Court Weighs Factors in Revisiting Fee Award in Title IX Case

Jun 19, 2009

A federal judge has denied a bid made by the attorneys of several student-athletes, who were victorious in a Title IX lawsuit, to reconsider his ruling regarding attorney fees.
In siding with the defendant, West Chester University of Pennsylvania, the court rejected the plaintiffs’ assertions that it “committed a clear error of law when [the court] considered the defendants’ financial circumstances in determining the proper amount of counsel fees to be awarded. We also reject the assertion that we created a manifest injustice when we reduced the lodestar figure by fifteen percent. As we view the matter, it would have created an injustice if we had not.”
The ruling on the merits of the case occurred in 2003 when a district court held that West Chester University violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. when it shuttered its women’s gymnastics program, and ordered the university to immediately reinstate the program.
Months earlier, the university had announced that it was eliminating both its women’s gymnastics and men’s lacrosse programs. In a press release announcing the decision, WCU also said that it was adding a women’s golf program, merging the program with the existing men’s golf program.
In a press release announcing the decision, Athletic Director Edward Matejkovic, Ph.D. noted that the university embarked on a 12-month review in the spring of 2001 to determine how best the university could respond to an imminent budget crisis, while satisfying Title IX. He said that the committee assigned the task created a roadmap to allow the university to continue to maintain all its programs. However, the budget crisis worsened, creating a “dire” situation.
Dr. Matejkovic explained the rationale behind adding a women’s golf program. First, the team would travel with the men’s team and would share the men’s team coaches, dramatically cutting expenses. Second, he suggested that women’s golf was rapidly eclipsing women’s gymnastics in both popularity and opportunity, influencing the university’s decision..
At the time, he also proactively sought to address any concerns about Title IX compliance. “Even though the current budget climate has caused us to make these difficult decisions,” Matejkovic said, “we must still be cognizant of the opportunities for women in our athletics program. By adding a growing sport like women’s golf, we will replace the opportunities for competition formerly held by our gymnastics team.”
Immediately upon hearing the announcement, the plaintiffs — eight members of the former West Chester University Women’s Gymnastics Team — began their attempts to have the gymnastics program reinstated. Among other things, they contacted the Department of Education’s Office for Civil Rights (OCR), filing a complaint with that office on May 3, 2003. A little more than two weeks later, the plaintiffs contacted the Trial Lawyers for Public Justice. By late June, the plaintiffs retained the Washington-based TLPJ, which sent a demand letter to WCU, explaining the plaintiffs’ position that the university had violated Title IX and suggesting that settlement talks would be in order.
On August 26, 2003, the TLPJ and the plaintiffs’ local counsel, Sharon McKee, met with WCU’s Matejkovic and other WCU administrators. The plaintiffs’ attorneys presented their case and the defendants sought time to consider the situation. After the university’s representatives failed to respond by an agreed-upon deadline, the plaintiffs sued, naming the university, Matejkovic; Madeleine Wing Adler, President of WCU; and Barbara Cleghorn, Assistant Director of Athletics for Eligibility and Compliance, as defendants. The plaintiffs sought a preliminary injunction, directing the defendants to reinstate the gymnastics program.
WCU Misses Equity Mark in Two Areas
The plaintiffs made two distinct Title IX claims related to equal treatment and equal accommodation. The court ultimately agreed with the plaintiffs’ “assertion that WCU has failed to comply with Title IX’s equal treatment requirement in the areas of coaching and recruiting appears to be correct.”
Turning to the equal accommodation argument, the court wrote that it was “satisfied that the defendants have failed to meet all three prongs of the accommodation test.” Specifically, it found that (1) women students at WCU comprise almost 61 percent of the student body but are offered less than 45 percent of the athletic opportunities; (2) the school has not demonstrated a “history and continuing practice” of expanding its women’s sports program over time because it has not added a women’s team for over a decade and then, adding insult to injury, decided to cut an existing women’s team; and (3) the school cannot claim that it has fully satisfied all existing female interest in sports because it cut a viable women’s team that was ready, willing, and able to compete.
In its ruling, the court expressed sympathy for the university’s predicament, but found the plaintiffs’ argument for an injunction to be on solid legal ground.
“We understand that WCU finds itself in a difficult economic situation,” it wrote. “However, we observe that WCU could have heeded the warning of its internal committees and avoided this problem. WCU intentionally made the decisions that brought them to this courtroom, knowing full well the potential implications.”
The sympathy also translated into a more modest award of attorney fees.
On June 21, 2004, the plaintiffs requested attorney’s fees from WCU in the amount of $207,609.50 plus costs in the amount of $ 12,477.82, for a total of $ 220,087.32.
The defendants objected to these totals, contending that the number of hours spent on the litigation and the hourly rate of some of the plaintiffs’ attorneys were unreasonable. Defendants contended that the costs should be reduced and suggested that a reasonable figure for attorney’s fees would be $ 81,858.10.
In a Memorandum and Order on March 31, 2006, the court found the middle ground, awarding $148,472.59.
On April 14, 2006, the plaintiffs filed a motion for reconsideration, arguing that “the Court erred when it reduced the lodestar by 15 percent.”
In disagreeing with the plaintiffs, the court revisited its previous sentiment “that economic distress does not justify federal civil rights violations. Moreover, we did not find that WCU’s financial crisis was a ‘special circumstance’ that wholly excused it from paying attorneys’ fees. Nevertheless, we felt and continue to feel that it is a relevant factor to consider when determining the reasonableness of the attorneys’ fees under the particular circumstances of this case. See Roth v. Green, 466 F.3d 1179, 1194 (10th Cir. 2006).”
The comment wasn’t meant to devalue the work of the “plaintiffs’ counsel, both at the Hangley Firm and TLPJ, [who] demonstrated admirable lawyering skills during the course of this litigation. Moreover, there is no doubt that the plaintiffs’ lawsuit, preliminary injunction, and settlement vindicated an important social interest. We also recognize that the award of attorneys’ fees in such cases can serve as a deterrent against future violations of civil rights, as well as a tool to convince recalcitrant authorities that federal civil rights violators never prosper. Furthermore, we recognize that attorneys’ fees must be available in order to entice counsel to assist in vindicating such civil rights.
“Nevertheless, we continue to believe that the award of almost $150,000.00 in counsel fees and costs provides a reasonable balance between the competing interests here and accomplishes the desired goals. The plaintiffs’ counsel received significant compensation for a job well done and the students of WCU and the taxpayers of Pennsylvania are not punished for the error that resulted in this litigation.”
Elizabeth C. Barrett, et al., v. West Chester University of Pennsylvania of The State System Of Higher Education, et al.; E.D. Pa.; CIVIL ACTION NO. 03-4978, 2009 U.S. Dist. LEXIS 35410; 4/24/09
Attorneys or Record: (for plaintiffs) Leslie A. Brueckner, Lead Attorney, Trial Lawyers For Public Justice PC, Washington, Dc; Sharon F. McKee, William T. Hangley, Lead Attorneys, Hangley Aronchick Segal & Pudlin, Phila, Pa. (for defendants): Claudia M. Tesoro, LEAD ATTORNEY, Office of Attorney General, Philadelphia, PA.


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