By Brian G. Nuedling, of Jackson Lewis P.C.
(Editor’s Note: What follows is an article from Title IX Alert, a Hackney Publications periodical.)
The interplay between a Resolution Agreement and a private cause of action for injunctive relief presented a unique set of circumstances for a court that was faced with determining its role in supervising the enforcement process between the Department of Education and a public university.
In Duguid v. State University of New York at Albany (“SUNY”),[1] former members of the women’s tennis team brought suit after the school canceled the women’s tennis program in the spring of 2016. The plaintiffs alleged that by eliminating the team, SUNY violated their rights under Title IX of the Education Amendments of 1972 (“Title IX”). Gordon Graham (“Graham”), the coach of the team, joined the suit and added claims that SUNY subjected him to gender discrimination and violated his equal protection rights, alleging that the university fired him because of his age.[2]
The plaintiffs contended that SUNY violated Title IX by failing to provide women with opportunities to participate in intercollegiate athletics in number proportionate to their representation in the student body. They contended that the university decided to eliminate the women’s tennis team because of cost; the gender of the players; the national origin of the players, most of whom came from foreign countries; and the expectation that Graham, who was 65 years old, would retire.
SUNY asserted that it discontinued the women’s tennis team based on “a lack of Division I competition opportunities.” The university had participated in the America East Conference (“AEC”), but several members of the AEC had eliminated women’s tennis. SUNY noted that after 2015, the AEC no longer had a sufficient number of teams needed for automatic qualification to the NCAA tournament. As a result, the AEC stopped sponsoring women’s tennis. The university further contended that its attempts to find other options were unsuccessful. Specifically, no other conferences in the eastern United States could accommodate SUNY. In addition, competing in a conference elsewhere in the country was deemed too expensive and likely to result in the tennis players missing excessive class time.
Prior to the court proceedings, the dispute over the fate of the SUNY women’s tennis team came before the Office of Civil Rights (“OCR”), which enforces Title IX for the United States Department of Education. After investigating the university’s varsity intercollegiate sports programs, based on a complaint that had been filed by Graham, OCR and the university entered into a Resolution Agreement in August 2017. Among other things, the agreement provided that OCR would continue to monitor the SUNY athletic programs until the agency was satisfied that the university had fulfilled the terms of the agreement and was in compliance with Title IX.
During the court proceedings, the plaintiffs acknowledged that they had initiated their cause of action after ORC had reached an agreement with the university that was designed to correct the violations that had been identified in Graham’s complaint.[3] The plaintiffs filed their initial complaint on September 29, 2017, approximately one month after the ORC agreement. On November 8, 2017, the plaintiffs sought a preliminary injunction that reinstated the tennis team. However, the court determined that the plaintiffs had waited too long to seek this remedy and held that a preliminary injunction was not available. The plaintiffs contemporaneously filed a state court action seeking similar relief, which delayed the ability of the federal court to address the matter. In the period of delay, Graham filed the OCR complaint, which resulted in the Resolution Agreement that was meant to address the imbalance of intercollegiate athletic opportunities at SUNY.
The plaintiffs turned to the federal court for relief that included an order that SUNY take action to establish athletic opportunities for women, to report on those efforts, and to end discrimination against women in athletics. The plaintiffs also asked the court to enjoin the university from eliminating any women’s sports and to appoint a special master to supervise SUNY’s compliance with the court’s directives. The court observed that the requested remedies were covered in the Resolution Agreement. The court also noted that a special master would serve much the same role as that of the OCR. The court concluded that establishing the procedures requested by the plaintiffs would likely duplicate, or even undermine, the provisions of the Resolution Agreement and the efforts of the OCR.
While noting that Title IX does not contain an explicit private right of action, the Supreme Court has found an implied right of action in that legislation. The court observed that the narrow issue was whether the court could enjoin a university in a way that interfered with a Resolution Agreement that was already in place before the plaintiffs took action. The court noted that it had not found a case in any circuit that offered a holding on the issue of whether a Resolution Agreement precluded or mooted a private action for injunctive relief under Title IX.
However, in recounting the Eighth Circuit case of Gebser v. Lago Vista Independent School District,[4]the court found that an implied private action for system Title IX relief must be secondary to an agency proceeding that has resulted in satisfactory voluntary compliance. In interpreting Gebser, the court found implication that a private action seeking to alter or enforce the terms of an agreement between OCR and a university that is designed to rectify a Title IX violation would be an unwarranted interference in the Department of Education’s administrative authority. The court held that, absent direct holdings on this issue, it was persuaded that the implied right of action in Title IX does not permit suits filed after a settlement between OCR and a university and which attempted to alter or enforce the terms of a settlement that remained in place.
With this framework in place, the court considered the parties’ motions for summary judgement. The court chose to focus on SUNY’s motion, since granting it would dispose of all issues raised by the plaintiffs.
As to Title IX, the defendants argued that the Resolution Agreement vitiated any need for the court to provide the injunctive relief that the plaintiff sought. The court held that by filing an action for injunctive relief to compel SUNY to comply with Title IX, the plaintiffs were seeking remedies that would be independent of the Resolution Agreement, which was already aimed at obtaining compliance with Title IX. The court noted that even if injunctive relief were necessary, Title IX does not permit a court to require particular positive actions to satisfy the statute’s requirements. The court concluded that providing the injunctive relief would undermine OCR’s enforcement powers, interfere with an agreement between a federal agency and an educational institution partly supported by federal grants, and disrupt a process that was contemplated by the regulations implementing Title IX. In sum, the court concluded that the plaintiffs were effectively attempting to monitor, implement, and alter the Resolution Agreement. As it held that it did not have such power, the court granted the defendants’ motion for summary judgment as to the Title IX claim.
The defendants further sought summary judgment on Graham’s claims, arguing that a claim of employment discrimination by an individual employee is not available under Title IX. The defendants further claimed that Graham had not demonstrated any damages, and that no evidence existed to support his claim. The defendants further argued that the court must dismiss his equal protection claim, which alleged discrimination on the basis of his age. As to gender, the court found that the plaintiffs had not shown any evidence that Graham’s gender had played any role in the decision to eliminate the women’s tennis team. In an effort to show disparate treatment, the plaintiffs attempted to draw a comparison between Graham and Mary Grime, a women’s basketball coach who was made an assistant for the football team after being required to leave the basketball job. However, SUNY had also assigned alternate duties to Graham after his term ended. The court found the Grime and Graham were not similarly situated and, therefore, granted the defendants’ motion for summary judgment on this count as well.
[1] No. 1:17-cv-1092 (TJM/DJS), 2021 U.S. Dist. LEXIS 125301 (N.D.N.Y., July 6, 2021).
[2] Graham, who was 60 years old when SUNY hired him, was employed at the university until his contract expired in August 2017.
[3] By the time the matter came before the court, all of the tennis players had either graduated or had left the school. They were replaced by other plaintiffs.
[4] 524 U.S. 274 (1998).
