198 F.3d 763 (9th Cir. 1999), 99-15316, Neal v. Bd. Of Trustees

Docket Nº:99-15316
Citation:198 F.3d 763
Party Name:STEPHEN NEAL; JONATHAN ARCHULETA; BRENT CAMERON; MATT CORONA; MOSES DELFIN; LIONEL HALSEY; BRAD HULL; MIKE MENDOZA; KIRK METZ; JASON RILEY; ANDY VARNER; LARRY VASQUEZ; NATHAN VASQUEZ; ERIN KELLY; NATALIE MORROW; FRIENDS OF BAKERSFIELD WRESTLING; KERN COUNTY WRESTLING ASSOCIATION; NATIONAL WRESTLING COACHES ASSOCIATION; DAVID AFOA; NICK BRADLEY; ELI
Case Date:December 15, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 763

198 F.3d 763 (9th Cir. 1999)

STEPHEN NEAL; JONATHAN ARCHULETA; BRENT CAMERON; MATT CORONA; MOSES DELFIN; LIONEL HALSEY; BRAD HULL; MIKE MENDOZA; KIRK METZ; JASON RILEY; ANDY VARNER; LARRY VASQUEZ; NATHAN VASQUEZ; ERIN KELLY; NATALIE MORROW; FRIENDS OF BAKERSFIELD WRESTLING; KERN COUNTY WRESTLING ASSOCIATION; NATIONAL WRESTLING COACHES ASSOCIATION; DAVID AFOA; NICK BRADLEY; ELIZAR CEBALLOS; RAPHAEL DAVIS; RUBEN DELEON; DON DELFIN; JOSH FACTOR; JEFF GARDNER; MAX HARRIS; THOMAS JUAREZ; BRETT LOBEL; KEVIN MEANS; JASON MERRELL; IAN NELMS; ROBBIE ODELL; TITO ORTIZ; JOSH READY; MAX SCHURKAMP; JOE YOUNAN; SEBA CLEMENTE, Plaintiffs-Appellees,

and

JEREMY BRIDGES; DAN CORPSTEIN; TONY DE SOUZA; DEMETRIO DURAN; DAVID MOLANO; JASON RAMSTETTER; ERIC ROWE; RYAN SHEETS; COBY WRIGHT; JESSICA AREVALO; CINDY JORGENSEN; JESSICA RAMSEY; ABBY SCHWARZBERG; LORI STOCKER; DIANA WESENDUNK, Plaintiffs,

v.

THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITIES; CALIFORNIA STATE UNIVERSITY, BAKERSFIELD; BARRY MUNITZ; TOMAS ARCINIEGA; RUDY CARVAJAL, Defendants-Appellants.

No. 99-15316

United States Court of Appeals, Ninth Circuit

December 15, 1999

Argued and Submitted November 4, 1999

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COUNSEL: Peter W. Davis, Crosby, Heafey, Roach & May, San Francisco, California, for the defendants-appellants.

Mark Martel, Palo Alto, California, for the plaintiffs-appellees.

Josephine R. Potuto, University of Nebraska College of Law, Lincoln, Nebraska, for the amici.

Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Chief District Judge, Presiding. D.C. No. CV-97-05009-REC

Before: William C. Canby, Jr., Cynthia Holcomb Hall, and Susan P. Graber, Circuit Judges.

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OPINION

HALL, Circuit Judge:

The instant case requires us to consider whether Title IX prevents a university in which male students occupy a disproportionately high percentage of athletic roster spots from making gender-conscious decisions to reduce the proportion of roster spots assigned to men. We hold that Title IX does not bar such remedial actions.

The Board of Trustees of the California State Universities and other defendants appeal from the district court's order granting the motion of Neal and other plaintiffs for a preliminary injunction. Neal's suit alleged that the decision of California State University, Bakersfield ("CSUB") to reduce the number of spots on its men's wrestling team, undertaken as part of a university-wide program to achieve "substantial proportionality" between each gender's participation in varsity sports and its composition in the campus's student body, violated Title IX and the Equal Protection Clause of the United States Constitution. The district court determined that regulations promulgated pursuant to Title IX, and CSUB's program, which was modeled after those regulations, violated Title IX. The district court declined to reach the merits of the constitutional challenge, but did hold that the regulations interpreting Title IX "raised serious constitutional questions" and rejected Plaintiffs' construction of Title IX on that alternative ground. This Court has jurisdiction to review the district court's granting of a preliminary injunction under 28 U.S.C. S 1292(a)(1). We reverse, and vacate the injunction.

I.

Defendant/Appellant CSUB is a large public university where female students outnumbered male students by roughly 64% to 36% in 1996. The composition of CSUB's varsity athletic rosters, however, was quite different. In the 1992-93 academic year, male students took 61% of the university's spots on athletic rosters and received 68% of CSUB's available athletic scholarship money.

This imbalance helped prompt a lawsuit by the California chapter of the National Organization for Women, alleging that the California State University system was violating a state law that is similar to the federal government's Title IX. That lawsuit eventually settled, resulting in a consent decree mandating, inter alia, that each Cal State campus have a proportion of female athletes that was within five percentage points of the proportion of female undergraduate students at that school. This portion of the consent decree was patterned after the first part of the three-part Title IX compliance test promulgated by the Department of Education's Office for Civil Rights ("OCR").

When the university agreed to the consent decree, California was slowly emerging from a recession, and state funding for higher education was declining. As a result, CSUB administrators were seriously constrained in what they could spend on athletic programs. The university chose to adopt squad size targets, which would encourage the expansion of the women's teams while limiting the size of the men's teams. In order to comply with the consent decree, CSUB opted for smaller men's teams across the board, rejecting the alternative of eliminating some men's teams entirely. CSUB's plan was designed to bring it into compliance with the consent decree by the 1997-98 academic year, meaning that female students would fill at least 55% of the spaces on the school's athletic teams.1

As part of this across-the-board reduction in the number of slots available to men's athletic teams, the size of the men's wrestling team was capped at 27. Although the reduction was protested vigorously by wrestling coach Terry Kerr, and team captain Stephen Neal expressed concerns

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that a smaller squad would prove less competitive, the smaller CSUB team performed exceptionally well, winning the Pac-10 Conference title and finishing third in the nation in 1996. In 1996-97, the men's wrestling roster was capped at 25, and four of these spots went unused. Nevertheless, in response to the rumored elimination of the men's wrestling team, on January 10, 1997, the team filed the instant lawsuit, alleging that the university's policy capping the size of the men's team constituted discrimination on the basis of gender in violation of Title IX and the Equal Protection Clause of the Federal Constitution.

The team sought declaratory and injunctive relief to prevent the squad size reductions. CSUB responded by filing a motion to dismiss. The district court initially granted a temporary restraining order preventing the reductions, then granted a preliminary injunction to prevent CSUB from reducing the size of the wrestling team. The district court concluded as a matter of fact that CSUB's primary motivation for capping the size of the men's teams was to meet the gender proportionality requirements in the consent decree. The district court concluded as a matter of law that capping the male teams in order to comply with the consent decree violated Title IX. Although the district court refused to rule on Plaintiffs' equal protection challenge to the CSUB policy, the court did reject a reading of Title IX that created a "safe harbor " for any school that achieved substantial proportionality between the percentage of athletes of one gender and the percentage of students of that same gender. The court concluded that such an approach would raise serious questions under the Equal Protection Clause, and that a desire to avoid reaching such questions, in and of itself, constituted "ample reason for rejecting the safe harbor idea as part of Title IX."

II.

On appeal, this Court reviews the district court's grant of a preliminary injunction for abuse of discretion, and "that discretion is abused where the district court based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998) (citation and internal quotation marks omitted), aff'd sub nom. Saenz v. Roe, 119 S.Ct. 1518 (1999). The district court's interpretation of Title IX is reviewed de novo. See Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999).

III.

This case has its origins in Congress's passage of Title IX in 1972. Title IX was Congress's response to significant concerns about discrimination against women in education. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 523-524 & n.13 (1982). In the words of the legislation's primary sponsor, Senator Birch Bayh, Title IX was enacted to "provide for the women of America something that is rightfully theirs -an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work." 118 Cong. Rec. 5808 (1972); see also Bell, 456 U.S. at 526-27 ("Senator Bayh's remarks, as those of...

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