Ellen J. Staurowsky, Ed.D., Senior Writer & Professor, Sports Media, Ithaca College, staurows@ithaca.edu
The question is an important one. Whether under Title IX, women college athletes from one team can represent women on other teams in a class action challenging gender discrimination in their institution’s athletic department? This is the question that Plaintiffs in Taylor Anders et al. v. California State University, Fresno and Board of Trustees of California State University are currently pursuing on appeal in the United States Court of Appeals for the Ninth Circuit.
Background
In February of 2021, members of the California State University, Fresno (Fresno State) women’s lacrosse team filed a complaint against the university, athletic director, former president, and interim president alleging unequal treatment under Title IX. Seeking injunctive relief to prevent their team from being cut as part of the athletic department’s proposed cost-savings plan implemented in response to the negative economic impact of COVID-19, the Plaintiffs alleged that the cuts amplified rather than resolved Title IX issues in the department for women athletes. In the area of access to equal athletic participation opportunities, Fresno State had not provided women athletes with opportunities substantially proportional to enrollment for many years. As a consequence of Fresno State’s proposed course of action to cut the women’s lacrosse team, they were unable to argue that the institution had a history and continuing practice of expanding opportunities for women athletes as an underserved group and/or that the institution effectively met the needs of women athletes who had demonstrated that they were interested and qualified to play their sport.
In terms of athletic financial assistance, the Plaintiffs alleged unequal treatment in terms of athletic financial assistance, citing women athletes at Fresno State had received $5.3 million less in athletic scholarships compared to men athletes between the years 2003-2004 and 2018-2019. And Plaintiffs further alleged that they were treated as second-class citizens, denied equal access to benefits under Title IX that support critical operational areas, such as but not limited to access to playing and practice venues, quantity and quality of coaching, publicity and promotion, sports medicine support, tutoring and academic support, per diem, officiating, and transportation. Specific to their circumstances, matters worsened for Fresno State’s women lacrosse players. After the announcement was made that their team was scheduled to be cut in 2021-2022, women lacrosse players at Fresno State were not assigned a locker room, were not given a return to play plan as other men’s teams were given, were uncertain as to who would coach them, and were not provided basic equipment items like cleats while they were still on the team.
In April of 2021, the court issued a split decision in the case, accepting the arguments of Fresno State that when the cuts to both men’s and women’s programs were fully implemented in 2021-2022, the institution would be in compliance in providing athletic participation opportunities proportional to enrollment but leaving the door open to amend the complaint. At the time, Fresno State was ordered to provide the existing women’s lacrosse team with the support they were being denied under Title IX. In October of 2021, claims regarding shortfalls in athletic financial aid were dismissed with prejudice due to what the Court described as a faulty analysis.
As issues related to the provision of substantially proportionate athletic opportunities and equal treatment for women athletes at Fresno State remain open, the case is currently ensnared in a set of questions emanating from the district court’s dismissal of class certification.
The Issue of Class Certification
Senior District Judge Anthony W. Ishii denied the Plaintiffs’ initial motion for class certification in August of 2022 and their subsequent renewed motion for class certification regarded by Judge Ishii to be a motion for reconsideration in November of 2022. While the district court found that the Plaintiffs met the requirements for numerosity, typicality, and commonality, they fell short in terms of the adequacy standard. As per the district court’s first order declining class certification, “…there is evidently conflicts of interest between the interests of the class representatives, as former members of the women’s varsity lacrosse team, and current and former female athletes at Fresno State who were not members of the women’s lacrosse team and who were not able and ready to play lacrosse”.
Citing what was described by the district court as a disproportionate emphasis on lacrosse in this case, the court found “the professed neutrality of the proposed class representatives does not resolve the conflict in question or otherwise make class certification appropriate”. The court further found that “…neutrality on the part of the proposed class representatives would deprive student-athletes (including lacrosse players) of their due process right to vigorous and single-minded advocacy specific to their respective sport”. Responding to the Plaintiffs’ request to separate out the certification issues at the liability and remedy phases, the Court declined to grant class certification for liability only “because due process rights to vigorous sport-specific representation apply at all stages of this litigation”.
The issue regarding class certification in Anders is now before the United States Court of Appeals for the Ninth Circuit. In the Plaintiffs’ opening brief, filed July 7, 2023, the Plaintiffs’ begin by challenging the district court’s sua sponte holding that women athletes who complain about discrimination under Title IX have a “due process right to vigorous and single-minded advocacy that is specific to their sports” and that “that right applies at all stages of litigation”. Noting that this holding is “unprecedented in U.S. legal history”, the Plaintiffs’ argue that there are four reasons why the District Court’s denial of class certification should be reversed:
- “There is no due process right to vigorous sport-specific representation” in Title IX litigation because liability is based on program-wide comparisons of opportunities and treatment provided in the aggregate to all men and all women athletes, regardless of team;
- The district court’s focus on potential remedy-stage conflicts was inconsistent with the Ninth Circuit that has found repeatedly “that conflicts that may or may not arise as to remedies are speculative and not a reason to deny certification”;
- The district court erred by ignoring Rule 23(c)(4) which “authorizes class certification for limited issues”. As a result, at the remedy phase, while members of different teams might prefer different remedies, “they can never have a conflict as to liability”; and;
- “…the district court disregarded undisputed evidence showing no conflict exists in this case” given that the Plaintiffs’ sought relief from gender discrimination under Title IX for the entire class.
In an amici curiae brief filed in support of the Plaintiffs by the Equal Rights Advocates and 17 other civil rights and women’s sports advocacy organizations, they note “Title IX does not create a burden on specific teams to prove why one or the other should be saved from termination; it protects teams from termination if such termination would place the institution out of compliance with Title IX”. They further note, “In finding conflicts among student athletes on different school teams, the district court’s manifestly erroneous decision would effectively make it impossible to enforce Title IX via class action litigation”.
References
Taylor Anders et al. v. California State University Fresno et al. Case No: 1:21-at-00100. (February 12, 2021). Retrieved from https://dig.abclocal.go.com/kfsn/PDF/021321-kfsn-lacrosse-legal-doc.pdf
Taylor Anders et al. v. California State University Fresno et al. Doc. 60. Order Granting Motion to Dismiss Count II of the Second Amended Complaint. (October 21, 2021). Retrieved from https://cases.justia.com/federal/district-courts/california/caedce/1:2021cv00179/388720/73/0.pdf?ts=1635586801
Taylor Anders et al. v. California State University Fresno et al. Doc. 88. Order Denying Plaintiffs Motion for Class Certification. (August 16, 2022). Retrieved from https://www.casemine.com/judgement/us/62fdc0994ea12d25b9b3c93b
Taylor Anders et al. v. California State University Fresno et al. Doc. 94. Order Denying Plaintiffs’ Renewed Motion for Class Certification, and in the Alternative, Motion for Reconsideration. (November 22, 2022). Retrieved from https://casetext.com/case/anders-v-cal-state-univ-fresno-4
Taylor Anders et al. v. California State University Fresno et al. No. 22-80137. On Appeal from the United States District Court for the Eastern District of California Fresno Division 1:21-CV-00179. (December 15, 2022). Retrieved from https://nwlc.org/wp-content/uploads/2023/01/8-Motion-for-Leave-to-File-Amici-Curiae-Brief-Equal-Rights-Advocates-et-al.pdf
Taylor Anders et al. v. California State University Fresno et al. No. 23-15365. On Appeal from the United States District Court for the Eastern District of California Fresno Division 1:21-CV-00179-AWI-BAM. (July 7, 2023).
