Ohlensehlen v. Univ. of Iowa

• Decision Date: 24 December 2020
• Docket Number: Case No. 3:20-cv-00080-SMR-SBJ
• Citation: 509 F.Supp.3d 1085
• Parties: Sage OHLENSEHLEN, Christina Kaufman, Alexa Puccini, Kelsey Drake, Miranda Vermeer, and Abbie Lyman, Plaintiffs, v. The UNIVERSITY OF IOWA, Bruce Harreld, in his official capacity as President of the University of Iowa, and Gary Barta, in his official capacity as Director of the Department of Athletics at the University of Iowa, Defendants.
• Court: U.S. District Court — Southern District of Iowa

509 F.Supp.3d 1085

Sage OHLENSEHLEN, Christina Kaufman, Alexa Puccini, Kelsey Drake, Miranda Vermeer, and Abbie Lyman, Plaintiffs,
v.
The UNIVERSITY OF IOWA, Bruce Harreld, in his official capacity as President of the University of Iowa, and Gary Barta, in his official capacity as Director of the Department of Athletics at the University of Iowa, Defendants.

Case No. 3:20-cv-00080-SMR-SBJ

United States District Court, S.D. Iowa, Davenport Division.

Signed December 24, 2020

James C. Larew, Larew Law Office, Iowa City, IA, for Plaintiffs.

Kayla Louise Burkhiser Reynolds, Ryan Patrick Sheahan, Samuel P. Langholz, Jeffrey S. Thompson, Attorney General of Iowa, Des Moines, IA, for Defendant The University of Iowa.

Kayla Louise Burkhiser Reynolds, Samuel P. Langholz, Jeffrey S. Thompson, Attorney General of Iowa, Des Moines, IA, for Defendants Bruce Harreld, Gary Barta.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

STEPHANIE M. ROSE, JUDGE

509 F.Supp.3d 1088

This lawsuit stems from the University of Iowa's August 21, 2020 decision to eliminate women's swimming and diving as a varsity intercollegiate sport for the 2021–22 academic year. In response, Plaintiffs Sage Ohlensehlen, Christina Kaufman, Alexa Puccini, Kelsey Drake, Miranda Vermeer, and Abbie Lyman ("Plaintiffs") filed this class action lawsuit against the University of Iowa (the "University"), President Bruce Harreld, and Athletic Director Gary Barta (collectively, the "Defendants"), alleging that the University fails to provide equal participation, equal treatment, and equal scholarship opportunities for female athletes as it is required under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"). They request a preliminary court order prohibiting Defendants from eliminating the women's swimming and diving team, or any other women's intercollegiate team, to preserve the intercollegiate athletic opportunities for women at the University of Iowa until they can prove their case at trial.

Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction on December 3, 2020. [ECF No. 12]; see Fed. R. Civ. P. 65. On December 4, 2020, the Court denied the request for emergency injunctive relief but ordered that the matter proceed on an expedited basis. [ECF No. 13]. The Court has reviewed the parties’ written briefs, [ECF Nos. 12-1; 20; 29], as well as the affidavits and documentary evidence submitted for and against the motion, [ECF Nos. 12-2; 20-1; 29-1; 32; 33; 34; 39; 41]. A hearing was held on December 18 and 22, 2020, where the Court received additional testimony and heard oral argument on the matter. For the reasons detailed below, Plaintiffs’ Motion for Preliminary Injunction is GRANTED.

I. TITLE IX

Title IX of the Education Amendments of 1972 requires 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). Though the statute does not explicitly mention intercollegiate athletics, it has long been interpreted to apply to all aspects of an institution's operations, including athletic programs. Horner v. Ky. High Sch. Athletic Ass'n , 43 F.3d 265, 271–72 (6th Cir. 1994) (citing 20 U.S.C. § 1687(2)(A) ). Regulations promulgated by the agency that has now become the Department of Education provide, in part:

(a) General. No 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.

...

(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors:

(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;

509 F.Supp.3d 1089

(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. In addition, the "failure to provide necessary funds for teams for one sex" is a relevant consideration "in assessing equality of opportunity for members of each sex." Id. Plaintiffs’ motion concerns the first factor: effective accommodation.

Interpretive guidance from the Department of Education's Office of Civil Rights ("OCR") requires a university's athletic program to meet one of three standards to show that the institution is effectively accommodating the interests and abilities of members of both sexes in compliance with Title IX:

(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.

44 Fed. Reg. 71413, 71418 (December 11, 1979) ("OCR Policy Interpretation" or the "Three-Part Test"). In a 1996 clarification memorandum, OCR elaborated on its interpretation of Title IX and the Three-Part Test:

[T]he three-part test furnishes an institution with three individual avenues to choose from when determining how it will provide individuals of each sex with nondiscriminatory opportunities to participate in intercollegiate athletics. If an institution has met any part of the three-part test, ... the institution is meeting this requirement.

Department of Education, Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Jan. 16, 1996) ("1996 Interpretive Guidance").¹ In short, Prong One of the Three-Part Test affords an institution of higher education a "safe harbor" for establishing compliance with Title IX. Id. Prongs Two and Three "allow a university lacking ‘substantially proportionate’ athletic participation opportunities to remain in compliance by demonstrating ‘an ongoing effort to meet the needs of the underrepresented gender’ or where the university can demonstrate it has fully and effectively accommodated the interests and abilities of the underrepresented sex."

509 F.Supp.3d 1090

Biediger v. Quinnipiac Univ. , 616 F. Supp. 2d 277, 294 (D. Conn. 2009) (citation omitted); see Cohen v. Brown Univ. , 991 F.2d 888, 898 (1st Cir. 1993) ( Cohen II ) ("The second and third parts of the accommodation test recognize that there are circumstances under which, as a practical matter, something short of this proportionality is a satisfactory proxy for gender balance.").

II. FACTUAL BACKGROUND²

The University of Iowa is one of three public institutions of higher education in the State of Iowa. Like most institutions of higher education, it receives federal funding in pursuit of its educational mission. And for the past ten years, it has demonstrated a general trend of increasing the percentage of undergraduate students who are women. Currently, the University offers twenty-four intercollegiate athletic programs; thirteen of these are women's teams and eleven are men's teams.

Under the Equity in Athletics Disclosure Act ("EADA"), the University of Iowa (along with every other university receiving federal funding) is required to submit a report to the United States Department of Education detailing (among other things) the total number of full-time male and female undergraduate students enrolled at the university, the varsity intercollegiate athletic teams it sponsors, and the total number of participants on each team measured at the date of the team's first competition. 20 U.S.C. § 1092(g)(1)(A)–(B)(i) ; see also 34 C.F.R. § 668.47.³ This data is eventually made accessible to the public by the Department of Education. The following chart produced by Plaintiffs’ expert—Dr. Donna Lopiano, Ph.D.—summarizes the student enrollment and athletic participation statistics as reported by the University of Iowa:

Survey Year	Male Under Grad	Percent Male Under Grad	Female Under Grad	Percent Female Under Grad	Total Under Grads	Total Male Athletes	PercentMale Athletes	Total Female Athletes	Percent Female Athletes	Total Athletes	Female Particip. Gap - # athletes to be added*	Percent Shortfall Female Opport.
2003-04	8196	46.1%	9578	53.9%	17774	407	53.2%	358	46.8%	765	118	-7.1%
2004-05	8201	45.9%	9678	54.1%	17879	405	55.9%	319	44.1%	724	159	-10.1%
2005-06	8485	46.6%	9709	53.4%	18194	429	57.8%	313	42.2%	742	178	-11.2%
2006-07	9541	47.0%	10759	53.0%	20300	395	54.8%	326	45.2%	721	119	-7.8%
2007-08	10035	48.0%	10872	52.0%	20907	404	56.7%	308	43.3%	712	130	-8.7%
2008-09	9063	48.9%	9478	51.1%	18541	431	55.4%	347	44.6%	778	104	-6.5%
2009-10	8963	48.9%	9356	51.1%	18319	387	51.9%	359	48.1%	746	45	-2.9%
2010-11	9119	48.3%	9776	51.7%	18895	380	49.3%	391	50.7%	771	16	-1.0%
2011-12	9282	48.4%	9876	51.6%	19158	400	49.6%	406	50.4%	806	20	-1.2%
2012-13	9419	48.4%	10030	51.6%	19449	409	49.6%	415	50.4%	824	21	-1.2%
2013-14	9289	48.1%	10012	51.9%	19301	419	52.2%	384	4

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