By Gary Chester, Senior Writer
Are students who allege that a university violated Title IX for eliminating a sports program required to attend the school in order to have standing to sue, or is their intention to enroll sufficient? In closing the door to the penalty box for two women hockey players and opening it for two others, the U.S. Court of Appeals for the Eighth District settled this issue in Becker v. The North Dakota University System, 2024 U.S. App. LEXIS 20433 (August 14, 2024).
The Trial Court Dismisses the Case
Plaintiffs Emily Becker, Calli Forsberg, Morgan Stenseth, and Maya Tellmann are hockey players who wished to play for the University of North Dakota (UND) Fighting Hawks women’s ice hockey team. That was not possible, however, because the school eliminated the team after the 2016-17 season. The four plaintiffs sought to compel UND to bring back women’s hockey. They joined a federal lawsuit alleging that the school violated Title IX, even though none of them were enrolled at UND at the time.
On January 9, 2023, the trial court dismissed the complaint as to all four players. UND argued that the plaintiffs lacked Article III standing to sue because they did not attend the University. The players argued that “would-be students” have standing to bring Title IX claims against universities they do not attend. The court concluded that the alleged injury was “conjectural or hypothetical” and therefore, insufficient to confer subject matter jurisdiction. [Becker v. N.D. Univ. Sys., 2023 U.S. Dist. LEXIS 3625 (D.N.D., January 9, 2023)].
The court considered two precedential cases and observed that students who are enrolled at a certain college or university and are “ready and able” to compete for a position on a reinstated team are more likely to have standing. On the other hand, students who are “deterred” from enrolling because of the alleged sex discrimination in athletics are less likely to have standing.
Facts Matter, and They Were Different for Each Plaintiff
It was the end of the 2015-16 season and the UND women’s hockey team had just completed their sixth consecutive winning year. It was an attractive program for high school players throughout the state. However, a year later the university eliminated women’s hockey, along with men’s and women’s swimming and diving, as part of a $1.3 million reduction in the athletics department budget. Becker, Forsberg, Stenseth, and Tellmann were among those high school student-athletes who were disappointed by the decision.
The appellate court discussed each plaintiff separately, starting with Forsberg, a two-time state champion whom UND recruited from high school to play on the women’s hockey team in 2016. After the University eliminated the team in 2017, Forsberg decided to attend Bemidji State University in Minnesota. (She played hockey there for four seasons and made the Western Collegiate Hockey Association All-Academic team three times.) Forsberg had three years of NCAA eligibility remaining.
Tellmann was a two-time state hockey champion whom UND accepted as a student, but she had no chance to play or try out because, by then, there was no team to join. Tellmann had four years of eligibility remaining when the trial court dismissed her claim. Tellmann alleged that she would attend UND if the team was reinstated. Tellmann and Forsberg asserted that their injury was the continuing denial of an opportunity to compete for the team of their choice.
Becker played on her high school ice hockey team for four years. She alleged that she would enroll at UND and play on the hockey team if the University offered that opportunity. Her complaint did not indicate if UND accepted her, or if she met the minimum standards for admission, or whether she was skilled enough to qualify for a spot on the team.
Stenseth competed throughout high school and on club teams. According to the trial judge, she was accepted at UND and attended the school; however, the Eighth Circuit stated that they did not know why Stenseth did not attend the University, and the complaint did not indicate any “general expression of intent” to attend UND in the future. The discrepancy may relate to a defect in the pleadings.
On Further Review…
The Eighth Circuit noted that standing to sue under Article III “is the threshold question in every federal case [because it] determine[es] the power of the court to entertain the suit.” It requires (1) an actual injury, (2) causation between the injury and the challenged conduct, and (3) a likelihood that a favorable decision will redress the injury.
In determining “actual injury,” the court placed Forsberg and Tellmann in the same category. The former was recruited to play on the UND women’s hockey team, and the latter was accepted into the university as a student, but could not try out for the team because there was no longer a team. “As injuries go,” the court stated, “this one is ‘concrete’ enough to provide standing, in part because both Forsberg and Tellmann allege a definite intent to attend if they can play hockey.”
Forsberg, the court noted, alleged that she would return to UND if the hockey program was reinstated. Since the school recruited her to play hockey, the court inferred that she had the skills to compete. The court found that Tellmann, who alleged that she “would attend” UND if women’s hockey returns, was in a similar position. Tellmann was accepted to the university, and her allegations provided some evidence that she was “able and ready” to compete based on her success in high school and club hockey.
Having decided that Forsberg and Tellmann had alleged sufficient harm, the court next considered causation and redressability. The plaintiffs clearly lost the chance to play hockey at UND due to the decision to eliminate the program; to remedy their ongoing injury, they sought a declaratory judgment and an injunction, either of which could lead the university to reinstate the program. The court distinguished a case involving a women’s soccer player at the University of Minnesota, Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001) from the instant case on the basis that the plaintiff no longer had NCAA eligibility, meaning “she could not play regardless of what happened with the lawsuit, at least without a rule change.”
The two remaining plaintiffs, Becker and Stenseth, did not allege all the necessary facts. Becker claimed that she would enroll at UND if it offered women’s hockey, but she did not allege that the university had accepted her, that she met the minimum standards for admission, and that she was skilled enough to compete for a place on the team. Therefore, the court denied Becker’s appeal because it was possible that her alleged injury was not due to the elimination of the women’s hockey team, but the result of her own credentials or the academic and/or athletic standards set by UND.
Stenseth alleged that she was accepted at UND, but did not explain why she never enrolled there. Nor did Stenseth claim she would attend UND if the hockey team was reinstated. “She does not even allege an injury-in-fact,” the court stated, “much less one that a decision about the future of women’s hockey at the University of North Dakota could remedy.”
In reversing the judgment against two players and affirming as to the remaining two, the court did not address the issue of whether the lawsuit was moot. Thus, the effort to reinstate the once-respected women’s hockey program at UND continues.
