Favia v. Indiana University of Pennsylvania

• Decision Date: 13 October 1993
• Docket Number: No. 93-3051,93-3051
• Citation: 7 F.3d 332
• Parties: , 86 Ed. Law Rep. 631 Dawn FAVIA; Wendy Schadelmeier; Kim Dalcamo; Amy Phaelhler, on behalf of themselves and all similarly situated individuals, Appellees, v. INDIANA UNIVERSITY OF PENNSYLVANIA; Lawrence Pettit; Frank Cignetti, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 332

7 F.3d 332

129 A.L.R.Fed. 745, 86 Ed. Law Rep. 631

Dawn FAVIA; Wendy Schadelmeier; Kim Dalcamo; Amy Phaelhler, on behalf of themselves and all similarly situated individuals, Appellees, v. INDIANA UNIVERSITY OF PENNSYLVANIA; Lawrence Pettit; Frank Cignetti, Appellants.

No. 93-3051.

United States Court of Appeals Third Circuit.

Argued May 12, 1993.

Decided Oct. 13, 1993.

Ernest D. Preate, Jr., Atty. Gen., Donna J. McClelland (argued), Deputy Atty. Gen., Kate L. Mershimer, Sr. Deputy Atty. Gen., and John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen. of Pennsylvania, Pittsburgh, PA, for appellants.

Jon Pushinsky (argued), Edward A. Olds, Michael Louik, Berger, Kapetan, Meyers, Rosen, Louik & Raizman, P.C., Pittsburgh, PA, and Arthur H. Bryant and Anne W. Bloom, Trial Lawyers for Public Justice, P.C., Washington, DC, for appellees.

PRESENT: BECKER, HUTCHINSON and ROTH, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants, Indiana University of Pennsylvania ("I.U.P" or the "University"), I.U.P. Director of Athletics Frank Cignetti, and I.U.P. President Lawrence Pettit ¹ appeal an order of the United States District Court for the Western District of Pennsylvania denying their motion to modify a preliminary injunction. The injunction requires them to reinstate two varsity women's sports programs, field hockey and gymnastics. It resulted from a class action filed by appellees, Dawn Favia, Wendy Schandelmeier, Kim Dalcamo, and Amy Phaehler, ² members of the University women's varsity field hockey and gymnastics teams. They claimed that the University's planned elimination of those intercollegiate women's programs violated Title IX of the Education Amendments of 1972, 20 U.S.C.A. §§ 1681-1688 (West 1990). ³ I.U.P. sought the modification to allow it to replace the women's gymnastics program with a women's soccer program. It claimed the substitution of soccer for gymnastics would bring it closer to compliance with Title IX and therefore the district court erred in denying its motion to modify the preliminary injunction. ⁴

The district court held I.U.P. had not shown the circumstances had changed enough to make continued enforcement of the injunction inequitable. After examining the record and considering the parties' contentions, we hold that the district court did not abuse its discretion in denying modification of the preliminary injunction. We will therefore affirm.

I.

I.U.P. is a state-affiliated university located in Indiana, Pennsylvania. It has 6,003 full-time undergraduate female students (55.6% of the population) and 4,790 male students (44.4% of the population). Prior to the institution of this action, I.U.P. fielded nine male and nine female varsity athletic teams in intercollegiate competition. The number of teams was equal, but the male teams were significantly larger. Thus, 313 men but only 190 women, a 62% to 38% ratio, had an opportunity to compete in intercollegiate athletics. There was also a disparity in athletic scholarships. In 1991, I.U.P. awarded only 21% of its athletic scholarship funds to women, and for each $8.00 spent on men's athletics it spent only $2.75 on women's athletics.

In mid-1991, citing budgetary concerns, I.U.P. decided to shrink the size of its athletic department. It announced plans to discontinue four varsity athletic programs, the men's tennis and soccer teams and the women's gymnastics and field hockey teams.

On October 5, 1992, three student gymnasts, Dawn Favia, Wendy Schandelmeier, and Kim Dalcamo, and one member of the women's varsity field hockey team, Amy Phaehler, filed a class action lawsuit in the United States District Court for the Western District of Pennsylvania. They were seeking a decree that would force the University to comply with Title IX and eliminate the disparity between its men's and women's intercollegiate sports programs. They also asked for a preliminary injunction ordering I.U.P. to reinstate the women's gymnastics and field hockey teams. They alleged that the University's failure to provide athletic opportunities for women at a level comparable to those provided for men violated Title IX and adversely affected all female students who might wish to take part in intercollegiate athletics. They described the affected class as all present and future women students at I.U.P. who participate, seek to participate, or are deterred from participating in intercollegiate athletics at the University.

On October 21-23, 1992, the district court held a hearing on the preliminary injunction. A number of witnesses were called and testified. Dr. David DeCoster, I.U.P.'s Vice-President of Student Affairs, stated that the women's field hockey and gymnastics teams were selected for elimination because of a national trend showing declining participation in those sports. Dr. Vivian Fuller, former associate director of intercollegiate athletics and senior women's administrator, and Mr. Frank Cignetti, athletic director, both testified that I.U.P. already had plans in place to elevate soccer from its current club status to a varsity sport for women as soon as it became financially able. Cignetti also stated that gymnastics was expensive and not conducive to an efficient use of athletic facilities.

Although I.U.P. eliminated an equal number of men's and women's teams, the evidence presented showed that it actually increased the imbalance between individual opportunities for men and women in percentage terms. In addition, most of the financial savings from the team eliminations were shown to have resulted from elimination of the women's teams. Their demise saved I.U.P. $110,000.00. Cutbacks in the men's teams saved only $35,000.00.

On November 2, 1992, after the hearing on the preliminary injunction, the district court determined that I.U.P. did not meet any prong of the three-part regulatory test for compliance with Title IX's requirement of balanced participation. ⁵ Accordingly, it held that I.U.P. had failed to provide equal athletic opportunities to female students and was in violation of Title IX. The district court therefore granted preliminary injunctive relief and ordered I.U.P. to reinstate the women's gymnastics and field hockey programs and simultaneously certified the class. I.U.P. did not appeal the grant of preliminary injunctive relief or file a motion for reconsideration with the district court within ten days as required by Federal Rule of Civil Procedure 59(e). ⁶

On January 7, 1993, I.U.P. filed a motion to modify the preliminary injunction. It sought to replace the gymnastics team with a women's soccer team. I.U.P. argued that the inclusion of a women's soccer team would further the goals of Title IX by creating more opportunities for women while saving the athletic department money which could then be used to finance recruitment of additional female athletes.

On January 22, 1993, the district court held a hearing on the motion to modify the preliminary injunction. Athletic Director Cignetti testified that substitution of a women's soccer team for the gymnastics team would increase the percentage of females participating in athletics from the current 39% to 43%. Cignetti also testified that the University believed soccer would better reduce the imbalance between male and female athletic opportunities than field hockey and gymnastics, and would also be in line with the national trend toward female participation in soccer and away from gymnastics. The record contains evidence that only two of the current gymnastics team members will return next year because the others are either graduating or not participating. ⁷ On the other hand, approximately 30-35 women currently attending the University have expressed an interest in soccer. In addition, the University showed that the establishment of a soccer team in place of the gymnastics team would permit more productive use of I.U.P.'s gym facilities because gymnastics required these facilities to be dedicated solely to that sport during its season. According to Cignetti, the plaintiff class of female I.U.P. students would be better served if the gymnastics team were replaced by a soccer team.

The district court denied the motion to modify the preliminary injunction on January 22, 1993. It reasoned if it were to permit the school to dissolve the gymnastics team it would in effect make "the original plaintiffs [who prevailed] in this case losers." Appellants' Appendix ("App.") at 167. The substitution of teams "would really amount to vacating an order and putting in something entirely different." Id. Essentially, the district court looked at I.U.P.'s motion as a belated request for reconsideration of a preliminary injunction that had not been timely appealed.

On February 3, 1993, I.U.P. did file a timely notice of appeal from the district court's order denying modification of the preliminary injunction.

II.

The district court had subject matter jurisdiction over this case under 28 U.S.C.A. § 1331 (West 1966) and 28 U.S.C.A. § 1343(a) (West Supp.1993). Appellees, the named representative plaintiffs and the class they represent, dispute our appellate jurisdiction. They argue that I.U.P.'s "Motion to Modify the Preliminary Injunction" was an untimely motion for reconsideration of the grant of a preliminary injunction whose denial is no longer appealable or subject to appellate review.

This Court retains appellate jurisdiction over all "[i]nterlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions." 28 U.S.C.A. § 1292(a)(1) (West Supp.1993); see Cohen v. Board of Trustees, 867 F.2d 1455, 1464 n. 7 (3d Cir.1989). The class argues that I.U.P.'s motion did not seek to modify the injunction but merely to relitigate the underlying issue, and therefore it should be treated as a motion for reconsideration under Federal Rule...