A federal judge from the District of North Dakota has granted North Dakota University System’s (NDUS) motion for summary judgment, dismissing a Title IX claim for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiffs Emily Becker, Calli Forsberg, Morgan Stenseth, and Maya Tellman described themselves as “would-be members” of UND’s women’s hockey program. They alleged, in a complaint against NDUS on June 16, 2022, that NDUS failed to accommodate them, pursuant to Title IX, when it eliminated the women’s ice hockey program.
They brought their claims on behalf of themselves and a putative class “of all current, prospective, and future female students who are harmed by and want to end NDUS’s sex discrimination and violation of Title IX” and “on behalf of women who wish to participate in varsity women’s ice hockey at UND, or who want to participate in varsity sports eliminated or not offered UND.”
NDUS responded with a motion to dismiss, claiming the plaintiffs lack standing because they are not students at UND, and that the complaint fails to state a claim upon which relief may be granted.
In its analysis, the court noted that to invoke subject matter jurisdiction in federal court, a plaintiff must have Article III standing. See Disability Support All. v. Heartwood Enterprises, LLC, 885 F.3d 543, 545 (8th Cir. 2018); Wolfe v. Gilmour Mfg. Co., 143 F.3d 1122, 1126 (8th Cir. 1998). “To establish Article III standing, plaintiffs must show (1) an injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) that a favorable decision will likely redress the injury.” Animal Legal Def. Fund v. Vaught, 8 F.4th 714, 718 (8th Cir. 2021).
Turning to the question of standing, the court wrote that “the real question raised through both parties’ filings is when, if ever, do ‘future’ students, or ‘would-be’ students, or former students have standing to bring a Title IX claim against a university they do not attend? NDUS’s answer is essentially, ‘Never,’ while the plaintiffs’ answer is essentially, ‘Always.’ As is often the case, after a careful review of the limited federal case law that addresses this question, the answer appears to fall somewhere in between.”
The court continued, “In Pederson v. Louisiana State University, 213 F.3d 858 (5th Cir. 2000), the Fifth Circuit Court of Appeals took on the question of ‘delineating the precise level of injury a litigant must demonstrate to establish standing to assert a claim under Title IX for ineffective accommodation.’ Id. at 870. There, three female undergraduate students (referred to as the Pederson Plaintiffs) brought a Title IX effective accommodation claim, among others, against LSU after LSU failed to field a women’s varsity soccer team. Id. at 864. The district court determined the Pederson Plaintiffs lacked standing to assert the Title IX claim because each plaintiff lacked NCAA eligibility and that no plaintiff had the ability to secure a position on the women’s varsity soccer team. Id. at 870. The Fifth Circuit, however, noted these were the wrong inquires to decide the question of standing. Instead, the Fifth Circuit drew from analogy to the United States Supreme Court’s Equal Protection jurisprudence, citing Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656, 666, 113 S. Ct. 2297, 124 L. Ed. 2d 586 (1993), ‘[A] group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The injury in fact in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.’ Id. at 871. The Fifth Circuit went on to hold ‘that to establish standing under a Title IX effective accommodation claim, a party need only demonstrate that she is ‘ready and able’ to compete for a position on the unfielded team.’ Id.”
Standard from Pederson Is a Good Start in the Instant Case
The instant court wrote that the “ready and able” standard from Pederson “is instructive and helpful in assessing standing here, but it is not the end of the inquiry because it rests on an assumption that a current student be ready and able to compete.” Recall that the Pederson plaintiffs were three undergraduate students currently enrolled at LSU. So, since Pederson, some federal courts (though mostly in the context of defining classes for class action cases) have grappled with whether future, prospective, would-be, deterred, and/or former students also have standing to bring an effective accommodation claim.
“Anders v. California State University, Fresno, reviews this line of case law quite well, though it is apparent the lines between future, and prospective, and deterred students are quite fine and poorly defined. No. 121CV00179AWIBAM, 2022 U.S. Dist. LEXIS 146775, 2022 WL 3371600, *3-4 (E.D. Cal. Aug. 16, 2022), reconsideration denied, No. 1:21-CV-179-AWI-BAM, 2022 U.S. Dist. LEXIS 212091, 2022 WL 17156145 (E.D. Cal. Nov. 22, 2022). As noted in Anders, and consistent with Pederson, enrolled students (who alleged the ready and able standard) at a certain college or university typically have standing to pursue Title IX claims. On the other hand, as to deterred students, or students who were deterred from enrolling at a certain college or university and did not enroll because of the alleged sex discrimination in athletics, standing is unlikely and has been viewed as rather questionable. 2022 U.S. Dist. LEXIS 146775, [WL] at *4 (citing Biediger v. Quinnipiac Univ., No. 3:09CV621SRU, 2010 U.S. Dist. LEXIS 50044, 2010 WL 2017773, at *5 (D. Conn. May 20, 2010).”
The court further wrote that “closer yet is the category of future students, which seems to be viewed as students that will be enrolling at a certain college or university but have not yet enrolled. See id. (citing Portz v. St. Cloud State Univ., 297 F. Supp. 3d 929, 942-43 (D. Minn. 2018)). And finally, there is the category of former students, where the Eighth Circuit Court of Appeals has held, ‘that a plaintiff lacks eligibility or is no longer a student is an adequate basis to dismiss an individual Title IX claim for injunctive relief,’ see Grandson, 272 F.3d at 574, and other federal courts have suggested that, for standing as to injunctive relief, a former student must ‘demonstrate some likelihood of return.’ See Doe 1 v. Baylor Univ., No. 6:16-CV-173-RP, 2020 U.S. Dist. LEXIS 56953, 2020 WL 1557742, at *5 (W.D. Tex. Apr. 1, 2020).”
The court then examined the specific factual allegations in the complaint as to each plaintiff. Becker and Forsberg claimed that they are North Dakota residents and play ice hockey, and that they “would” enroll at UND “if” UND offered a women’s ice hockey program.
“The allegations as to Becker and Forsberg are insufficient to demonstrate Article III standing for a Title IX claim given the case law noted above,” wrote the court.
Tellman “fairs no better,” according to the court. “Unlike Becker and Forsberg, Tellman did apply to UND in 2021 and was accepted, but ultimately never enrolled. … Like Becker and Forsberg, Tellman has not alleged any injury in fact beyond a purely hypothetical injury and she has not clearly alleged facts demonstrating the elements of standing.”
Lastly, the court found that the claim of Stenseth “presents a somewhat closer call. Stenseth is, like the other Plaintiffs, a North Dakota resident who plays ice hockey. However, she is the only plaintiff that applied to UND, was accepted, and did attend UND until October 2021 when she withdrew and stopped attending.”
But Stenseth’s allegations fail “because she is no longer a student at UND, and she has not alleged any likelihood of return. Beyond that, on its face, the complaint is fatal to her claim because the paragraph alleging facts as to her is incomplete and cuts off at the end of page three.”
In summary, the court noted that each plaintiff’s alleged injury is “‘conjectural or hypothetical’ and is therefore insufficient to confer standing. Frost v. Sioux City, Iowa, 920 F.3d 1158, 1161 (8th Cir. 2019) (quoting City of L.A. v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)); see also Grandson, 272 F.3d at 574.”
Therefore, the court concluded, “Put simply, the plaintiffs failed to allege sufficient facts to support a reasonable inference that at least one of them can satisfy the injury-in-fact element of Article III standing.”
Becker v. N.D. Univ. Sys.; D.N.D.; 2023 U.S. Dist. LEXIS 3625, Case No. 3:22-cv-100; 1/9/23
