Boucher v. Syracuse University

Decision Date06 January 1999
Docket NumberDocket No. 98-7678
Citation164 F.3d 113
Parties131 Ed. Law Rep. 635 Jennifer L. BOUCHER, Alexis Snader, Cathryn M. Ungerman, Rexanne Johannes, Talya Anter, Catherine S. Biuso, Maggie Rozycki, Meghan Delehanty, Individually and on Behalf of all Others Similarly Situated, Plaintiffs-Appellants, v. SYRACUSE UNIVERSITY, Kenneth Shaw, Chancellor of Syracuse University, and John J. Crouthamel, Athletic Director of Syracuse University, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Faith A. Seidenberg, Seidenberg and Strunk, Syracuse, NY, for Plaintiffs-Appellants.

Edward R. Conan, Bond Schoeneck & King, LLP, Syracuse, NY, for Defendants-Appellees.

Before: FEINBERG, CALABRESI, and SOTOMAYOR, Circuit Judges.

CALABRESI, Circuit Judge:

Former female club athletes at Syracuse University ("Syracuse" or "the University") appeal from an April 3, 1998 judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., J.) granting summary judgment to Syracuse on a Title IX accommodation claim. Plaintiffs also appeal two orders of June 12, 1996. The first such order dismissed their Title IX equal treatment claims, and the second conditionally certified a class.

We affirm in part, dismiss the appeal in part, and vacate and remand in part.

FACTS AND PROCEDURAL HISTORY

Plaintiff students "individually and on behalf of all others similarly situated" filed suit in May of 1995 against Syracuse University, alleging numerous violations of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and its governing regulations. Seven of the eight named plaintiffs were at that time members of Syracuse's club lacrosse team and the eighth was a member of the University's club softball team. All plaintiffs have since graduated from the University.

The plaintiffs argued that Syracuse discriminated against female athletes in its allocation of participation opportunities (which includes decisions regarding which varsity teams to field as well as how many opportunities for participation by female varsity athletes are thereby created as a result of those decisions). 1 Plaintiffs also alleged that Syracuse provided unequal benefits to varsity female athletes as compared to varsity male athletes, and provided unequal scholarship funding to varsity female athletes as compared to varsity male athletes. 2

Plaintiffs sought class certification in view of the fact that college students are a fluid group and that without such certification, mootness issues would likely arise. See, e.g., Cook v. Colgate Univ., 992 F.2d 17, 19-20 (2d Cir.1993) (holding a Title IX appeal moot, once plaintiffs, seeking injunctive relief, had graduated). In their equal treatment claims, plaintiffs asked for declaratory and injunctive relief ordering the University to provide equal benefits and scholarships to varsity male and female athletes. In their accommodation claim, plaintiffs sought the establishment of varsity lacrosse and softball teams for women.

Just over 50% of the Syracuse's student population is female, yet, when this complaint was filed, women made up only 32.4% of its athletes. In its 1993-94 National Collegiate Athletic Association submission, Syracuse stated that of its 681 varsity student-athletes, 217 were women, while 464 were men. These numbers reflected a 19% disparity between the percentage of varsity athletes who were female and the percentage of the University's students who were female. 3

At the time that this suit was begun in May of 1995, the University funded eleven men's varsity teams and nine women's varsity teams. Just prior to the filing of the complaint, Syracuse announced a plan to add two new varsity women's teams to its athletic program--women's varsity soccer and women's varsity lacrosse. These teams began to play, respectively, in the 1996-97 and the 1997-98 academic years, thus bringing the number of varsity teams funded by the school to eleven men's and eleven women's. 4

The University established five of its nine women's varsity teams in 1971 5--when it first funded women's varsity sports. It dropped one of these sports (fencing) in 1972, and replaced it with field hockey. Crew was added as a women's varsity team in 1977. Three additional women's sports were added to the varsity roster in 1981. 6 After 1981, no new women's varsity team was created by the University until the addition of the varsity soccer team in 1997. Thus, until the filing of this complaint in 1995, fourteen years passed by without the University creating any new women's varsity teams. In the course of this litigation, Syracuse announced plans to institute a varsity women's softball team which, according to the University's representations at oral argument, will begin play in the 1999-2000 academic year.

* * * *

On June 12, 1996, the district court granted summary judgment to the University on plaintiffs' equal treatment claims--those that challenged the alleged unequal allocation of benefits and scholarships between varsity men's and women's teams (brought under 34 C.F.R. § 106.41(c)(2)-(8), (10) and 34 C.F.R. § 106.37). The court held that since none of the named plaintiffs were varsity athletes, they did not have standing to assert the equal treatment claims. Its ruling on this issue was proper and we affirm the dismissal of plaintiffs' equal treatment claims substantially for the reasons the district court gave. See Boucher v. Syracuse Univ., No. 95-CV-620, 1996 WL 328444 (N.D.N.Y. June 12, 1996). At the same time, the court ruled that plaintiffs could go forward with their accommodation claim and additionally deemed that the plaintiffs could pursue an equal treatment claim challenging the allocation of funds between male and female club teams--an action that the plaintiffs had not brought and never litigated. See id. at * 4.

In a separate order issued the same day, the district court held that the plaintiffs' proposed class included members with conflicting interests. See Boucher v. Syracuse Univ., No. 95-CV620, 1996 WL 328441, at * 2 & n. 2 (N.D.N.Y. June 12, 1996). Finding that "the factual allegations [of plaintiffs' complaint] only address the need for women's varsity lacrosse and women's varsity softball," the court defined two possible classes: present and future lacrosse players who desire to play varsity lacrosse, and present and future softball players who want to play varsity softball. Id. at * 2.

The district court reached its conclusion as to appropriate classes by analyzing whether lacrosse and softball players could exist together as one class under Rule 23. That rule requires that: (1) questions of law or fact are common to the class; (2) claims or defenses of the representative parties are typical of those of the class; (3) class representatives are members of the class who possess the same interests and suffered the same injuries as class members; and (4) members of the class are so numerous that joinder would be impracticable. See Fed.R.Civ.P. 23(a). Although it found that commonality and typicality existed, the court determined that the two classes were in conflict because " 'in an era of static enrollment and increasing financial demands on institutions of higher learning, the resources available for intercollegiate athletic programs are finite' " and hence that compliance might well be achieved by the elevation of one sport and not the other.

Boucher, 1996 WL 328441, at * 4 (quoting Bryant v. Colgate Univ., 93-CV-1029, 1996 WL 328446, at * 15 (N.D.N.Y. June 11, 1996)).

Since the majority of plaintiffs were lacrosse players, the court decided to certify only the current and future "would be" varsity lacrosse players. This certification was made conditional on a demonstration by plaintiffs that joinder of all relevant members of the class would be impractical. 7 See id. at * 5. The district court did not certify a class of women, current and future, who wished to play varsity softball "because of the potential conflict of interest discussed above." Id. at * 4 n. 4.

After a period of limited discovery, the district court granted summary judgment to the University on plaintiffs' accommodation claim. It found that although opportunities to participate in varsity athletics at Syracuse were not allocated equally between the sexes, the University nevertheless fell within one of the safe harbors set forth in the governing regulations of Title IX. See Boucher v. Syracuse Univ., No. 95-CV-620, 1998 WL 167296, at * 4 (N.D.N.Y. Apr.3, 1998). Under the implementing regulations, there are three safe harbor defenses to a claim of unequal accommodation of student interest in varsity athletics. See 34 C.F.R. § 106.41(c)(1); 44 Fed.Reg. 71413 (1979). The district court held that Syracuse met the requirements of the second safe harbor because it had "continued a practice of program expansion which is responsive to the abilities and interests of its student body." 1998 WL 167296, at * 4. 8

Specifically, the district court found that (1) Syracuse had a "strong history of adding women's sports programs"; (2) although between 1982 and 1995, the University had added no new varsity women's teams, it did fund additional scholarships and provide enhanced facilities, coaching, and support services for its women varsity athletes; (3) between 1982 and 1995, the absolute number of female participants in varsity sports had increased from 148 to 217; and (4) Syracuse had established two new varsity women's teams since 1995 and planned to add a third in 1999-2000. Id.

Finally, the district court noted that in conducting the safe harbor analysis, a court "may consider whether there are any formal policies in place which might indicate that the institution is monitoring the pulse of its students' interests in anticipation of expansion." Id. Despite recognizing that the school had not established that it had any formal policy to...

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