The 9th U.S. Circuit Court of Appeals has reinstated a Title IX lawsuit brought by several female wrestlers against the University of California, Davis. The wrestlers were upset because the school effectively shuttered their program by requiring them to wrestle against their male counterparts in order to earn a spot on the team.
In so ruling, the panel ignored the school’s argument that more cuts to other men’s programs, which created a more balanced ratio of female student athletes to male student athletes, kept the school in compliance with Title IX. In fact, colleges and universities are expected to demonstrate a “history and continuing practice of program expansion” to remain in compliance with Title IX.
The plaintiffs in the case were Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng. The women filed a class action against UCD and several UCD officials in their individual and official capacities, on behalf of all current and future female UCD students denied equal athletic participation opportunities. The plaintiffs sought damages and injunctive relief under Title IX and also asserted equal protection claims under 42 U.S.C. § 1983.
While seeking class certification, one of the plaintiffs’ attorneys became ill. This created a domino effect, whereby the students failed “to give UCD notice in advance of filing suit of the alleged Title IX violation and an opportunity to cure it.” The district court granted summary judgment on that ground. The plaintiffs appealed.
The panel examined the district court’s rationale for dismissing the claim and concluded that a notice requirement does not apply in the “athletics context.” It pointed specifically to Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).
“Gebser does not make pre-litigation notice of an alleged violation a prerequisite to recovery in every Title IX case, or even in every sexual harassment case,” wrote the panel. “Proof of actual notice is required only when the alleged Title IX violation consists of an institution’s deliberate indifference to acts that ‘do not involve official policy of the recipient entity.’ Id.”
It went on to outline other reasons that “pre-litigation notice and opportunity to cure is not necessary in cases alleging unequal provision of athletic opportunities in violation of Title IX.” Summarizing its position, the panel wrote that “applying the notice requirement to institutional decisions would contravene the clear language of Gebser and its progeny. It would also be inconsistent with funding recipients’ affirmative obligations to provide nondiscriminatory athletic participation opportunities and continually to assess and certify compliance with Title IX.”
The panel then turned to the question of whether UCD could comply by shuttering more men’s programs than women’s programs.
“In sum, UCD expanded varsity opportunities for women only between 1996 and 2000. UCD’s elimination of women from the varsity wrestling team thus took place in the context of an overall contraction of female athletic participation opportunities that began in 2000. UCD’s post-2000 strategy for sports equality between the sexes appears to have consisted of reducing varsity athletics overall, and in the process reducing men’s participation more than women’s participation by using ‘roster management’ to limit the size of men’s teams. The Clarification explicitly precludes considering such reductions as evidencing program expansion.”
Arezou Mansourian et al. v. Regents of The University of California et al.; 9th Cir.; No. 08-16330; 2/8/10
Attorneys of Record: (for plaintiffs-appellants) Noreen Farrell (argued), Debra Smith, James C. Sturdevant, Monique Olivier, San Francisco, California; Kristen Galles, Alexandria, Virginia. (for defendants-appellees) Nancy J. Sheehan, Sacramento, California.
