Pederson v. Louisiana State University, CV94-247-A-MI.

Citation912 F. Supp. 892
Decision Date12 January 1996
Docket NumberNo. CV94-247-A-MI.,CV94-247-A-MI.
PartiesBeth PEDERSON, et al. v. LOUISIANA STATE UNIVERSITY, et al.
CourtUnited States District Courts. 5th Circuit. Middle District of Louisiana

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Keith B. Nordyke, Nordyke & Denlinger, Baton Rouge, LA, Thomas L. Krebs, Ritchie & Rediker, P.C., Birmingham, AL, R. Lawrence Ashe, Jr., Nancy E. Ryan, Lynne H. Rambo, Paul, Hastings, Janofsky & Walker, Atlanta, GA, for plaintiff.

Gerald Michael Pharis, William Shelby McKenzie, David Mark Bienvenu, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for defendant.

OPINION

DOHERTY, District Judge.

PROCEDURAL HISTORY

Plaintiffs' initial complaint entitled "Complaint — Class Action" was filed in the Middle District of Louisiana on March 31, 1994, by Beth Pederson, Lisa Ollar and Samantha Clark, hereinafter referred to as ("Pederson" or "Pederson plaintiffs"), each individually and "on behalf of all others similarly situated," seeking "declaratory, injunctive and monetary relief" against Louisiana State University, William E. Davis, individually and in his official capacity as Chancellor of Louisiana State University, Joe Dean, individually and in his official capacity as Athletic Director of Louisiana State University, Elaine D. Abell, Clarence L. Barney, Milton C. Chapman, Elenora A. Cawthon, David Conroy, Charles V. Cusimano, Gordon E. Dore, Janice M. Foster, Jimmy A. Lalonde, Jr., Joseph Lesage, Jr., Rolfe McCollister, Jr., Roger H. Ogden, Nicholas Smith, Jr., Joseph L. Waitz, Charles S. Weems, III, John R. Williams, Milton J. Womack, each in their official capacity as members of the Board of Supervisors ("LSU"). The equitable relief requested in the complaint included an affirmative injunction by this Court ordering LSU to field an intercollegiate varsity women's fast pitch softball team in 1995 and a intercollegiate varsity women's soccer team in 1994. As the basis for their claim, plaintiffs specifically alleged interest and skill in soccer; however, none of the three asserted interest or ability in fast pitch softball or any other sport. Defendants answered on May 16, 1994, denying plaintiffs' allegations and contesting plaintiffs' standing to assert an action or class action requesting remedy as to women's fast pitch softball.

On May 16, 1994, plaintiffs filed a Motion for Preliminary Injunction, a Motion for Class Certification, and requested expedited hearing. The Motion for Preliminary Injunction sought to compel LSU to institute intercollegiate varsity soccer in the Fall of 1994 and intercollegiate varsity fast pitch softball in the Fall of 1995. Judge Parker, then presiding, denied plaintiffs' request for expedited hearing on May 20, 1994 and both motions were scheduled for hearing on June 17, 1994 in the Middle District of Louisiana. Thereafter, Judges Parker and Polozola, the two sitting judges of the Middle District, recused and the case was referred to Judge Politz, the Chief Judge of the Fifth Circuit, for reassignment. On June 28, 1994, the suit was reassigned to Judge Rebecca F. Doherty of the Western District; however, the case remains filed within the Middle District of Louisiana. This Court responded to plaintiffs' request for "expeditious" hearing on the Preliminary Injunction and class certification by holding a telephone status conference with all counsel on June 29, 1994. As a result of those discussions, the hearing for Preliminary Injunction was set for July 28 and 29, 1994 and a scheduling order was issued. During the telephone conference, both parties agreed to a bifurcated trial; damages to be tried separately from the case on the merits.1

On September 19, 1994, defendants filed a Motion for Summary Judgment, urging the dismissal of plaintiffs' Motion for Preliminary Injunction alleging plaintiffs lacked standing to seek the requested mandatory Preliminary Injunction affecting fast pitch softball.2 Defendants argued none of the named plaintiffs had desire to participate in fast pitch softball, and therefore, LSU's actions concerning fast pitch softball had no impact on those plaintiffs and accordingly plaintiffs lacked standing to ask this Court to force LSU to change its decisions concerning fast pitch softball.

After receipt of numerous memoranda both in support of and in opposition to defendants' Motion for Summary Judgment, on October 11, 19943 via telephone conference, this Court issued a preliminary ruling as to defendants' motion indicating its intent to grant defendants' motion on different grounds and to deny plaintiffs' request for Preliminary Injunction ordering LSU to act upon fast pitch softball.4 Formal written reasons were issued on October 28, 1994 dismissing plaintiffs' Motion for Preliminary Injunction.5

After denial of the Pederson preliminary injunction, Cindy and Karla Pineda sought to introduce their claims into the Pederson suit via an "intervention of right." This Court denied the request to intervene as procedurally improper as it contained new, distinct and expanded claims from those made by Pederson and invited plaintiffs' counsel to properly join the Pinedas and their new claims as party plaintiffs in the Pederson suit.6 Plaintiffs did not do so.

At a December 1, 1994 status conference,7 the Pederson plaintiffs informed the Court that their Motion for Class Certification was couched under only Federal Rules of Civil Procedure 23(b)(2), seeking certification of an injunctive class. Monetary damages were sought only by the named plaintiffs individually; plaintiffs did not seek certification of a class pursuant to Federal Rule of Civil Procedure 23(b)(3) or monetary damages for the class.8

At the December 1, 1994 conference the Court bifurcated the trial into Stage One on the equitable relief sought by plaintiffs and Stage Two on the issue of monetary damages. Stage One was set for October 10 through 27, 1995 involving those issues within the request for declaratory and/or injunctive relief as to the named plaintiffs and any class that might be certified by the Court.9 Stage Two would be heard after Stage One and would address the damage claims made by the Pederson plaintiffs.10

On January 3, 1995 Cindy and Karla Pineda filed suit in the Eastern District of Louisiana, requesting declaratory and injunctive relief against LSU and, in particular, a preliminary injunction as to fast pitch softball. Defendants moved to transfer the case to the Middle District and to consolidate the Pineda suit with the pending Pederson suit. Plaintiffs opposed the transfer of the case to the Middle District and initially opposed the proposed consolidation with the Pederson suit.11 Transfer was granted on February 22, 1995 and a Motion to Consolidate was presented to and signed by Judge Polozola on March 30, 1995.12

The Court ruled on July 5, 199513 denying the Pinedas' request for a preliminary injunction requesting: (a) institution of intercollegiate varsity fast pitch softball in the Fall of 1995, (b) requesting LSU present a plan for compliance with Title IX, and (c) freezing current expenditures and administrative support for male varsity sports at Louisiana State University. Full written reasons for the denial are contained within this Court's October 28, 1994 ruling.

On September 14, 1995, this Court issued several rulings, one Memorandum Ruling delineating the claims which remained before the Court at that juncture.14

In a separate Memorandum Ruling, this Court provisionally certified the following class.

Those female students enrolled at LSU since 1993 and any time thereafter who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU's failure to field teams in said female varsity athletics.15

This Court provisionally certified the class, giving plaintiffs an opportunity to bolster their argument and evidence that sufficient numerosity existed. The Court further granted counsel for plaintiffs thirty days from the close of testimony in Stage One to submit the additional support of their claim as to the numerosity requirement.16

Stage One was tried before this Court beginning October 10, 1995, with closing arguments held on November 8, 1995. At trial, plaintiffs' remaining claims included individual plaintiffs and class claims for declaratory and/or injunctive relief against Joe Dean and William Davis individually and in their official capacities and the Louisiana State Board of Supervisors17 based on the only remaining issue: LSU's alleged failure to effectively accommodate its female students in violation of Title IX.18 Plaintiffs asked for a variety of specific injunctive relief, the particulars of which continued to change up to and through the trial on the merits, and for a declaration that LSU was in violation of Title IX.

FACTS

LSU has provided opportunity for its male students to participate in intercollegiate varsity athletics since the inception of football and men's baseball in 1893, and men's basketball in 1908.19 Intercollegiate varsity athletic opportunity for its women athletes was provided in 1977 with the initiation of a women's sports program.20 In 1979, women's fast pitch softball was added, but was dropped following the 1982-83 season with no credible reason given. No additional sports were added for either males or females until 1993 when the decision was made to add two intercollegiate varsity women's sports in the 1995 season, fast pitch softball and soccer.21 Implementation of that decision was delayed in accordance with an agreement of the Southeastern Conference schools and requests by the Senior Women's Administrators of the Southeastern Conference. The agreement called for commencing competitive conference play in soccer in the Fall of 1995 and to begin implementation of softball in the Fall of 1996 with competitive conference play in the...

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