From the proposed Findings of Fact and Conclusions of Law (“FOFCOL”) of St. Cloud State University (SCSU) after a trial before Chief Judge John R. Tunheim of the U.S. District Court (D. Minn.), we  learn that SCSU appears to be a struggling educational institution.

As a result of the decline in enrollment and accompanying revenues, SCSU has had to endure layoffs, hiring freezes, program cuts, and cutbacks. This has impacted students, faculty, staff, and everyone affiliated with the campus community. For example, SCSU has eliminated 36 academic programs.

(See here at p.2.)

The question for Judge Tunheim appears to be whether SCSU’s unfortunate austerity measures have fallen disproportionately on SCSU’s female athletes and have therefore resulted in violations of “Title IX” (Title IX of the Education Amendments of 1972, codified at 20 U.S.C. § 1681(a)).

It’s a fact-intensive analysis. It is so deeply fact intensive that Minnesota Litigator has neither the time nor the zeal to wade into the dispute deep enough to take a side. But here is the process that the Court will have to undertake:

Plaintiffs have the burden to prove SCSU does not comply under Part One of [a] Three-Part Test…[O]nce Plaintiffs meet their burden of proof that SCSU does not comply under Part One, the burden shifts and SCSU bears the burden to prove it complies under Part Two of the test….If a school does not comply under Part One or Part Two, the burden is on the plaintiff to show that interests and abilities exist which are not accommodated by the school’s current offerings, and that a school has not accommodated ‘fully the unmet, demonstrated interest of the under-represented gender…’

(See here at p. 47.)

To meet the requirements of Part One, a school must provide ‘substantially proportionate’ genuine athletic participation opportunities to its students that mirror the sex-based composition of its undergraduate-student body.

(Id. at p. 51.)

A school complies with Title IX under Part Two if it ‘can show a history and continuing practice of program expansion which is demonstrably responsible to the developing interest and abilities’ of female athletes.

(Id. at p. 58.)

A school complies with Title IX under Part Three by showing it fully and effectively accommodates the interests and abilities of its students who are the members of the underrepresented sex, including students admitted to the institution but not yet enrolled.

(Id. at 60.)

Not only do the Plaintiffs argue that SCSU has failed to comply with all three parts of this Title IX test, they go further and argue that SCSU was subject to a court order, a preliminary injunction, forbidding it from “reducing support” for the team or “restricting or denying [the team’s] access to facilities, coaching, training, or competitive opportunities,” or reducing or denying teams’ access to coaching. So, Plaintiffs argue, SCSU violated this order exposing it to civil contempt sanctions.

(Id. 71-72.)

In response, SCSU denied the allegations of Title IX violations and, as to the Plaintiffs’ request of a finding of civil contempt (and sanctions), strongly objected to this claim in a recent letter to Court. SCSU had no notice or opportunity to be heard on this new line of attack which apparently had not been raised before or at trial.

“A Tough Knot to Crack” (photo by Jay Fanelli)

We look forward to updating this post when Judge Tunheim has cracked this tough knot….

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