Portz v. St. Cloud State Univ.

• Decision Date: 25 July 2016
• Docket Number: Civil No. 16-1115 (JRT/LIB)
• Citation: 196 F.Supp.3d 963
• Parties: Alexie PORTZ, Jill Kedrowski, Abigail Kantor, Marilia Roque Diversi, and Fernanda Quintino Dos Santos, individually and on behalf of all those similarly situated, Plaintiffs, v. ST. CLOUD STATE UNIVERSITY and Minnesota State Colleges and Universities, Defendants.
• Court: U.S. District Court — District of Minnesota

196 F.Supp.3d 963

Alexie PORTZ, Jill Kedrowski, Abigail Kantor, Marilia Roque Diversi, and Fernanda Quintino Dos Santos, individually and on behalf of all those similarly situated, Plaintiffs,

v.ST. CLOUD STATE UNIVERSITY and Minnesota State Colleges and Universities, Defendants.

Civil No. 16-1115 (JRT/LIB)

United States District Court, D. Minnesota.

Signed July 25, 2016

Donald Chance Mark, Jr. and Andrew T. James, FAFINSKI MARK & JOHNSON, P.A., 775 Prairie Center Drive, Suite 400, Eden Prairie, MN 55344, for plaintiffs.

Kevin A. Finnerty, Assistant Attorney General, MINNESOTA ATTORNEY GENERAL'S OFFICE, 445 Minnesota Street, Suite 900, St. Paul, MN 55101, for defendants.

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR A PRELIMNINARY INJUNCTION

JOHN R. TUNHEIM, Chief Judge

Plaintiffs in this case are five student-athletes on the St. Cloud State University ("SCSU") women's tennis team. About four months ago, SCSU announced that it intended to eliminate several of its intercollegiate sports teams, including the women's tennis team, to address declines in enrollment and tuition revenue. Plaintiffs filed this case against SCSU, alleging that the elimination of the women's tennis team, if carried to fruition, would result in a violation of Title IX as well as the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs now move for a preliminary injunction to preserve the status quo and at least prevent SCSU from eliminating the team until after the case is over.

At this stage of the case, the Court is asked to determine whether Plaintiffs have a fair chance of winning their claims. Title IX requires equal treatment of the sexes, and here, that equal treatment mandate is interpreted to require SCSU to offer a female-to-male ratio of intercollegiate athletics participation opportunities that is "substantially proportionate" to the same ratio in the student body. Because SCSU's student body is almost exactly 50 percent male and 50 percent female, the ratio in the SCSU athletics program, after SCSU enacts its cuts, must also be close to 50-50 to comply with Title IX. Plaintiffs contend that SCSU will not meet that mark, while SCSU argues the opposite, that it will have 254 women participants and 252 men participants.

But Plaintiffs have highlighted reasons to wonder whether SCSU will be able to achieve the level of female participation it desires. While SCSU states that it will add 26 women to its track team next year, Plaintiffs have put forward some evidence that student demand for the women's track team is already saturated. While SCSU states that 52 of its female participants will be two-sport athletes, SCSU arguably may be impermissibly double-counting some of its women as occupying two participation opportunities when in reality only one opportunity exists. And while SCSU argues that it can reach its roster-size goals, Plaintiffs have put forward some evidence that women's participation last year may have been lower than what SCSU has stated, suggesting again that SCSU's goals may be too ambitious because it will have to recruit even more women than anticipated.

Of course, SCSU's reorganization plan may very well be Title IX compliant. Its expected roster sizes may prove to be accurate and its counting of athletes entirely correct. But for the limited purposes of this motion for a preliminary injunction, the Court finds that Plaintiffs have demonstrated that they have a fair chance of succeeding on the merits of their Title IX claim, and all of the other preliminary injunction factors—irreparable harm, the balance of the hardship, and the public interest—weigh in their favor too. The Court will therefore issue a preliminary injunction preventing SCSU from eliminating the women's tennis team while this case is pending.

BACKGROUND

I. FACTUAL BACKGROUND

Defendant SCSU is a public university of higher education located in St. Cloud, Minnesota. SCSU is a member of Defendant Minnesota State Colleges and Universities' ("MNSCU's") system of colleges.¹ SCSU and MNSCU each receive federal funding. SCSU's student enrollment is almost precisely one-half male and one-half female.

SCSU, like many other institutions of higher education, has witnessed declining revenue and enrollment in recent years. SCSU's enrollment peaked in 2011 at 22,024 total students, or 19,186 if high school students are not included in the tally. (Aff. of Lisa Foss ("Foss Aff.") ¶ 4, May 11, 2016, Docket No. 26.) By 2016, total enrollment was down to 18,859, or 14,990 excluding high school students. (Id. ¶ 5.) SCSU's revenues from tuition fell by approximately $8.6 million from 2011 to 2016. (Id. ¶ 6.)

SCSU, like many other institutions of higher education, has an intercollegiate athletics department and is a member of the National Collegiate Athletic Association ("NCAA"). For the 2015-16 academic year, SCSU offered 23 varsity sports. Its men's and women's hockey teams play at the NCAA Division I level, and the remaining SCSU sports teams compete in Division II. In recent years, SCSU has had a significantly higher number of male sport participants than women participants—men have had anywhere from 116 to 179 more participants in recent years—despite the nearly equal sex ratio in the undergraduate student body. (Compl. ¶¶ 68-72, Apr. 28, 2016, Docket No. 1.)

To address the declines in revenue and enrollment, SCSU's president, in December 2015, asked SCSU athletics director Heather Weems to come up with a "cost containment strategy" for the athletics department. (Aff. of Heather Weems ("Weems Aff.") ¶ 10, May 11, 2016, Docket No. 25.) Weems balanced what she understood to be the university's desire to offer competitive sports programming with its need to reduce costs and comply with Title IX. (Id. ¶ 10-13.) Weems ultimately arrived at a plan that included the elimination of several of the school's sports teams: the men's and women's tennis teams, the women's Nordic skiing team, the men's cross-country running team, and the men's track team. (Id. ¶ 13.) Weems's plan also called for a number of teams—mostly men's teams—to reduce their number of participants, and for some of the women's teams to increase their numbers. (Id. ¶ 16.) Weems created the table below to show how SCSU would alter its sports programming in next year's school year, 2016-17, from last year's school year, 2015-16:

(Weems Aff., Ex. 5.) Notably, despite cutting two women's teams in the entirety, Weems proposes that SCSU will actually increase the overall number of women participating in the SCSU athletics department by eight: there were 246 women participating in 2015-16, according to Weems, but Weems states that number will rise to 254 in 2016-17. (Id. ) Weems proposes that SCSU will accomplish this increase—despite the cuts—by growing the roster size for several of the existing women's teams. Weems proposes to add one woman to the basketball team, four women to the cross-country team, one to the hockey team, and most notably, 11 women to the indoor track team and 15 more to the outdoor track team. (Id. ) Weems also anticipates a decline of seven participants across the women's golf, soccer, softball, and volleyball teams, in addition to the 17 participants that will be lost due to the elimination of the women's tennis and Nordic skiing teams. (Id. ) Thus, Weems anticipates an increase of 32 female participants to be offset by a decline of 24 participants to arrive at her predicted total increase of eight. Weems's roster engineering will bring the total number of female participants to 254, and the total number of male participants to 252, for a near equal female-to-male ratio—just like the student body. (Id. )

Numbers on SCSU's website, however, differ in some ways from the numbers Weems gives. For example, the SCSU women's volleyball roster for 2015-16 lists only 15 women, while Weems's chart states the number was 20. See 2015 Women's Volleyball Roster , St. Cloud State Huskies, http://www.scsuhuskies.com/roster.aspx?roster=93&path=volleyball (last visited July 7, 2016).² Thus, Weems's proposed 2016-17 roster size of 18 for the women's volleyball team would require adding three women, not cutting two. Similarly, the online roster sizes of the 2015-16 women's softball and basketball teams are one short of what Weems states. See 2015 Softball Roster , St. Cloud State Huskies, http://www.scsuhuskies.com/roster.aspx?roster=86&path=softball (last visited July 7, 2016).

Weems's 2015-16 numbers for the women's track team are debatable too. Weems states that 27 women participated in indoor track last year and 23 women participated in outdoor track, for a total of 50 female track participants. But the website lists only one team for women's track and field, not two, and provides only one roster with 28 women on it. 2015-16 Women's Track & Field Roster , St. Cloud State Huskies, http://www.scsuhuskies.com/roster.aspx?path=wtrack (last visited July 7, 2016).

One could quibble with Weems's 2016-17 numbers too. For example, Weems states that SCSU will increase—in one year—the women's indoor and outdoor track teams by 11 and 15 participants, respectively—an increase of approximately 40% and 65%, respectively. But there are indications that student demand might not accommodate that increase. SCSU has, for example, already in the past resorted to advertising the women's track team on campus bulletin boards, inviting women to join. (Second Decl. of Donald Chance Mark, Jr. ("Mark Decl.") ¶ 30, May 18, 2016, Docket No. 35; id. , Ex. CC ("OPEN TRYOUTS!"; "TRACK & FIELD"; "ALL EVENTS NEEDED").)

On March 2, 2016, SCSU publicly announced that it planned to enact Weems's proposed cuts.

II. PLAINTIFFS

Plaintiff Fernanda Quintino dos Santos is a 19-year-old freshman at SCSU. (Decl. of Fernanda Quintin dos Santos ¶ 1, Apr. 29, 2016, Docket No. 13.) She was a member of SCSU's varsity women's tennis team during her freshman year and has three more years of athletic eligibility remaining. (Id. ¶ 2.) She attends SCSU on "a...