Roberts v. Colorado State Bd. of Agriculture

• Decision Date: 07 July 1993
• Docket Number: 93-1086,Nos. 93-1052,s. 93-1052
• Citation: Roberts v. Colorado State Bd. of Agriculture, 998 F.2d 824 (10th Cir. 1993)
• Parties: 84 Ed. Law Rep. 650 Jennifer ROBERTS; Julie Osborne; Janet Brumbelow; Laura Bielak; Sara Stout; Amy Recouper; Jennifer Jacobs; Malia Kuenzli; Stacie Stafford; Heather Nakasone; Kim Johnson; Aimee Rice; Lisa Mize, Plaintiffs-Appellees, v. COLORADO STATE BOARD OF AGRICULTURE, in its capacity as the entity charged with the general control and supervision of Colorado State University, Defendant-Appellant. Colorado State University, Defendant. Jennifer ROBERTS; Julie Osborne; Janet Brumbelow; Laura Bielak; Sara Stout; Amy Recouper; Jennifer Jacobs; Malia Kuenzli; Stacie Stafford; Heather Nakasone; Kim Johnson; Aimee Rice; Lisa Mize, Plaintiffs-Appellees, v. COLORADO STATE BOARD OF AGRICULTURE, in its capacity as the entity charged with the general control and supervision of Colorado State University, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 824

998 F.2d 824

84 Ed. Law Rep. 650

Jennifer ROBERTS; Julie Osborne; Janet Brumbelow; Laura

Bielak; Sara Stout; Amy Recouper; Jennifer Jacobs; Malia

Kuenzli; Stacie Stafford; Heather Nakasone; Kim Johnson;

Aimee Rice; Lisa Mize, Plaintiffs-Appellees, v. COLORADO STATE BOARD OF AGRICULTURE, in its capacity as the

entity charged with the general control and

supervision of Colorado State

University, Defendant-Appellant.

Colorado State University, Defendant.

Jennifer ROBERTS; Julie Osborne; Janet Brumbelow; Laura

Bielak; Sara Stout; Amy Recouper; Jennifer Jacobs; Malia

Kuenzli; Stacie Stafford; Heather Nakasone; Kim Johnson;

Aimee Rice; Lisa Mize, Plaintiffs-Appellees, v. COLORADO STATE BOARD OF AGRICULTURE, in its capacity as the

entity charged with the general control and

supervision of Colorado State

University, Defendant-Appellant.

Nos. 93-1052, 93-1086.

United States Court of Appeals Tenth Circuit.

July 7, 1993.

Timothy M. Tymkovich, Sol. Gen. (Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Paul Farley, Deputy Atty. Gen., Antony B. Dyl, First Asst. Atty. Gen., and William E. Thro, Asst. Atty. Gen., with him on the briefs), State of Colo., Denver, CO, for defendant-appellant.

John M. Kobayashi (Pamela A. Gagel and Karen E. Robertson, also of Kobayashi & Associates, Denver, CO, and Ellen J. Vargyas, National Women's Law Center, Washington, DC, with him on the brief), for plaintiffs-appellees.

Martin D. Schneiderman, Linda S. Stein, and Holly K. Kulka of Steptoe & Johnson, and Arthur H. Bryant of Trial Lawyers for Public Justice, Washington, DC, filed an amicus curiae brief on behalf of the Trial Lawyers for Public Justice and the National Ass'n for Girls and Women in Sport.

Before McKAY, Chief Judge, LOGAN and ANDERSON, Circuit Judges.

LOGAN, Circuit Judge.

The Colorado State Board of Agriculture (SBA or defendant) ¹ appeals the decision of the district court finding that it violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and ordering it to reinstate the women's fast pitch softball team at Colorado State University (CSU) with all of the incidental benefits of a varsity team.

Plaintiffs, CSU students and former members of the fast pitch softball team, brought suit in their individual capacities ² against SBA and CSU in June 1992 after CSU announced that it was discontinuing the varsity fast pitch softball program. In February of this year the district court found that SBA and CSU had violated Title IX, and issued a permanent injunction reinstating the softball program. Approximately three weeks later, the district court held a status conference and, in the face of apparent foot-dragging by defendant, amplified its earlier orders to require defendant to hire a coach promptly, recruit new members for the team, and organize a fall season. This court denied a motion for a stay but expedited the appeal.

Plaintiffs first contest our jurisdiction to hear these appeals. On the merits, defendant contends that the district court erred in finding a Title IX violation. Defendant also maintains that even if the verdict was correct, the district court abused its discretion when it ordered reinstatement of the softball team and required defendant to follow specific directions in effecting that reinstatement rather than affording defendant the opportunity to present a plan that would bring it into compliance with Title IX.

We review a district court's interpretations of law de novo, Eastman Kodak Co. v. Westway Motor Freight, 949 F.2d 317, 319 (10th Cir.1991), and its findings of fact for clear error. Mid-America Pipeline v. Lario Enters., 942 F.2d 1519, 1524 (10th Cir.1991). We review a district court's choice of equitable remedies for abuse of discretion. Keyes v. School Dist. No. 1, 895 F.2d 659, 665 (10th Cir.1990), cert. denied, 498 U.S. 1082, 111 S.Ct. 951, 112 L.Ed.2d 1040 (1991).

I

We consider first the challenges to our jurisdiction over these appeals. Plaintiffs maintain that because defendant failed to name CSU as a party in its notice of appeal, and because parties seeking appellate review must join all of their co-plaintiffs or co-defendants, we must dismiss this appeal. There is no substance to plaintiffs' argument that SBA cannot appeal the district court's decision without joining CSU as its co-appellant. This archaic practice of summons and severance was abolished by original Civil Rule 74 in 1937, see 9 James W. Moore et al., Moore's Federal Practice p 203.27 (1993), and was "assumed to be sufficiently obsolete as no longer to require pointed abolition" when the Federal Rules of Appellate Procedure were adopted. Fed.R.App.P. 3 advisory committee's note (1967 adoption).

CSU, not having been named in the notice of appeal, is not a party to the appeal. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108 S.Ct. 2405, 2407, 101 L.Ed.2d 285 (1988). The real question, however is whether SBA, which is named, is the proper party appellant to require us to reach the merits of the issues raised. Plaintiffs argue that because CSU has not appealed, the district court's order is final and enforceable against it, and SBA's appeal is irrelevant. In light of the statutory scheme creating SBA and CSU, however, CSU is powerless to comply with the district court's order on its own, and the relief plaintiffs seek may only be obtained against SBA. The Colorado legislature established CSU and SBA as separate entities, Colo.Rev.Stat. §§ 23-30-101, 23-31-101. While SBA was constituted as "a body corporate, capable in law of suing and being sued," id. § 23-30-102, the statutes and constitutional provisions pertaining to CSU contain no similar grant. See id. §§ 23-31-101 to -136; Colo. Const. art. VIII, § 5(1). Furthermore, although CSU maintains control over certain internal institutional policies, see, e.g., Colo.Rev.Stat. § 23-31-104 (faculty and board together determine curriculum); id. § 23-31-114 (faculty establishes rules of governance and discipline), SBA has general control and supervisory power including "power to adopt ... regulations ... to secure the successful operation of the university," id. § 23-31-108, hiring authority, id. § 23-31-109, and complete financial control over CSU, id. § 23-31-120; Colo. Const. art. VIII, § 5(2); see also Lewis v. State Bd. of Agriculture, 138 Colo. 540, 335 P.2d 546, 550 (1959). Under this scheme, even if CSU were capable of being sued, any adverse verdict or remedial order entered against CSU concerning hiring or funding would have to operate against SBA. Thus, CSU was an unnecessary party to the suit to begin with, and we see no legal impediment to reaching the merits with only SBA as appellant.

Plaintiffs also dispute SBA's right to appeal separately the measures ordered at the March 1993 status conference. Defendant counters with an argument that because it had appealed the injunctive order the district court was divested of jurisdiction to make any change in the injunction. We are satisfied that we have jurisdiction to review the measures ordered at the status conference either through defendant's appeal of the original jurisdiction order or its separate appeal of the specific obligations imposed at the March hearing. The district court refused a stay of the injunction, and this court also refused a stay pending appeal. The district court's injunction required it to supervise a continuing course of conduct. Absent a stay "an appeal from the supervisory order does not divest the district court of jurisdiction to continue its supervision." Hoffman v. Beer Drivers & Salesmen Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir.1976). See also NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir.1987). Indeed, Fed.R.App.P. 8(a) expressly recognizes this continuing power of a district court as it requires an application for an order "modifying ... an injunction during the pendency of an appeal" to be made in the first instance to the district court. See also Fed.R.Civ.P. 62(c) (district court may modify injunction during pendency of an appeal).

In light of the district court's continuing authority, if the specific directives imposed at the March status conference amount to "modifying" the injunction, they are subject to appeal under the express terms of 28 U.S.C. § 1292(a)(1). If they merely implement the original injunctive order or "clarify" it, they are not separately appealable. See Motorola, Inc. v. Computer Displays Int'l, 739 F.2d 1149, 1155 (7th Cir.1984) (An order is a clarification if it "does not change the parties' original [legal] relationship, but merely restates that relationship in new terms."); Mikel v. Gourley, 951 F.2d 166, 169 (8th Cir.1991); Sierra Club v. Marsh, 907 F.2d 210, 212-13 (1st Cir.1990). In that event, however, since the injunction itself is properly before us, we see no difficulty in reviewing the specific requirements--to hire a coach, recruit players, and schedule a fall season--that the district court imposed on defendant.

II

Defendant maintains that, as a matter of law, it did not violate Title IX. Title IX provides that: "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). Since 1988, Title IX has applied to recipients of federal funds in all of their operations. Id. § 1687. The statute delegated to the Secretary of Health, Education and Welfare (now the Secretary of Education) ³ the responsibility to promulgate regulations implementing Title IX, including specifically "intercollegiate athletic activities." Pub.L. No. 93-380, § 844, 88 Stat. 484, 612 (1974). Title 34, § 106.41, of the Code of Federal Regulations applies Title IX to college athletics.

A

This controversy concerns one subpart of the regulations implementing Title IX. 34 C.F.R. §...