By Lauren Rosh
On November 1, 2022, the United States District Court for the Southern District of California granted in part and denied in part a request for judicial notice and also granted in part and denied in part a motion to dismiss by the Board of Trustees of the California State University and San Diego State University (SDSU), collectively the defendants.
The case is a class action lawsuit against San Diego State University brought by former and current women athletes at the University regarding alleged Title IX violations related to the allocation of athletics scholarship funds, treatment and benefits, as well as retaliation.
Factual Background, Initial Complaint, Motion to Dismiss
In 2020, SDSU cut its women’s rowing team. As a result, some players came together to bring back their team. However, as Arthur Bryant, one of the attorneys with Bailey Glasser representing the athletes, said that with lawsuits sparked by teams being cut, the perspective is often not to just bring back the team, but rather to ensure the team is brought back to an environment in which its members are treated well.
The named plaintiffs in the case are either former members of the SDSU now-eliminated women’s rowing team or current members or former members of SDSU’s women’s track and field team. Their names are Madison Fisk, Raquel Castro, Greta Viss, Clare Botterill, Maya Brosch, Helen Bauer, Carina Clark, Natalie Figueroa, Erica Grotegeer, Kaitlin Heri, Olivia Petrine, Aisha Watt, Kamryn Whitworth, Sara Absten, Eleanor Davies, Alexa Dietz and Larisa Sulcs.
The plaintiffs filed the initial complaint on February 7, 2022, asserting a claim regarding the denial of equal allocation of athletic financial aid.
According to the District Court’s opinion, when determining whether there is an equitable allocation of athletic financial aid, compliance is examined by “a financial comparison to determine whether proportionately equal amounts of financial assistance (scholarship aid) are available to men’s and women’s athletic programs.”
The opinion further explains that this is measured by “dividing the amounts of aid available for the members of each sex by the numbers of male or female participants in the athletic program and comparing the results.”
Here, the plaintiffs alleged that “none of them ‘received all of the athletic financial aid for which they were eligible at SDSU.’” Under 45 CFR 86.37, “to the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.”
Therefore, if 55% of the athletes are women, then the school must allocate 55% of the scholarship funds to athletes who are women.
According to the initial complaint, during the 2019-20 academic year, pursuant to information SDSU submitted to the federal government under the Equity in Athletics Disclosure Act, the university gave women varsity athletes $690,000 less in aid and men varsity athletes $690,000 more in aid, which the plaintiffs argue they were supposed to receive if the defendants had complied under the provisions laid out by 45 CFR 86.37.
Additionally, the complaint goes on to allege that during the 2020-21 academic year, according to the information SDSU submitted to the federal government under the Equity in Athletics Disclosure Act, the university granted women athletes $570,000 less and men athletes $570,000 more than each should have received if the school complied with the applicable law. The complaint alleges that this disproportionate allocation is still currently happening as well.
On April 8, 2022, the defendants filed a motion to dismiss, and the plaintiffs amended their complaint, filing it on April 21, 2022. The plaintiffs also added the other two claims for denial of equal treatment and benefits under Title IX as well as alleged retaliation.
When the Office of Civil Rights considers whether there are equal opportunities presented to members of women’s and men’s teams, it considers, among other facts: (1) whether the selection of sports and levels of competition effectively accommodating the interests and abilities of members of both sexes; (2) the provision of equipment and supplies; (3) scheduling of games and practice time; (4) travel and per diem allowance; (5) opportunity to receive coaching and academic tutoring; (6) assignment and compensation of coaches and tutors; (7) provision of locker rooms, practice and competitive facilities; (8) provision of medical and training facilities and services; (9) provision of housing and dining facilities and services; (10) publicity.
Here, as laid out in the first amended class action complaint filed on November 29, 2022, the plaintiffs make several allegations including (1) that women on certain teams, such as track and field, have had to reuse equipment while the men, on teams such as football, do not; (2) that men’s teams are given priority for scheduling practice and weight room training; and (3) that SDSU provides men’s teams catered meals while traveling, but the women’s teams have to provide their own sack lunches when traveling.
The third claim the plaintiffs asserted against SDSU is retaliation. As described by the district court’s opinion, actionable sex discrimination includes retaliation “against a person because he complains of sex discrimination.”
After the plaintiffs filed the initial complaint for this case on February 7, 2022, according to the first amended class action complaint a meeting that was previously unscheduled was called for on February 16 with the women’s varsity track and field team. The plaintiffs allege in the amended complaint that on the call, at the beginning of the meeting, SDSU said that it was “disappointed and unhappy” with the women who brought the lawsuit against the school as it was a distraction.
The first amended complaint continues by stating that the five members of the women’s track and field team who were on the February 16 call and named plaintiffs were “adversely affected, disturbed and upset, and harmed in their ability to pursue Title IX claims on behalf of themselves and the other female student-athletes at SDSU.”
Shortly after, on May 5, the defendants filed a motion to dismiss seeking to dismiss the first amended complaint on the grounds that the plaintiffs did not have standing for their Title IX claims for the first and second counts alleging unequal allocation of scholarship and unequal treatment and benefits, respectively.
The motion to dismiss also stated that the complaint failed to state a claim for relief for all three counts, the third count being alleged retaliation because they did not plead sufficient facts to support the claim.
Lastly, the motion to dismiss also sought dismissal on the grounds that the plaintiffs are not entitled to recover monetary damages.
The plaintiffs’ response to the motion to dismiss, which they filed in June, went into detail regarding the three counts. For instance, SDSU awarded women athletes less than a proportional amount of financial assistance every year from 2010-11 to 2020-21, that the treatment of women athletes is “far less well” than the men athletes, and that during the February 16 call, SDSU “singled out those who were participating in the lawsuit.”
On November 1, the United States District Court for the Southern District of California granted in part and denied in part the defendants’ request for judicial notice and also granted in part and denied in part the defendants’ motion to dismiss.
According to the November 1 opinion, the plaintiffs had the chance to amend the complaint, which they did on November 29 to avoid abandoning the first and third causes of action.
After the court delivered the opinion and the plaintiffs filed the second amended complaint, the defendant filed another motion to dismiss on December 13, 2022. In that motion, the defendants sought to dismiss the first and third counts of the second amended complaint on three grounds: (1) that the plaintiffs lack standing to pursue a Title IX claim for unequal allocation of athletic financial aid (categorized as Count I) or retaliation (categorized as Count III), (2) plaintiffs fail to state a claim for relief, and (3) to the extent plaintiffs can establish standing on Counts I or III of this amended complaint and state a claim for relief, they are not entitled to recover monetary damages.
The plaintiffs’ response to the motion to dismiss on the second amended complaint is due on January 26, 2023, and then the defendant will have an opportunity to reply to that response by February 9, 2023.
On February 23, 2023, there will be a hearing on the motion.
Note: The defendants’ attorneys did not respond to comment when Hackney Publications reached out likely due to the ongoing nature of this case.
Lauren Rosh is a JD candidate at The George Washington University Law School with an expected graduation date of May 2025. She earned a BA with honors in multiplatform journalism from the University of Maryland, College Park, and has extensive experience covering the intersection of athletics and Title IX.
