Mayerova v. E. Mich. Univ., Case No. 18-11909

• Decision Date: 27 September 2018
• Docket Number: Case No. 18-11909
• Citation: 346 F.Supp.3d 983
• Parties: Marie MAYEROVA and Ariana Chretien, Plaintiffs, v. EASTERN MICHIGAN UNIVERSITY, James Smith, Scott Wetherbee, and the Board of Regents, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

346 F.Supp.3d 983

Marie MAYEROVA and Ariana Chretien, Plaintiffs,

v.EASTERN MICHIGAN UNIVERSITY, James Smith, Scott Wetherbee, and the Board of Regents, Defendants.

Case No. 18-11909

United States District Court, E.D. Michigan, Southern Division.

Signed September 27, 2018

Beatriz Mate-Kodjo, Lori Bullock, Jill Zwagerman, Newkirk Zwagerman PLC, Des Moines, IA, Ellis B. Freatman, III, Roberts & Freatman, Ypsilanti, MI, for Plaintiffs.

Brian M. Schwartz, Jacob Michael Hogg, Megan P. Norris, Miller Canfield Paddock and Stone, Detroit, MI, Robert T. Zielinski, Chicago, IL, for Defendants.

OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE

Plaintiffs Marie Mayerova and Ariana Chretien allege that defendants Eastern Michigan University, EMU President James Smith, EMU Athletic Director Scott Wetherbee, and the EMU Board of Regents violated Title IX and the Equal Protection Clause by failing to provide sufficient opportunities for women to participate in athletics. This lawsuit was filed following EMU's decision to eliminate four teams; men's wrestling, men's swimming and diving, women's tennis, and women's softball. Plaintiffs seek to represent a class of every impacted woman student-athlete, recruit, and future recruit/student-athlete. Count I of the complaint alleges a violation of Title IX. Count II, brought pursuant to 42 U.S.C. § 1983, alleges a violation of the Equal Protection Clause of the Fourteenth Amendment.

Plaintiffs filed a motion for temporary restraining order/preliminary injunction on June 15, 2018. (Doc. 3). Defendants filed a response on June 29, 2018. (Doc. 13). Plaintiffs replied on July 9, 2018. (Doc. 17). Both parties filed hearing briefs. (Doc. 23 and 25). The court held oral argument and heard testimony on July 17, 2018. The court took the matter under advisement and ordered supplemental briefing. Each party filed a post-hearing brief on July 31, 2018, (Doc. 43, 35 and 36), and August 7, 2018, (Doc. 37 and 38). For the reasons stated below, Plaintiffs' motion is GRANTED.

BACKGROUND FACTS

A. The Student-Athlete Plaintiffs

Marie Mayerova is a senior at EMU who joined the women's tennis team her freshman year and played until EMU terminated the team. A native of the Czech Republic, Mayerova was recruited by EMU and received a full athletic scholarship. Mayerova contends that her student visa restricts her to attending EMU and that "she does not have the resources to effectively transfer." Doc. 3-1 at 5. According to Mayerova, a transfer would require her to return to the Czech Republic in order to re-apply for a new student visa.

Ariana Chretien is a junior at EMU who was recruited for the women's softball team, which she joined her freshman year. Chretien receives a partial scholarship and is studying aviation, a less common major. After EMU disbanded the softball team, Chretien received interest from other schools, but testified that they either did not offer her major or did not have scholarships available. Hearing Tr. at 64.

B. Athletic Opportunities at Eastern Michigan University

Approximately 12,700 undergraduates attend EMU, which is a member of the Mid-American Conference. Defendants assert that 59.5% of undergraduates for the 2017-2018 school year were women, and 40.5% were men. At that time, EMU had 729 undergraduate student-athletes participating in varsity athletics on twenty-one teams. Four hundred and six men, or 55.7% of EMU student-athletes, participated on nine teams: baseball, basketball, cross country, football, golf, swimming and diving, track and field (indoor and outdoor), and wrestling. (Doc. 13-3 at PageID 178). Three hundred twenty-three women, or 44.3% of EMU student-athletes, participated on twelve teams: basketball, cross country, golf, gymnastics, rowing, soccer, softball, swimming and diving, tennis, track and field (indoor and outdoor), and volleyball. Id.

EMU has operated with a budget deficit for the last seven years. The university attributes its financial struggles to declining state support and shifts in population and enrollment. Because EMU's athletic department is not self-sufficient, the university's financial problems have impacted athletic funding. In March 2018, EMU decided to reduce athletic spending by $2 million by eliminating four teams: men's wrestling, men's swimming and diving, women's tennis, and women's softball.

(Doc. 34 at PageID 1002, 1004). Eighty-three student-athletes participated on these teams during the 2017-2018 school year – fifty-eight men and twenty-five women. (Doc. 13-3 at PageID 177).

In making the decision to eliminate teams, EMU sought to retain NCAA Division 1 standing and remain in the Mid-American Conference. This required maintaining sixteen sports, including football, men's and women's basketball, and volleyball, as well as at least six male sports. EMU avers that remaining in the Mid-American Conference "adds value to EMU degrees and provides a financial benefit to the University," which would incur substantial costs if it were to exit the conference. (Doc. 34 at 2.) EMU also considered the costs associated with each sport, including the cost per athlete. Although EMU tried "to be as least impactful ... as possible" to female athletic participation, it claims that it could not achieve its budgetary goals by eliminating men's teams alone. Tr. at 84-85, 92.

EMU announced the teams' elimination on March 20, 2018. Student-athletes could choose to transfer without sacrificing any period of their NCAA eligibility or remain at EMU and continue to receive their athletic and academic scholarship aid. (Doc. 13-3 at PageID 180).

At that time, the softball team had seventeen members. (Doc. 13-3 at PageID 178). Four members exhausted their NCAA eligibility after the spring 2018 season and at least one is transferring. Id. Five, including plaintiff Chretien, indicated an intent to return to EMU. Id.

The tennis team had eight members in the spring of 2018, five of whom have exhausted their NCAA eligibility. (Doc. 13-3 at PageID 178). Two members, including plaintiff Mayerova, indicated an intent to return to EMU. Id.

All incoming student-athletes who had signed National Letters of Intent (NLI) with EMU for 2018-2019 were also notified of EMU's decision on March 20, 2018. (Doc. 13-3 at PageID 177-78). They were apprised of the same options of transferring or attending EMU with their scholarships. Id. At least five of the seven prospective women's softball players signed an NLI or committed to another school. Id. At least two of the three prospective women's tennis players signed an NLI or committed to another school. Id.

Defendants claim there are currently not enough student-athletes to field a viable women's softball team, which typically has at least seventeen members, or a viable women's tennis team, which typically has eight to twelve members. In response, plaintiffs rely on the testimony of Chretien and former tennis coach Jason Wiseman, who claim that both sports could field teams with returning players and walk-on athletes. Chretien testified that eleven softball players, including pitchers and catchers, remain on campus, which would allow EMU to field a team. Tr. at 67. The softball season generally includes nonconference games in the fall, and conference games in the spring. Id. at 71.

Since March, EMU has taken actions to wind down the teams. Every full-time coach involved in the four eliminated teams was terminated and signed a severance agreement. The university cancelled apparel and uniform orders and gave away existing inventory, predominately to members of the 2017-2018 teams. Id. The Mid-American Conference scheduled competitions for 2018-2019 school year without the four terminated EMU teams. Defendants assert that the passage of time increases the difficulty of compiling a competition schedule for the eliminated teams. Plaintiffs rely upon Wiseman, who claims that a schedule could be created before the competitive season begins. (Doc. 34-2 at PageID 1099-1100).

LAW AND ANALYSIS

Plaintiffs contend that the elimination of the women's tennis and softball teams violates Title IX and the Equal Protection Clause. Relying upon their Title IX claim at this stage, Plaintiffs seek an injunction requiring EMU to reinstate the teams.

A. Legal Framework under Title IX

"Enacted in response to evidence of ‘massive, persistent patterns of discrimination against women in the academic world,’ " Title IX prohibits gender discrimination by educational institutions that receive federal funding. Equity in Athletics, Inc. v. Dept. of Educ., 504 F.Supp.2d 88, 94 (W.D. Va. 2007) ( Equity in Athletics I ), aff'd 291 Fed. Appx. 517 (4th Cir. 2008) ( Equity in Athletics II ) (citation omitted). Section 901 of the statute provides,

No 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). EMU is a public university that receives federal funding and is therefore subject to Title IX.

Under § 902 of the statute, the Department of Education is authorized to issue regulations effectuating the provisions of Title IX. 20 U.S.C. § 1682. See Equity in Athletics I , 504 F.Supp.2d at 95-98 (detailing history of Title IX and accompanying regulations). Title IX regulations regarding athletics provide that "[n]o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis." 34 C.F.R. § 106.41(a). The regulations further provide that "[a] recipient which operates or sponsors interscholastic, intercollegiate, club or intramural...