Roberts v. Colorado State University, Civ. A. No. 92-Z-1310.

• Citation: 814 F. Supp. 1507
• Decision Date: 18 February 1993
• Docket Number: Civ. A. No. 92-Z-1310.
• Parties: Jennifer ROBERTS, Julie Osborne, Janet Brumbelow, Laura Bielak, Sara Stout, Amy Recouper, Jennifer Jacobs, Malia Kuenzli, Stacie Stafford, Heather Nakasone, Kim Johnson, Aimee Rice, and Lisa Mize, Plaintiffs, v. COLORADO STATE UNIVERSITY, Colorado State Board of Agriculture, in its capacity as the entity charged with the general control and supervision of Colorado State University, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

814 F. Supp. 1507

Jennifer ROBERTS, Julie Osborne, Janet Brumbelow, Laura Bielak, Sara Stout, Amy Recouper, Jennifer Jacobs, Malia Kuenzli, Stacie Stafford, Heather Nakasone, Kim Johnson, Aimee Rice, and Lisa Mize, Plaintiffs, v. COLORADO STATE UNIVERSITY, Colorado State Board of Agriculture, in its capacity as the entity charged with the general control and supervision of Colorado State University, Defendants.

Civ. A. No. 92-Z-1310.

United States District Court, D. Colorado.

February 18, 1993.

COPYRIGHT MATERIAL OMITTED

John M. Kobayashi, Pamela A. Gagel, Karen E. Robertson, Kobayashi & Associates, P.C., Denver, CO, Ellen J. Vargyas, National Women's Law Center, Washington, DC, for plaintiffs.

William E. Thro, Michael Stuart Williams, Michael S. Schreiner, Lee R. Combs, Office of the Atty. Gen., Denver, CO, Lee R. Combs, Associate Gen. Counsel, Denver, CO, for defendants.

OPINION AND ORDER

WEINSHIENK, District Judge.

Procedural and Factual Background

Plaintiffs are former members of the Colorado State University (CSU) women's varsity softball team which was terminated on June 1, 1992. Plaintiffs seek reinstatement of the softball team and damages. A hearing on plaintiffs' Complaint For Injunctive Relief was held on July 17, 1992. At that time, the Court denied plaintiffs' Motion For Injunctive Relief due to plaintiffs' inability to demonstrate a substantial likelihood of success on the merits. Lundgrin v. Claytor, 619 F.2d 61 (10th Cir.1980). At the conclusion of this hearing, the parties stipulated to a stay of the sale of the softball team's equipment, plaintiffs' continued receipt of their softball scholarships without work requirements for the 1992-1993 school year, and expedited discovery. A status conference was held on October 26, 1992, at which the parties agreed to bifurcate the violation and damages phases of the trial. The case is set for a two day trial to Court on the issue of damages on Thursday, March 25, 1993.

A trial to court concerning plaintiffs' request for a permanent injunction reinstating the women's intercollegiate softball program at CSU was held on November 19, 1992, continuing on November 20, 23, and 24, 1992. After careful consideration, the Court has made findings of fact and conclusions of law based upon the evidence presented during the trial and the pre-trial briefs submitted by the parties.

Regulatory Framework of Title IX

The central question in this case is whether defendants' termination of the women's softball team either caused a violation of Title IX or was the perpetuation of an already existing violation by defendants. This and other issues presented in the instant case necessitate a brief analysis of the regulatory framework of Title IX. Title IX, which is codified at 20 U.S.C. § 1681, became effective on July 1, 1972, and 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." Defendants concede that Colorado State University is an educational institution receiving federal financial assistance, and the Court determines that CSU's athletic department is subject to the provisions of Title IX.

The regulations interpreting the application of Title IX to athletic programs became effective on July 21, 1975. These regulations require that "a recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes." 34 C.F.R. § 106.41(c). In determining whether equal opportunities are available, the Director of the Office of Civil Rights of the Department of Education (OCR) must consider, among other factors, "whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes." 34 C.F.R. § 106.41(c)(1).

A Policy Interpretation further developing the meaning of "equal opportunity" in intercollegiate athletics was issued in 1979. See Policy Interpretation, 44 Fed.Reg. 71413 (Dec. 11, 1979). The express purpose of the Title IX Policy Interpretation is to explain the factors and standards which the Department of Education will consider in determining whether an institution's intercollegiate athletics program complies with the law and governing regulations. 44 Fed.Reg. 71413. The policy interpretation is divided into three areas of inquiry: Athletic Financial Assistance (Scholarships), 34 C.F.R. § 106.37(c); Equivalence in Other Athletic Benefits and Opportunities, 34 C.F.R. § 106.41(c)(2)-(10); and Effective Accommodation of Student Interests And Abilities, 34 C.F.R. § 106.41(c)(1). 44 Fed.Reg. at 71414.

In April of 1990, the OCR of the Department of Education issued the Title IX Athletics Investigator's Manual to assist OCR personnel in conducting athletic investigations. Defendants' Exhibit A. According to the Investigator's Manual, "the intercollegiate athletics Policy Interpretation requires that OCR use an overall approach and review the total athletics program for intercollegiate athletics investigations." Id. at 7. However, the Investigator's Manual also reiterates the three major areas of investigation established in the Policy Interpretation and states that "an investigation may be limited to less than all three of these major areas where unique circumstances justify limiting a particular investigation to one or two of these major areas." Id.

Plaintiffs' allegations of discrimination under Title IX are narrowly stated under the third prong of the Policy Interpretation: Effective Accommodation of Student Interests And Abilities, 34 C.F.R. § 106.41(c)(1). Although defendants argue that the language in the Investigator's Manual requires that plaintiffs demonstrate an overall violation of either 34 C.F.R. § 106.37(c) or 34 C.F.R. § 106.41(c)(1)-(10) in order to sustain a claim of discrimination under Title IX, the Court is satisfied that the regulations and Policy Interpretation allow for a showing of violation under 34 C.F.R. § 106.41(c)(1) only. The decisions in Favia v. Indiana University Of Pennsylvania, 812 F.Supp. 578 (W.D.Pa. 1993), and Cohen v. Brown University, 809 F.Supp. 978 (D.R.I.1992), support this view. In Favia, female students sought reinstatement of two women's teams eliminated by the defendant university's budget reduction efforts. Although the Favia Court mentioned disparities in athletic scholarships in the opinion, the Court's ruling in favor of plaintiffs was based largely upon an analysis made under 34 C.F.R. § 106.41(c)(1). Favia, 812 F.Supp. at 584. Plaintiffs in the Cohen case challenged Brown University's demotion of two women's teams from varsity to club status. In granting plaintiffs' motion for a preliminary injunction, the Cohen Court specifically held that a finding of a Title IX violation may be limited solely to 34 C.F.R. § 106.41(c)(1). Cohen, 809 F.Supp. at 989.

Although minor inconsistencies do exist between the Policy Interpretation and the Investigator's Manual, an evaluation of CSU's entire athletic program is neither required nor necessary to the resolution of the issues presented in this case. After examining both the regulatory framework of Title IX and the language in the Favia and Cohen cases, the Court is convinced that a violation of Title IX may be shown by proof of a substantial violation in any one of the three major areas of investigation set out in the Policy Interpretation. Thus, the Court's findings of fact and conclusions of law will be limited to 34 C.F.R. § 106.41(c)(1), the prong regarding the effective accommodation of student interests and abilities.

The Policy Interpretation delineates three areas of inquiry which should be considered in assessing compliance with 34 C.F.R. § 106.41(c)(1):

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 interests 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 that sex have been fully and effectively accommodated by the present program.

44 Fed.Reg. at 71418. The Court will hereafter refer to these three prongs as the "Effective Accommodation" test. Plaintiffs have the burden of proving that intercollegiate level participation opportunities for male and female students are not provided in numbers substantially proportionate to their respective enrollments. Favia, 812 F.Supp. at 584. Defendants have the burden of proof as to the second and third prongs of the Effective Accommodation test. Id.; See also, Cohen, 809 F.Supp. at 992.

Findings of Fact and Conclusions of Law

1. Substantial Proportionality

At trial, defendants argued that the Court should not rely on the statistics submitted by plaintiffs for the 1980-81 and 1981-82 school years in determining whether CSU is in compliance with 34 C.F.R. § 106.41(c)(1). See Plaintiffs' Exhibit 64. All of the figures contained in Exhibit 64 were obtained from Ms. Roselyn Cutler, CSU's Title IX Coordinator, either during or after her deposition. Ms. Cutler testified at trial that the figures for the 1980-81 and 1981-82 school years were taken from the squad lists for that year. Although defendants stressed Ms. Cutler's testimony on redirect that she was unable to confirm the validity of the figures for the years in question, they failed to explain why the...