Biediger v. Quinnipiac University, Court Case

BRIEF OF THE UNITED STATES AS AMICUS CURIAE

Plaintiffs allege that Quinnipiac University is intentionally discriminating against its female student athletes on the basis of sex in violation of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq. In March 2009, Quinnipiac University announced that it would cut three varsity athletics teams, including the women’s volleyball team. This suit followed, and is premised on several allegations of Title IX violations, including that Quinnipiac has failed and will continue to fail to provide female students an equal opportunity to participate in varsity intercollegiate athletics. As this court has stated, based on the facts of this case, there is no question that, if the University fails to demonstrate that it provided athletic participation opportunities in substantial proportion to the gender composition of its full-time undergraduate enrollment, it will be out of compliance with Title IX, because Quinnipiac’s elimination of the women’s volleyball team precludes the University from demonstrating that it is committed to expanding opportunities for women, or that it has fully accommodated women’s interests and abilities.

Moreover, even if the University appears to provide substantially proportionate athletics opportunities, its athletics program must be carefully evaluated. This is because the elimination of a viable women’s sport with demonstrated interest and ability, combined with its troubling roster management practices and creation of varsity competitive cheerleading, which is not recognized by the organizations governing Quinnipiac’s other varsity sports, cast doubt on whether the University is providing genuine substantially proportionate athletics opportunities for its female athletes in compliance with Title IX. The United States files this brief to address the standards governing two legal issues before the court. First, we address what constitutes a genuine athletic participation opportunity for purposes of Title IX compliance. Second, we address the factors to be considered when determining whether Quinnipiac’s newly created competitive cheerleading team constitutes a “sport” for purposes of Title IX compliance.1

INTERESTS OF THE UNITED STATES

Plaintiffs’ claim of unequal allocation of athletic participation opportunities poses several questions concerning the appropriate application of Title IX to a university’s operation of its athletics program. Given the federal government’s responsibility to enforce Title IX, the United States has an interest in ensuring that the Title IX athletics regulations are properly interpreted and applied.As the United States has not been privy to full discovery in this case, and as the court has not yet heard the evidence on this issue, the United States is not evaluating whether Quinnipiac’s competitive cheer squad should be counted as a “sport” for Title IX purposes. Instead, we offer this amicus brief to assist the court in its analysis. Title IX prohibits any institution receiving federal financial assistance from discriminating on the basis of sex. 20 U.S.C. § 1681(a). It is undisputed that Quinnipiac University receives federal financial assistance and is thus considered a “recipient” under the United States Department of Education (“ED”) Title IX regulations. 34 C.F.R. § 106.2. Under ED’s implementing regulations, no individual may be discriminated against on the basis of sex in any interscholastic, intercollegiate, club or intramural athletic program offered by a recipient. 34 C.F.R. § 106.41(a), et seq. Additionally, the United States Department of Justice, through its Civil Rights Division, coordinates the implementation and enforcement of Title IX among federal departments and agencies providing financial assistance to education programs or activities, including ED. Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 4, 1980); 28 C.F.R. § 0.51 (1998). The United States’ enforcement efforts include participating in Title IX athletics cases as amicus curiae and plaintiff-intervenors. See, e.g., Communities for Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676, 703 (6th Cir. 2006); Cook v. Florida High School Athletic Ass’n, Civ. Action No. 3:09cv547 (M.D. Fla. 2009); Pedersen & United States v. S.D. High Sch. Activities Ass’n, Civ. Action No. 00-4113 (D. S.D. 2000). Consequently, the United States has an interest in the orderly development of the law regarding Title IX.

STATEMENT OF THE CASE

On March 4, 2009, Quinnipiac University announced that it would cut three varsity athletics teams – women’s volleyball, men’s golf, and men’s outdoor track – at the conclusion of the 2008-09 academic year. At the time of this announcement, it is undisputed that Quinnipiac was not offering athletics opportunities in substantial proportion to the gender breakdown of its full-time undergraduate enrollment. To increase the number of female athletic opportunities, Quinnipiac announced that it planned to elevate its cheerleading squad, then a club sport, to varsity status. Quinnipiac claimed that this action would increase the overall number of women’s athletic opportunities sufficiently to satisfy the proportionality prong of the test governing compliance with Title IX’s athletics requirements. Plaintiffs brought suit challenging Quinnipiac’s plans, and seeking both a preliminary injunction and a temporary restraining order to prevent Quinnipiac from eliminating the women’s volleyball team. On May 22, 2009, the court granted the preliminary injunction and, in so doing, found that the Plaintiffs had demonstrated a likelihood of succeeding on the merits of their Title IX claim because Quinnipiac had failed to offer athletic participation opportunities that were substantially proportional in number to the gender composition of its full-time undergraduate enrollment. Underlying this conclusion was significant evidence that the University had engaged in manipulation of its athletics team numbers as part of its roster management system, including setting floors, or minimum roster sizes, for its women’s teams and ceilings, or maximum roster sizes, for its men’s teams.

Plaintiffs filed an amended complaint on December 9, 2009, that set forth five claims. Plaintiffs’ first claim is that Quinnipiac fails to provide female students an equal opportunity to participate in varsity intercollegiate athletics, and that this failure constitutes intentional sex discrimination in violation of Title IX and 34 C.F.R. § 106.41(c)(1). Am. Compl. ¶ 90.2 In support of this claim, Plaintiffs allege that Quinnipiac misrepresents its athletic participation numbers by, among other things, requiring the women’s teams to artificially increase their number of participants, resulting in some members lacking a genuine varsity athletics.

On May 20, 2010, pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), the court granted Plaintiffs’ motion to certify a class of “all present, prospective, and future female students at Quinnipiac University who are harmed by and want to end” the University’s sex discrimination in the allocation of athletic participation opportunities. This class is certified with respect to all factual and legal issues relating to this claim.