A federal court in Pennsylvania denied parties' motions for summary judgment in a case challenging gender-based inequities in athletic opportunities at Lock Haven University. The university had announced plans to terminate its women's swim team and demote field hockey to Division II.
The evidence in the case allowed the court to rule as a matter of law that Lock Haven did not satisfy either of the first two parts of the three-part test for effective accommodation. Though "only" 3.36 percentage points separated the percent of athletic opportunities for female students (52.18%) and the percent of female students in the student body (55.54%) , the court acknowledged this translates to 36 athletic opportunities, a number not too small to support a new varsity team. Nor did evidence show a history of continuing practice for adding opportunities in women's sports, since Lock Haven both added and ended women's teams in the past and also denied requests from club teams for elevation to varsity status.
But the court could not decide as a matter of law, without the benefit of trial, whether Lock Haven satisfied part three. It has not yet in fact terminated the swim team, so it has not created the situation that would automatically render it out of compliance with the satisfied interests test. That left the court to consider conflicting evidence: on the one hand repeated requests from the women's club rugby team requesting elevation to varsity status, and on the other hand, survey data suggesting female students' interests in additional athletic opportunities is low. So the court withheld summary judgment on this issue and deferred it to trial. It also saved for trial the question of whether demoting the field hockey team to Division II would violate Title IX, since it hasn't happened yet and Lock Haven claims to have withdrawn that idea from consideration. The plaintiffs' equal treatment claims also raised too many issues of disputed fact to warrant summary judgment for either side.
Last, the court addressed whether this case could proceed as a class action purporting to represent "all present, prospective, and future University female students who participate, seek to participate, or have been deterred or prevented from participating in or obtaining the benefits of intercollegiate athletics at Lock Haven University." Class certification is helpful to plaintiffs especially in Title IX cases because it keeps the case from becoming moot when the current student-plaintiffs graduate. Here, the court rejected class certification of such a broad class, noting that the named plaintiffs, who are members of the swim, field hockey, and club rugby team, are differently situated from each other and from other present and future students with respect to the remedies they would favor. But the court permitted the plaintiffs to request certification of three subclasses, each purporting to represent the present and future potential members of each team.
Theoretically, then, the next step in this case is for the plaintiffs to repropose their class certification request, and for the court to schedule trial. I admit, though, I'd be highly surprised to see an actual trial in this case. I think a decision to drop swimming would be impossible to defend unless the university first closes the proportionality gap, and it should be clear that it can't elevate a men's team (wrestling) to Division I and offer no similar benefit to any women's team. Moreover, Lock Haven also argues that it is close to complying with proportionality. Given all this, I'd bet the parties would be more likely to settle than to engage in an expensive and time-consuming trial.
Robb v. Lock Haven Univ. of Pennsylvania, No. 4:17-CV-00964, 2019 WL 2005636 (M.D. Pa. May 7, 2019).