By Brian G. Nuedling, of Jackson Lewis P.C.
As a matter of athletic department administration, Title IX is an obligation that is more than just numbers. While maintaining a level playing field in athletic opportunities and support often seems like simple math, courts have shown a willingness to look past the spreadsheets for intent, or at least the appearance that schools are giving compliance more than just the old college try.
Such was the standard of review in Portz v. St. Cloud State University,[1] a recent holding out of Minnesota in which the court looked past budgetary considerations and found that the school had underperformed with its Title IX commitments and was unpersuaded that forces outside of the school’s control were to blame. The court’s opinion and order are a cautionary tale that even in matters like Title IX, which is driven by formulas and percentages, objectives and appearances are important as well.
Litigation History
Portz arose from preliminary and permanent injunctions that dated to 2016. The underlying claim was brought by female student-athletes who were current or former members of the women’s tennis team or women’s Nordic ski team at St. Cloud State University (SCSU). Plaintiffs represented a certified class of present, prospective, and future female athletes who challenged the allocation of athletic participation opportunities and the allocation of benefits provided to varsity athletes at SCSU.[2]
Plaintiffs filed suit after SCSU eliminated the men’s and women’s tennis teams, as well as the women’s Nordic ski team, in March 2016.[3] Six days after announcing those decisions, the school notified the ski team coach that his contract would not be renewed.
On July 25, 2016, the United States District Court for the District of Minnesota granted a preliminary injunction as to women’s tennis, enjoining the school from eliminating the team, involuntarily reducing its coaching staff, reducing financial support for the team, and restricting or denying access by the women’s team to facilities, training or competitive opportunities.
In August 2016, the parties stipulated to extend the preliminary injunction to include the women’s Nordic ski team. The amended injunction permitted SCSU to make changes to the ski team’s coaching staff but otherwise included the same restrictions that applied to the tennis team.
The court conducted a bench trial in late 2018 and issued an Order in August 2019 which concluded that SCSU had not complied with Title IX in its allocation of athletic participation opportunities, treatments, and benefits, dating to at least 2014. The court entered a permanent injunction, requiring the school to maintain women’s tennis and Nordic skiing in a manner comparable with other teams at SCSU. The court further ordered SCSU to amend the distribution of participation opportunities and take immediate steps to provide female athletes with equitable treatment and benefits through improvements to locker rooms, practice areas, and competition facilities.
Motions for Contempt
In Portz, the issue before the court was two motions for contempt, which alleged that Defendants had violated the injunctions by failing to support the women’s tennis and Nordic teams as directed by the court. Plaintiffs further alleged that the school improperly eliminated the women’s golf team after the permanent injunction was in place.
As to women’s tennis, Plaintiffs alleged that SCSU violated the court order by, among other things, scheduling fewer matches in 2019. The school provided a calendar of eleven matches, and the team’s coach added six more, but Plaintiffs asserted that they had played at least 27 matches in prior years. The team’s coach was new to the job, having been hired in January 2019 after the previous coach had died unexpectedly the previous October. Plaintiffs found fault with the slow hiring process, and the new coach asserted difficulty in scheduling matches because of delays in finalizing her contract and a lack of authority to schedule matches.
Plaintiffs also alleged that SCSU had hampered efforts to recruit newcomers to the tennis team because of uncertainty about its long-term status and a perceived lack of support from the school. Plaintiffs further took issue with using the balance of a tennis foundation account to help cover budget shortfalls. The school defended the action, however, stating that it had used a consistent formula across all sports to determine how foundation funds would be used to cover expenses.
As to Nordic skiing, Plaintiffs claimed a disparity in circumstances surrounding the coaching staff, new recruits, and athletic facilities. The court’s findings including the following:
SCSU hired a new coach when the team was reinstated and structured it as an adjunct position (not full time) that paid approximately $14,000 per year. The previous coach was a full-time employee who had been paid about $30,000 for the coaching portion of his job duties. After the temporary elimination of the team, SCSU lost five of seven high school recruits who had committed to ski at the school but subsequently went elsewhere.
Two SCSU skiers registered for a high-profile NCAA qualifying meet in Anchorage, Alaska, in 2018. The school paid for only the coach to attend, while previously SCSU had covered the cost for both the coach and the athletes. For the 2018-2019 season, SCSU hired two part-time coaches who had no ski experience, did not have certain technical knowledge (such as how to wax skis), and did not always travel with the team or attend meets.
Until spring 2019, with the addition of a new locker room, the ski team used the handball court as its “team room.” The condition of the room had deteriorated in ways that included mold growth on an entire wall, air contamination from wax fumes, and a flood that contributed to the mold growth and a buckling of the floor.
In December 2019, SCSU announced that it was eliminating the women’s golf team. The school stated that it was part of a “comprehensive plan” that also eliminated the men’s football and golf teams, and also added a men’s soccer team. No women’s sports were added.
Court’s Findings
The court ultimately concluded that SCSU had failed to comply with the injunctions and was not persuaded by Defendants’ arguments that any appearance to the contrary was the result of budgetary or administrative complications.[4]
In granting the motion for contempt as to women’s tennis, the court cited the school’s full control over the delay in hiring a new coach, the related decline in tennis matches, and a lack of support and resources that would have given prospective students confidence in the viability of the team. The court found that there was “no real question” that SCSU had denied or restricted the team’s access to coaching staff, competitive opportunities, and the “basic ability to maintain a team while the preliminary injunction was in effect. On that basis, the court granted the first motion for contempt and awarded Plaintiffs $10,000 in compensatory damages.
Similarly, the court found that SCSU had violated the preliminary injunction as to Nordic skiing, citing “inadequate coaching and training” for student-athletes, a loss of competitive opportunities based on a lack of recruiting, and a “decrepit” team room for which SCSU “had no explanation.” Accordingly, the court found SCSU in contempt as to the ski team and awarded Plaintiffs $10,000 in compensatory damages.
Finally, the court denied the motion for contempt as to women’s golf, finding that the elimination of men’s golf, women’s golf, and men’s football, combined with the addition of men’s soccer, appeared to be a “good-faith effort to comply with the requirements of Title IX and the permanent injunction while also managing SCSU’s significant budgetary issues.”
Takeaways From Portz
The major takeaway from Portz is that courts will closely scrutinize Title IX compliance, and budgetary concerns or factors outside of a school’s control will not necessarily provide cover. In deciding whether to find that SCSU had failed to comply with the requirements of the injunctions, the Portz court focused its attention on the unwieldy concept of “good faith.” The court was not unsympathetic to circumstances that the school could not anticipate nor necessarily control, but the court wanted evidence that SCSU was approaching compliance in a meaningful way despite issues that complicated the math for the athletic department. Title IX compliance can amount to a balancing of the interests that is subject to interpretation and challenge. But as Portz demonstrates, it is not enough to limit the process to a series of calculations. The letter and spirit of Title IX are important as well.
This article appears in Title IX Alert a publication produced by Hackney Publications and Jackson Lewis, P.C. Subscriptions can be obtained at https://titleixalert.com/ and are complimentary.
[1] No. 16-1115 (JRT/LIB), 2020 U.S. Dist. LEXIS 117915 (D. Minn. July 6, 2020).
[2] Plaintiffs also named as a defendant Minnesota State Colleges and Universities, whose members include SCSU.
[3] SCSU reinstated the women’s tennis team and Nordic ski team in response to the preliminary injunction but did not reinstate the men’s tennis team.
[4] In considering Plaintiffs’ contempt actions, the court first analyzed – and ultimately rejected – Defendants’ arguments that both motions should be dismissed because of jurisdictional or procedural defects that precluded the court from reviewing SCSU’s Title IX compliance. The court also provided a six-month update as to its monitoring of SCSU’s compliance with the permanent injunction.
