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SDSU Students May Finally Be Able to Proceed with Title IX Case Alleging Illegal Retaliation

The third time may be the charm for female varsity athletes who first sued San Diego State University nearly two years ago alleging that the school violated their Title IX right to equal treatment in athletics. In the latest decision in the saga of Fisk. vs. the Board of Trustees of the California State University, The U.S. District Court for the Southern District of California dismissed part but not all of the students’ third amended complaint against the University. Specifically, students may still be entitled to damages based on their allegations that the University failed to provide fair financial aid, denied them equal benefits and treatment, and unfairly retaliated against them for bringing a Title IX lawsuit against the school.

As is so often the case with lawsuits, much of the argument in the case so far has hinged on whether the parties seeking relief have proper legal standing to make their claims. While the Court has held that some of the plaintiffs are not in a position to seek legal relief and others are limited in the type of relief they may seek, Judge Todd W. Robinson did not dismiss all the claims, allowing the suit to move forward.

It Started with Alleged Discrepancies in Financial Aid

The case initially involved 17 female varsity athletes at San Diego State who alleged that the school did not provide the athletic financial aid they were entitled to based on the participation rates in the female varsity athletic program. Most of the plaintiffs were members of the rowing team, but a substantial percentage were in the track and field program at San Diego State.

The students presented statistics on athletic scholarship money presented to male and female students over the previous ten years and pointed to a decrease in financial aid for females in comparison with males over the three years leading up to the lawsuit. They argued that if the school had awarded aid in proportion to the number of students of each gender participating in athletics, then female athletes should have received over $1.2 million more than they did.

Retaliation Enters the Picture

Nine days after the students filed the lawsuit, representatives of the University indicated during a Zoom meeting with the women’s varsity track team that they were “disappointed and unhappy with the five women on the team who had brought the lawsuit.” The head coach of the team called the lawsuit a distraction and said she thought those students “were putting their individual interests above the team’s.” She further stated that team membership was not a right, which suggested to at least some of them that participation in the lawsuit could cause them to be removed from the varsity team or the program altogether.

After that, the students responded by adding two more claims to the case. They alleged that the school illegally retaliated against them for filing the complaint and they alleged that the school was denying them equal athletic treatment. By calling attention to the five participants in the case during the Zoom meeting, the students alleged that the University caused them “embarrassment, humiliation, and anxiety solely because they had filed a Title IX lawsuit.” They also alleged that the comments during the meeting made other team members scared to pursue Title IX claims or to assist with the case and they presented evidence to back up this fear. Several students told the claimants that they had planned to join the lawsuit but now were glad they had not because of the coach’s comments. The students argued that the University’s actions potentially had a “chilling effect” on other students’ willingness to enforce their Title IX rights.

Some Students’ Claims for Injunctive and Declaratory Relief Declared Moot But Claims for Damages Can Continue

The school claimed that many of the students lacked standing to make particular claims. While the Court decisively dismissed the claim on behalf of students who graduated or transferred before the original complaint was filed, the judge ruled that students had standing to move forward with many other claims. Interestingly, one student who had not received athletic financial aid was still found to have grounds to sue because she “was able, ready, and in a position to compete for a proportional pool of financial aid had it existed.

With regard to injunctive and declaratory relief, the students wanted the court to require SDSU to “create proportional pools of athletic financial aid” because that would have eliminated the problems suffered by the female athletes. However, the case was complicated by the fact that the school eliminated the rowing program the year after the lawsuit was filed, so students who had been on the rowing team would no longer be able to receive this financial aid if it had been created. However, the Court ruled that students on the track and field team had standing to pursue claims for “lost opportunities” in financial aid as well as injunctive and declaratory relief.

The Court reserved judgment about the standing to pursue injunctive and declaratory relief for the retaliation claim because further arguments regarding the claim were still in progress.

Persistence May Pay Off for SDSU Students

With so many of the school’s motions to dismiss now denied, the merits of the claim for damages for inequalities in financial aid and relief regarding retaliation will hopefully be addressed in court soon. The rulings on the merits of these issues could make it easier for other students to obtain relief in the future and hopefully will encourage other colleges and universities to be more proactive keeping financial aid awards equal and training coaches on the need to avoid actions that can be considered retaliatory.

Duffy Law Fights for Students’ Rights and Equality Under Title IX

At Duffy Law, our team is committed to upholding the ideals of Title IX and we work tirelessly to help students protect their rights under this critical legal scheme. If you believe your college or university has denied your Title IX rights in a manner that gives you options for relief, we encourage you to schedule a consultation to discuss the ways we may be able to help you enforce your legal rights.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.