Biediger v. Quinnipiac Univ.

Decision Date07 August 2012
Docket NumberDocket No. 10–3302–cv.
Citation691 F.3d 85,283 Ed. Law Rep. 704
PartiesStephanie BIEDIGER, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Logan Riker, individually and on behalf of all others similarly situated, Robin L. Sparks, individually, Plaintiffs–Appellees, v. QUINNIPIAC UNIVERSITY, Defendant–Appellant.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Kristen Galles, Equity Legal, Alexandria, VA (Jonathan B. Orleans, Alex V. Hernandez, Pullman & Comley, LLC, Bridgeport, CT; David McGuire, Sandra J. Staub, ACLU Foundation of Connecticut, Hartford, CT; Lenora M. Lapidus, Galen Sherwin, Women's Rights Project, American Civil Liberties Union Foundation, New York, NY, on the brief), for PlaintiffsAppellees.

Edward A. Brill (Susan D. Friedfel, Rebecca L. Berkebile, on the brief), Proskauer Rose LLP, New York, NY, for DefendantAppellant.

Dennis J. Dimsey, Holly A. Thomas, Attorneys, Thomas E. Perez, Assistant Attorney General, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Amicus Curiae United States of America, in support of PlaintiffsAppellees.

Lauren B. Fletcher, Craig E. Davis, Jasmine S. McGhee, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA; Fatima Goss Graves, Dina R. Lassow, Neena K. Chaudhry, National Women's Law Center, Washington, D.C., for Amici Curiae National Women's Law Center; American Association of University Women; Asian American Justice Center; Business and Professional Women's Foundation; California Women's Law Center; Connecticut Women's Education and Legal Fund; Feminist Majority Foundation; Legal Aid Society–Employment Law Center; Legal Voice; National Association for Girls and Women in Sport; National Association of Commissions for Women; National Association of Social Workers, National and Connecticut Chapter; National Council of Jewish Women; National Council of La Raza; National Education Association; National Partnership for Women & Families; Sargent Shriver National Center on Poverty Law; Southwest Women's Law Center; Women's Law Center of Maryland; Women's Law Project; and Women's Sports Foundation, in support of PlaintiffsAppellees.

Lawrence J. Joseph, Esq., Washington, D.C., for Amicus Curiae Eagle Forum Education & Legal Defense Fund, Inc., in support of DefendantAppellant.

Before: WINTER, RAGGI, and CHIN, Circuit Judges.

REENA RAGGI, Circuit Judge:

Quinnipiac University appeals pursuant to 28 U.S.C. § 1292(a)(1) from a permanent injunction ordered on July 22, 2010, by the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge ), after a bench trial at which Quinnipiac was found to have violated Title IX of the Education Amendments of 1972 (Title IX) by failing to afford equal participation opportunities in varsity sports to female students. See Biediger v. Quinnipiac Univ., 728 F.Supp.2d 62 (D.Conn.2010). Quinnipiac argues that the injunction, which prohibits any such future discrimination, should be vacated because it is based on a Title IX ruling infected by errors in counting the varsity athletic participation opportunities afforded Quinnipiac's female students in the 2009—10 school year. Specifically, Quinnipiac faults the district court for excluding from its count of the total athletic participation opportunities afforded female students: (1) 11 roster positions on the women's indoor and outdoor track and field teams, held by members of Quinnipiac's women's cross-country team who were required to join the track teams even though they were unable to compete in 2009—10 because they were injured or “red-shirted”; 1 and (2) all 30 roster positions on Quinnipiac's nascent women's competitive cheerleading team, based on a finding that the team did not afford the athletic participation opportunities of a varsity sport. Quinnipiac further contends that, even if these 41 roster positions should not count as varsity athletic participation opportunities for women, the district court erred in concluding that (3) the resulting 3.62% disparity between the percentage of all participation opportunities in varsity sports afforded female students (58.25%) and the percentage of enrolled female undergraduates (61.87%) established a Title IX violation warranting the challenged injunctive relief.

We identify no merit in these arguments, and we affirm the challenged injunction substantially for the reasons stated by the district court in its comprehensive and well reasoned opinion.

I. BackgroundA. Quinnipiac's Decision To Eliminate Women's Volleyball Prompts This Title IX Action

This lawsuit has its origins in Quinnipiac's March 2009 announcement that in the 2009—10 academic year, it would eliminate its varsity sports teams for women's volleyball, men's golf, and men's outdoor track and field, while simultaneously creating a new varsity sports team for women's competitive cheerleading. Plaintiffs, five Quinnipiac women's volleyball players and their coach, Robin Sparks, filed this action in April 2009, charging the university with violating Title IX by denying women equal varsity athletic participation opportunities, and seeking an injunction that, among other things, prevented Quinnipiac from eliminating its women's volleyball team. After a hearing, the district court preliminarily enjoined Quinnipiac from withdrawing support from its volleyball team, finding that Quinnipiac systematically and artificially increased women's teams' rosters and decreased men's teams' rosters to achieve the appearance of Title IX compliance. See Biediger v. Quinnipiac Univ., 616 F.Supp.2d 277 (D.Conn.2009). The district court subsequently certified a plaintiff class of all present and future female Quinnipiac students who had been or would be harmed by the alleged Title IX discrimination and sought injunctive relief. See Biediger v. Quinnipiac Univ., No. 3:09–cv–621 (SRU), 2010 WL 2017773 (D.Conn. May 20, 2010). In June 2010, the district court conducted a bench trial on plaintiffs' claim of disproportionate allocation of athletic participation opportunities and, finding in their favor, granted permanent injunctive relief.2

B. Statutory and Regulatory Background

To discuss the district court's challenged ruling further, we must briefly review certain controlling law and regulations.

Title IX provides, in relevant part, that [n]o 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). Although the statutory language makes no mention of athletics programs, the former Department of Health, Education and Welfare (“HEW”) and its successor agency, the Department of Education (“DOE”), have interpreted Title IX to require recipients of federal financial assistance operating or sponsoring “interscholastic, intercollegiate, club or intramural athletics” to “provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c).

Section 106.41(c) provides a non-exhaustive list of factors relevant to determining whether equal athletic opportunities are available:

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity.

Id. Title IX claims of sex discrimination in athletics fall into two categories based on the § 106.41(c) factors to which the claims are addressed: effective accommodation claims focus on § 106.41(c)(1), and equal treatment claims focus on § 106.41(c)(2)-(10). See McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 291 (2d Cir.2004); accord Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 919 (7th Cir.2012). At issue in this appeal is plaintiffs' effective accommodation claim.

In 1979, HEW published in the Federal Register a policy interpretation of § 106.41(c), which states that a school's compliance with the effective accommodation requirement will be assessed “in any one of the following ways”:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or

(3) Where the members of one sex are underrepresented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

1979 Policy Interpretation, 44 Fed.Reg. 71,413, 71,418 (Dec. 11, 1979). The 1979 Policy Interpretation thus affords a school three safe harbors in defending against an effective accommodation claim under § 106.41(c)(1).

In 1996, the DOE's Office of Civil Rights (“OCR”), which is responsible for enforcement of Title IX, see20 U.S.C. § 3441(a)(3), clarified that the analysis for determining whether a university affords substantially proportionate participation opportunities to athletes of both sexes under the first prong of the three-part test—the prong relied on by Quinnipiac in defending against plaintiffs' Title IX...

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  • AGAINST WOMEN'S SPORTS.
    • United States
    • Washington University Law Review Vol. 95 No. 5, June 2018
    • 1 Junio 2018
    ...school athletes alleged unequal treatment, benefits and opportunities, and retaliation). (199.) See, e.g., Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012) (collegiate women's volleyball players successfully obtained permanent injunction against elimination of their sport on the gro......

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