100.) It also allows for team bonding and allows him to identify players' strengths and weaknesses. (Id. at 101.) However, due to roster management, Dolan has chosen not to have the team play in nonconference games before their normal season start date. (Id. at 102.) For the purposes of roster management, students are counted as participating in a sport if they are on the team roster on the date of the team's first competition. (Tr. Vol. I at 231.) Thus, Dolan has foregone the nonconference games to delay the date of his team's first competition. (See Tr. Vol. II at 102.) The delay gives him more time to pare down his roster to the maximum of thirty-seven. (See id.)

         22. Paula U'Ren, the women's softball coach, testified that her ideal roster size is sixteen to eighteen players. (Tr. Vol. II at 160.) A larger roster means that U'Ren is more spread out at practice because she is the only coach. (Id. at 161.) U'Ren also meets with the players off the field to better understand her players; however, with more players she is spread thin. (Id.) One of recruits' top five questions is whether they will get to play in games, but the large roster means that not every team member gets to play. (Id. at 162-63.) Players have left the team due to lack of playing time. (Id. at 163.) When the softball team ended up with fewer athletes on the roster than the minimum, Holly Schreiner directed Coach U'Ren to try more players out and then cut them later on. (Id. at 164.)

         23. Schreiner told Coach Steven Costanzo that he could add players to the men's wrestling team in the second semester after she filed her annual compliance reports and those new players would not count against Costanzo's roster cap. (Tr. Vol. II at 206.) Schreiner then approved the addition of new members to the wrestling team for the second semester. (Id. at 206-07.) Schreiner also told Costanzo that he could bring on “a couple” of athletes for the second semester, but “a handful” could be an issue. (Tr. Vol. II at 210.)

         IV. ATHLETIC PARTICIATION OPPORTUNITIES

         24. When performing its participant counts, SCSU counts each athlete on the roster of an athletic team as one “participation opportunity” if that athlete is on the team roster as of the first date of competition. (Tr. Vol. I at 229-31, 244.) Any athlete added after the first date of competition does not count as a participation opportunity. (Id. at 230.) Likewise, any athlete on the roster as of the first date of competition that quits after the first date of competition will continue to count as an participation opportunity. (Id. at 230-31.) This method of counting is consistent with the Equity in Athletics Disclosure Act counting guidelines. (Tr. Vol. II at 244-45.) The Office of Civil Rights (“OCR”), however, counts participation opportunities differently. (Id. at 245.) For OCR purposes, a participation opportunity is triggered if a student-athlete is on the roster as of the first date of the competition or if the student-athlete is added to the roster at any time during the competitive season. (Id.) OCR also counts students receiving athletic aid as participation opportunities. (Id. at 245-46.)

         25. Between 2004 and 2016, SCSU would have needed between 117 and 179 more athletic participation opportunities for women to achieve exact proportionality. (See Pls.' Exs. 101, 200, 206.) Table 3 summarizes SCSU's historical participation numbers.

         Table 3.

Total

Undergraduate

Enrollment

Athletic Participation Exact Proportional Female Number Female Participation Gap
Academic Year Beginning % Male % Female Male Female % Male % Female
2003
45.7
54.3
314
217
59.1
40.9
373
156
2004
46.0
54.0
315
208
60.2
39.8
369
161
2005
46.2
53.8
344
229
60.0
40.0
401
172
2006
47.1
52.9
328
196
62.6
37.4
368
172
2007
47.8
52.2
334
201
62.4
37.6
365
164
2008
49.4
50.6
418
250
62.6
37.4
429
179
2009
49.7
50.3
340
215
61.3
38.7
343
128
2010
50.3
49.7
339
219
60.8
39.3
336
117
2011
50.1
49.9
331
200
62.3
37.7
330
130
2012
51.3
48.7
369
228
61.8
38.2
351
123
2013
50.4
49.6
368
228
61.7
38.3
362
134
2014
50.0
50.0
372
248
60.0
40.0
372
124

(Pls.' Ex. 101.)[3]

         26. Table 4 contains SCSU's reported participation and enrollment numbers for the 2016-17 and 2017-18 academic years.

         Table 4.

Year

Female Athletes

Male Athletes

Female Students

Male Students

2016-17

241

252

4, 371

4, 135

2017-18

228

249

4, 092

3, 973

(See Defs.' Exs. 38 at 3, 7; 44R; 45R; Tr. Vol. I at 241-42.)

         27. Based on these numbers, women made up 51.4% and 50.7% of the student population in the 2016-17 and 2017-18 academic years respectively. They, however, only made up 48.9% and 47.8% of athletic opportunities offered by SCS U.SCSU would have to add 26 and 28 athletic opportunities for women to achieve exact proportionality.

         28. The disproportionality is even starker when the athletic opportunities provided to women's tennis and Nordic skiing are excluded. SCSU would have to add 41 and 42 more athletic opportunities for women to achieve proportionality. (See Defs.' Exs. 38 at 3, 7; 44R; 45R; Tr. Vol. I at 241-42.)

         29. Table 5 summarizes the Court's calculations in paragraphs 21 and 22.

         Table 5.

Year
% Female Students
% Male Students
Proportionality
Proportionality without Tennis and Nordic Skiing

2016-17

4371 /
4371 4135
= 51.4%
4135 /
4371 4135
= 48.6%
(252 / 0.486) - 252
-241 = 264
26 15 = 41

2017-18

4092 /4092 �
= 50.7%
3973/ 4092 �
= 49.3%
(249 / 0.493) - 249
- 228 = 28
28 14 = 42

         30. In 2016-17, SCSU sponsored twelve women's sports: basketball, golf, ice hockey, Nordic skiing, soccer, softball, swimming and diving, tennis, indoor track and field, outdoor track and field, cross country, and volleyball. (Defs.' Ex. 38 at 7.) Of these, only soccer (27), indoor track and field (32), and outdoor track and field (28) had rosters greater than 26, and only swimming and diving (45) had a roster greater than 41. (Id.)

         31. In 2017-18, SCSU sponsored the same twelve women's sports. (See Defs.' Exs. 44R at 16-26; 45R.) Only soccer (28), swimming and diving (38), and outdoor track and field (29) had 28 or more athletes on their rosters. (Defs.' Exs. 44R at 16-26; 45R.) None had more than 42 athletes on their rosters. (Defs.' Exs. 44R at 16-26; 45R.)

         V. STUDENT ABILITY AND INTEREST

         32. SCSU has added various women's teams as intercollegiate sports since the passage of Title IX in 1972. It added track and field in 1973-74, golf and cross country in 1975-76, soccer in 1994-95, Nordic skiing in 1997-98, and ice hockey in 1998-99. (Pls.' Ex. 131.)

         33. SCSU has conducted only two surveys of student athletic abilities and interests in participating in a sport since the passage of Title IX. (See Tr. Vol. IV at 16.) SCSU conducted its first survey (the “1997 Survey”) during the 1997-98 academic year. (Tr. Vol. IV at 11.) Nordic skiing was added to SCSU's sports portfolio as a result of the 1997 Survey. (Id.)

         34. During the 2015-16 academic year, SCSU conducted another athletic abilities and interests survey (the “2015 Survey”). (Id.; Pls.' Ex. 48.) Overall, 1, 912 students responded to the survey. (Pls.' Ex. 48 at 4.) Roughly sixty percent (1, 164) of respondents were women. (Id.) Seventy-five percent of respondents (1, 434) indicated that they were interested in participating in intramural program, club sport, or varsity athletics. (Id. at 5.) Twenty-four female students indicated they were interested in Nordic skiing, and 111 were interested in women's tennis. (Id. at 7.) The survey also showed a variety of interest in other sports by female students such as beach volleyball (167), bowling (93), lacrosse (51), rifle (36), badminton (21), cheer (27), and dance (43). (Id. at 6-9.) SCSU did not implement any changes based on the results of the 2015 Survey because it decided to comply with Title IX in another way. (Tr. Vol. III at 179-80.)

         35. Heather Weems is currently the Athletic Director for SCSU. (Tr. Vol. III at 72.) She has held the position since 2012. (Id.) During her tenure, Weems has not received any formal requests to add any new women's sports teams. (Tr. Vol. III at 161-62.) Weems did not have any knowledge that there was any unmet interest and abilities of female students. (Id. at 163.) Weems was, however, aware of growing interest in women's lacrosse in the region. (Id. at 164.) Additionally, one of the named plaintiffs, Jill Kedrowski, played lacrosse in high school, in addition to basketball and tennis. (Tr. Vol. IV at 152.) Kedrowski was a talented player and was recruited to play all three sports at various colleges and universities. (Id. at 153.) Kedrowski won many awards for lacrosse including being third in the state in scoring as a junior. (Id.) She also served as the team captain in high school. (Id.)

         36. In the late 1990s, there were informal requests to add women's bowling, rugby, and rowing. (Tr. Vol. IV at 12-13.) The requests were denied due to lack of financial resources. (Id. at 13.) There were also requests to elevate women's bowling, rowing, and rugby from club to varsity status. (Id.) In 1998 and 2003 two SCSU faculty members met with Kurtz to discuss the possibility of adding women's bowling. (Id. at 14.) None of these requests resulted in the addition or elevation of any sports. (Id.) SCSU does not have any policies or processes for elevating club sports and responding to expressions of student interest and varsity opportunities. (Id. at 21-22.) Relatedly, SCSU does not have any policies or procedures for receiving or responding to requests to add teams. (Id. at 28.)

         37. SCSU did not conduct formal interviews with students, admitted students, coaches, administrators, or others regarding interest in a particular sport from 1984 to the present. (Id. at 15-16.) Nor did SCSU research high school, community, or amateur participation in sports. (Id. at 19-20.)

         38. During the 1980-81 academic year, SCSU eliminated the men's and women's gymnastics teams for financial reasons. (Id. at 8-9.) Specifically, the equipment was too expensive and insurance costs were too high. (Id.)

         VI. LEVELS OF COMPETITION

         39. SCSU's game schedules are set by the relevant conference. (Tr. Vol. V at 81.) But the Nordic skiing conference does not necessarily have a conference schedule, so meets are scheduled by the coaches. (Id. at 81-82.)

         40. All of SCSU's sports teams play NCAA regulated schedules. (Id.at 82.) The NCAA sets a minimum and maximum number of games teams are required or allowed to play. (Id.) All SCSU teams compete at the NCAA championship level. (Id.) All SCSU teams are automatic qualifier sports-they automatically qualify for post season play if they have a successful season and win their championship. (Id.)

         41. The NCAA sets some limits on how practices operate and how long a season is. (Id. V at 88.) Coaches then run practices and seasons within those parameters. (Id.)

         VII. TREATMENT AND BENEFITS

         A. Tennis

         42. The women's tennis team did not have sufficient funding for an entire season but made do as best they could. (Tr. Vol. I at 21-22.) During travel, four players shared a room, and the players were told not to order drinks during meals so that the team could save money. (Id. at 21-22, 61.) The team generally travelled only within the region with the exception of a spring break trip to Florida. (Id. at 61.) To attend spring break trips, players had to contribute $300 to $500 of their personal funds to cover the trip. (Id. at 40.)

         43. The women's tennis team had access to post-season competition. (Id. at 36.)

         44. The women's tennis team practiced and played their matches at Stay Fit, a private facility with five indoor tennis courts. (Id. at 42, 67.) The men's team, when it existed, did the same. (Id. at 67.) Players drove to Stay Fit for practice and games. (Id. at 56.) Often, the players carpooled to get to the facility. (Id.)

         45. Neither Stay Fit nor SCSU's campus had a locker room designated for the sole use of the SCSU women's tennis team. (Id. at 43, 59.) The men's tennis team, when it existed, also did not have a designated locker room. (Id. at 67.)

         46. The tennis team did not have a trainer present at practices; however, they were allowed to use the trainer services available in the hockey center. (Id. at 57.)

         47. SCSU provided a skirt, shorts, a tank top, and a t-shirt to players as uniforms. (Id. at 60.)

         48. A female tennis player complained once that tennis is excluded from flyers promoting upcoming games of SCSU sports. (Pls.' Ex. 89 at 3.) The player complained that both men's and women's tennis matches had been excluded from that flyer. (Id.)

         B. Basketball

         49. The women's basketball team had one head coach, Lori Fish, one full-time assistant, and one adjunct assistant. (Tr. Vol. II at 23.) The men's basketball team had one head coach, one full-time assistant, and a graduate assistant. (Tr. Vol. V at 101-02.)

         50. Because of SCSU's roster management plan, Fish was asked to carry an increased number of players on the team-at least eighteen-despite a cut to the team's budget. (Tr. Vol. II at 29.) At the same time, the men's basketball team was mandated to have no more than twelve students, however, their budget had not been cut. (Id.)

         51. The women's basketball team practices between 2:00 p.m. and 4:00 p.m., which is problematic because some players are still in class during this period. (Id. at 30-31.)

         52. Women's basketball games are played at 5:30 p.m., making it difficult for fans to attend the game. (Id. at 32-33.) The men play at 7:30 p.m., reducing the barriers to fan attendance at games. (Id.)

         53. The women's basketball team budget does not allow for out-of-region travel for games. (Id. at 34.) The team was able to travel to Washington for a game in 2018; however, the trip was financed through fundraising. (Id. at 34-36.) The men's basketball team is able to travel about every two years to places like Las Vegas or California. (Id. at 35.) During overnight travel, the women's basketball team sometimes rooms three or even four players to a room, while the men's team rooms two players to a room. (Id. at 39.)

         54. The women's basketball team cannot meet in the locker room because it is too small. (Id. at 43.) Instead, they meet in a classroom. (Id. at 48-49.) The women's locker room has standard metal lockers lining the walls and red folding chairs in the center of the room. (Defs.' Ex. 64 at 129-30; Pls.' Ex. 173 at 168.) The men's locker room has quality lockers made of wood that appear to be larger than the women's lockers. (Defs.' Ex. 64 at 134-36; Pls.' Ex. 173 at 57.) The men's locker room also has red folding chairs stacked to the side, two large murals covering portions of two walls, two black couches, and wood paneling along one wall with a white board mounted in the center. (Defs.' Ex. 64 at 132-37.) The women's locker room is located further from services, such as the weight room and training room, than the men's locker room. (Tr. Vol. II at 52; Pls.' Ex. 225A at 2.)

         55. During home games, the women's team uses the public bathrooms located near the gymnasium because the bathrooms in the locker room are on another floor and too far away. (Tr. Vol. II at 49-50.) The players and coaches wait in line with spectators to use the bathroom. (Id.) The men's team does not have to share a bathroom with the public during home games. (Id. at 51.) Nor do visiting women's teams. (Id. at 50.)

         56. The women's team uses one set of travel gear for multiple years and will only order new ones if there is enough money in their budget for it. (Tr. Vol. II at 53-54.) One set is over six years old. (Id. at 54.) The players are required to return the gear after each season for use by the team again the following year. (Id.) The men's team orders new gear each year and the players keep the gear at the end of the season. (Id.)

         57. Roster management has diminished the quality of athletic participation opportunities provided to the women's basketball players. Coach Fish is unsure whether SCSU is providing all players on the women's team a meaningful experience because of a high roster number requirement. (Id. at 58.) Fish tells players that it is not realistic that eighteen people will get to play, despite eighteen being her minimum roster size requirement. (Id.) Fish finds it difficult to keep players focused and engaged when they are the bottom five players and those players know that they are probably not going to get a chance to play. (Id.) Fish also has to spread herself out more off the court to deal with player issues not related to athletics. (Id. at 58-59.)

         C. ...


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