Anders v. Cal. State Univ., CASE: 1:21-cv-179-AWI-BAM

• Decision Date: 21 April 2021
• Docket Number: CASE: 1:21-cv-179-AWI-BAM
• Parties: TAYLOR ANDERS, HENNESSEY EVANS, ABBIGAYLE ROBERTS, MEGAN WALAITIS, and TARA WEIR, individually and on behalf of all those similarly situated, Plaintiffs, v. CALIFORNIA STATE UNIVERSITY, FRESNO; TERRENCE TUMEY, in his official capacity as Director of Athletics at California State University, Fresno; JOSEPH CASTRO, in his official capacity as former President of California State University, Fresno; and DR. SAÚL JIMÉNEZ-SANDOVAL, in his official capacity as Interim President of California State University, Fresno, Defendants.
• Court: U.S. District Court — Eastern District of California

TAYLOR ANDERS, HENNESSEY EVANS, ABBIGAYLE ROBERTS, MEGAN WALAITIS,and TARA WEIR, individually and on behalf of all those similarly situated, Plaintiffs, v. CALIFORNIA STATE UNIVERSITY, FRESNO; TERRENCE TUMEY,in his official capacity as Director of Athletics at California State University, Fresno;

JOSEPH CASTRO, in his official capacity as former President of California State University, Fresno;

and DR. SAÚL JIMÉNEZ-SANDOVAL, in his official capacity as Interim President of

California State University, Fresno, Defendants.

CASE: 1:21-cv-179-AWI-BAM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

April 21, 2021

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

(Doc. No. 2)

In the 2020-21 academic year, Defendant California State University, Fresno ("Fresno State") sponsored eight varsity sports for men (baseball, basketball, cross country, football, golf, tennis, outdoor track and wrestling) and 13 varsity sports for women (basketball, cross country, equestrian, golf, lacrosse, soccer, softball, swimming and diving, tennis, indoor track, outdoor track, volleyball and water polo). Doc. No. 19 at 8:14-18;¹ Doc. No. 19-2 at 19. Each of these sports is segregated by sex. Doc. No. 19-2 at 19. On October 16, 2020, Fresno State announced itwould stop offering men's wrestling, men's tennis and women's lacrosse at the end of the current 2020-21 academic year. Doc. No. 2-1 at 6:13-18.

On February 12, 2021, five current members of Fresno State's women's lacrosse team ("Plaintiffs") filed a putative class action against Fresno State and certain Fresno State administrators (collectively, "Defendants") alleging that Defendants violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX") and implementing regulations by failing to provide female students an equal opportunity to participate in varsity athletics; failing to provide female athletes with an equal allocation of financial aid; and failing to provide female athletes with benefits comparable to those provided to male athletes. Doc. No. 1.

On February 12, 2021, Plaintiffs also filed the instant motion seeking a preliminary injunction barring Fresno State from cutting women's lacrosse—or any other women's team—and a preliminary injunction requiring Fresno State "to treat the women's lacrosse team and its members fairly" during the pendency of this litigation. Doc. No. 2-1 at 6:5-9.

The Court deemed the motion suitable for decision without oral argument pursuant to Local Rule 230(g) and took the motion under submission on March 19, 2021. Doc. No. 27. Having thoroughly reviewed all filings relating to the motion, including briefs, expert reports and declarations, the Court will deny the motion in part and grant the motion in part for the reasons set forth below.²

LEGAL FRAMEWORK

I. Injunctive Relief

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (a preliminary injunction is issued at the discretion of the district court). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555U.S. at 20; Angelotti Chiropractic v. Baker, 791 F.3d 1075, 1081 (9th Cir. 2015). The party seeking an injunction "has the general burden of establishing the elements necessary to obtain injunctive relief." Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009).

The Ninth Circuit applies the preliminary injunction factors using a "sliding scale" approach, in which "a stronger showing of one element may offset a weaker showing of another." hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 992 (9th Cir. 2019). A court may therefore issue a preliminary injunction where a movant shows merely "that serious questions are raised" as to the merits of a claim if the movant also shows that "the balance of hardships tips sharply in his favor." Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984); see also, Angelotti, 791 F.3d at 1081. Even where the balance of hardships tips sharply in favor of the moving party, however, "it must be shown as an irreducible minimum that there is a fair chance of success on the merits." Martin, 740 F.2d at 675; see also, Doe #1 v. Trump, 984 F.3d 848, 870 (9th Cir. 2020) ("[e]ven when the balance of hardships tips sharply in the plaintiff's favor, the plaintiff still must demonstrate serious questions going to the merits"). Likelihood of success on the merits is the "most important" preliminary injunction factor; if a movant fails to meet this "threshold inquiry," a court need not consider the other factors, in the absence of "serious questions going to the merits." Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citations and internal quotation marks omitted); see also, Trump, 984 F.3d at 870; California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018).

II. Title IX

Title IX provides 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).

At the direction of Congress, the Department of Health, Education and Welfare (the predecessor of today's Department of Education) issued regulations for Title IX that took effect in 1975.³ See 34 C.F.R. § 106.1. Title IX regulations specific to athletics are set forth at 34 C.F.R. §106.41. 34 C.F.R. § 106.41(c) states that school receiving federal funds "shall provide equal athletic opportunity for members of both sexes" and that the following factors, among others, are to be considered "[i]n determining whether equal 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.

34 C.F.R. § 106.41(c)(1)-(10).

The Ninth Circuit interprets these regulations as establishing "two components of Title IX's equal athletic opportunity requirement: 'effective accommodation' and 'equal treatment.' " Mansourian v. Regents of Univ. of California, 602 F.3d 957, 964 (9th Cir. 2010) ("Mansourian II"). The "effective accommodation" requirement derives from 34 C.F.R. § 106.41(c)(1). Id. at 965 ("an institution may violate Title IX solely by failing to accommodate effectively the interests and abilities of student athletes of both sexes, even if the benefits provided athletes of both sexes are equivalent" (citation and internal quotation marks omitted)); Roberts, 998 F.2d at 828 ("Although § 106.41(c) goes on to list nine other factors that enter into a determination of equal opportunity in athletics, an institution may violate Title IX simply by failing to accommodate effectively the interests and abilities of student athletes of both sexes."). The "equal treatment"standard, for its part, derives from 34 C.F.R. § 106.41(c)(2)-(10), which have collectively been interpreted to require "equivalence in the availability, quality and kinds of other athletic benefits and opportunities provided male and female athletes." Mansourian II, 602 F.3d at 965. "Effective accommodation claims thus concern the opportunity to participate in athletics, while equal treatment claims allege sex-based differences in the schedules, equipment, coaching, and other factors affecting participants in athletics." Id. at 966.

The Department of Education has issued a considerable amount of guidance with respect to Title IX regulations, including "A Policy Interpretation; Title IX and Intercollegiate Athletics," 44 Fed. Reg. 71,413 (Dec. 11, 1979) ("1979 Policy Interpretation"); "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test" (Jan. 16, 1996) ("1996 Clarification"), available at http://www.ed.gov/about/offices/list/ocr/docs/clarific.html; and "Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance" (July 11, 2003) ("2003 Further Clarification"), available at https://www2.ed.gov/about/offices/list/ocr/title9guidanceFinal.html. The Ninth Circuit has held that the regulations set forth by the Department of Education with respect to Title IX are entitled to "controlling weight" and that "federal courts are to defer substantially" to the Department of Education's interpretations of those regulations. See Neal v. Bd. of Trustees of California State Universities, 198 F.3d 763, 770-71 (9th Cir. 1999) (citing Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150 (1991) and Chevron USA v. NRDC, 467 U.S. 837, 843-44 (1984)); see also, Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir. 1993) ("[W]e must accord [the Department of Education's] interpretation of Title IX appreciable deference."); Horner v. Kentucky High Sch. Athletic Ass'n, 43 F.3d 265, 273 (6th Cir. 1994) ("The Policy Interpretation is a 'considered interpretation' of the applicable regulations, and is entitled to substantial deference by the courts.").

ANALYSIS

This motion involves both an effective accommodation claim under 34 C.F.R. §106.41(c)(1) and an equal treatment claim under 34 C.F.R. § 106.41(c)(2)-(10). The Court will analyze each claim in turn, starting with the...