Berndsen v. N.D. Univ. Sys.
| Decision Date | 10 August 2021 |
| Docket Number | No. 19-2517,19-2517 |
| Citation | 7 F.4th 782 |
| Parties | Breanna BERNDSEN; Kristen Elizabeth Joyce Campbell; Charly Dahlquist; Taylor Flaherty; Ryleigh Houston; Anna Kilponen; Rebekah Kolstad; Sarah LeCavalier; Alyssa MacMillan; Annelise Rice; Abigail Stanley, Plaintiffs - Appellants v. NORTH DAKOTA UNIVERSITY SYSTEM, Defendant - Appellee |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jane Brunner, Daniel M. Siegel, Anne Butterfield Weills, Siegel & Yee, Oakland, CA, Sharon Van Dyck, Van Dyck Law Firm, Minneapolis, MN, for Plaintiffs-Appellants.
Daniel A. Cohen, Nelson & Mullins, Atlanta, GA, Matthew A. Sagsveen, Assistant Attorney General, Attorney General's Office, Bismarck, ND, for Defendant-Appellee.
Before COLLOTON, GRASZ, and STRAS, Circuit Judges.
After the University of North Dakota cut its women's ice hockey team—but not its men's ice hockey team—the former players sued the university system for violating Title IX, the ban on sex discrimination at federally-funded institutions. See Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. §§ 1681 – 1688. The district court granted the University's motion to dismiss for failure to state a claim. We reverse.
In their putative class action on behalf of current, prospective, and future female athletes, the athletes alleged that statewide, North Dakotans favor ice hockey over all other sports.1 High school and club teams across the state and region reflect that popularity as young women play ice hockey and want to keep playing in college.
Seventy-three years after the University started the men's team, it started the women's team. For women, ice hockey was the "most prominent and most popular" sport on campus, with eight Olympians on its roster at one point. The team played against seven other teams in "the strongest and most competitive women's ice hockey league" in the country. It did so at the "most competitive" collegiate level (National Collegiate Athletic Association Division I), alongside thirty-four other teams. And at its end, the team ranked sixth, nationally.
When the University cut their program, the athletes relied on an implementing regulation and an agency interpretation of that regulation to allege a Title IX claim. The athletes’ legal theory, however, clashed with the district court's understanding of how a Title IX claim should be pled, and the district court dismissed the complaint. After reviewing the regulatory materials’ text and structure, we conclude that the district court's reasoning was flawed.2
Since 1972, under Title IX, "[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). Because that thirty-seven word statute does "not specifically address its application to athletics," Equity in Athletics, Inc. v. Department of Education , 639 F.3d 91, 95 (4th Cir. 2011), Congress directed an agency head to "prepare and publish ... proposed regulations ... which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports." Education Amendments of 1974, Pub. L. No. 93–380, § 844 (1974).
Under the implementing regulation, effective since 1975, "[n]o person shall, on the basis of sex, be excluded from participation in ... any ... athletics offered by a recipient, and no recipient shall provide any athletics separately[.]" 34 C.F.R. § 106.41(a) (emphasis added).3 But that general ban includes an exception for some single-sex teams:
Notwithstanding the requirements of paragraph (a) ..., a recipient may operate ... separate teams ... where selection for such teams is based upon competitive skill or the activity involved is a contact sport . However, where a recipient operates ... a team ... for members of one sex but operates ... no such team for ... the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport .
Id. § 106.41(b) ("Separate Teams Provision") (emphasis added). Subsection 106.41(b) also expressly categorizes ice hockey as a contact sport. Under the next subsection, "[a] recipient which operates ... intercollegiate ... athletics shall provide equal athletic opportunity for members of both sexes." Id. § 106.41(c). The regulation sets out a nonexclusive list of factors for the agency to use in determining if "equal opportunities are available[.]" Id. One factor asks if "the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes[.]" Id. § 106.41(c)(1) (emphasis added).
Nearly four-and-a-half years after publishing the regulation, the agency issued a policy interpretation of that regulation. Title IX of the Education Amendments of 1972: A Policy Interpretation, 44 Fed. Reg. 71,413 (Dec. 11, 1979) ("1979 Interpretation").4 In doing so, the agency sought to: (1) "clarif[y] the meaning of ‘equal opportunity’ "; (2) "explain[ ] the factors and standards set out in the law and regulation which the [agency] will consider in determining ... compli[ance]"; and (3) "provide[ ] guidance" to identify if any existing disparities "are justifiable and nondiscriminatory." Id. at 71,414 (emphasis added).
Section VII of the 1979 Interpretation delineates three overarching compliance subsections. Id. For this case, we only examine the third, Section VII.C: "Effective Accommodation of Student Interests and Abilities." Id. at 71,417–18. Section VII.C's six distinct provisions address § 106.41(c)(1) ’s mandate "to accommodate effectively the interests and abilities of students to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes." Id. at 71,417 (emphasis added).
In Section VII.C.2, the agency explains that it "will assess compliance with the interests and abilities section of the regulation" by examining three separate issues: (a) "determination of athletic interests and abilities of students"; (b) "selection of sports offered"; and (c) "levels of competition available including the opportunity for team competition." Id. Then, to correspond to those three issues, the agency sets forth three separate "Application of the Policy" provisions: (1) Section VII.C.3 (); (2) Section VII.C.4 ("Selection of Sports" provision); and (3) Section VII.C.5 ("Levels of Competition" provision). Each of those separate provisions addresses different ways the agency will assess compliance.
Here, the athletes alleged that the University violated a specific provision under the Selection of Sports provision (VII.C.4.a).5 The Selection of Sports provision states:
In the selection of sports, the regulation does not require institutions to integrate their teams nor to provide the same choice of sports to men and women. However, where an institution sponsors a team in a particular sport for members of one sex, it may be required either to permit the excluded sex to try out for the team or to sponsor a separate team for the previously excluded sex.
Still within the Selection of Sports provision, the agency gives two explanations for what "[e]ffective accommodation means," with one for "Contact Sports" (VII.C.4.a), and another for "Non-Contact Sports" (VII.C.4.b). Id. at 71,418. Under the former—which sits at the center of this appeal—the agency explains as follows:
Id. ("Contact Sports Clause") (emphasis added).
The University moved to dismiss the athletes’ complaint, relying on one of two compliance tests from a different provision—the Levels of Competition provision (VII.C.5). That provision addresses two issues: "the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules, which equally reflect their abilities." Id. Each issue then receives its own compliance provision. Section VII.C.5.a—which the University invoked and the district court relied on—gives three ways to assess participation-opportunity compliance through what is known as the "three-part test." Id. Section VII.C.5.b sets out two ways to assess competitive-schedule compliance. Id.
The 1979 Interpretation includes yet another compliance provision—one that encompasses all three of Section VII.C's "Application of the Policy" provisions. Under the "Overall Determination of Compliance" provision in Section VII.C.6, the agency "will base its compliance determination under [ § 106.41(c) ] of the regulation upon a determination" of whether: (1) the "policies ... are discriminatory in language or effect"; (2) "disparities of a substantial and unjustified nature in the benefits, treatment, services, or opportunities afforded male and female athletes exist in the institution's program as a whole"; or (3) "disparities in individual segments of the program with respect to benefits, treatment, services, or opportunities are substantial enough in and of themselves to deny equality of athletic opportunity." Id.
In 1996, the agency issued a transmittal letter and a memorandum clarifying the 1979 Interpretation's three-part test....
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