Letter from the Editor in Chief – Another Compelling Issue of Title IX Alert
By Ellen J. Staurowsky, Ed.D., Ithaca College
Welcome to our Summer 2023 Edition of Title IX Alert (which can be subscribed to for free here.). In this edition we offer the opportunity to explore a series of Title IX athletics cases and developments that present ample opportunity for thought and reflection. In Madison Fisk et al. v. Board of Trustees of the California State University and San Diego State University, U.S. District Court Judge Todd W. Robinson allowed the case to proceed in April of 2023 on all three of the plaintiff’s claims, including equal athletic financial aid, equal treatment, and retaliation. This case is particularly noteworthy because it is the first in the nation according to plaintiffs’ attorneys at Bailey Glasser to establish that women athletes deprived of equal athletic financial aid can sue for damages.
Editor Holt Hackney examines a case brought by women ice hockey players who asserted that they would have played at the University of North Dakota if the sport had not been eliminated there (Emily Becker et al. v. North Dakota University System,2023). Plaintiffs encountered the challenge of establishing standing, with prospective and future athlete claims of injury being regarded as “conjectural or hypothetical”. As noted in the article, the standard for standing as applied in Pederson v. Louisiana State University served to distinguish between plaintiffs who were enrolled at an institution and were ready and able to compete on a team compared to plaintiffs in Becker who argued that their enrollment at the University of North Dakota was deterred by the lack of a women’s ice hockey team or had enrolled but left because there was no team.
Emily Houghton (Minnesota State University-Mankato) and Erica Zonder (Eastern Michigan University) break down U.S. District Court Judge Carlos Mendoza’s ruling in Navarro v. Florida International University. In this case, men rowers contested the demotion of their team from varsity to club status, alleging that men athletes at FIT were not being treated equally when compared to women athletes. This case is the first to deal with the question of whether esports is considered a sport under Title IX.
The Alert also features two cases at the high school level. The first is one written by Rob Romano (St. John’s University) involving allegations from a high school athletic director in Maryland that she was subjected to gender discrimination after being passed over twice for the position of head girls basketball coach by the Board of Education under Title VII, Title IX, and the Maryland Fair Employment Practices Act (Makia Staves v. The Board of Education of Prince George’s County (Maryland)). The District Court for the District of Maryland dismissed the athletic director’s claims, noting that the claims were not supported with evidence.
The second case involves a high school cheerleader who accused the head and assistant coaches of engaging in behavior that threatened her health and safety (Chloe Murphy v. Northside Independent School District, 2023). She allegedly was punished for being late to practice and required to work out in extreme heat, resulting in her week-long hospitalization for diagnosed conditions including severe dehydration, damaged muscles in her legs, kidney damage, as well as an autoimmune disorder known as Rhabdomyolysis. Gina McKlveen explains why a second amended complaint was dismissed by the United States District Court for the Western District of Texas on grounds that the amended complaint suffered from the same deficiencies that existed in the first. Murphy’s alleged due process and Title IX claims were found to be conclusory and that Murphy was unable to establish that her constitutional rights had been violated.
Two of the articles in this issue deal with evolving regulations under the Biden Administration. Susan D. Friedfel, Monica H. Khetarpal, Carol R. Ashley, and Mallory H. Gantt of Jackson Lewis provide a summary of the proposed new Title IX regulations pertaining to trans gender athletes currently under consideration by the U.S. Department of Education. The summary itself provides a faithful account of the proposed new regulations, which have drawn more than 156,000 comments since the Department of Education posted them in draft form on April 23, 2023. Collin Williams, of New Era ADR, touches upon those proposed new regulations as well, noting that if approved they would invalidate any law preventing transgender or non-binary athletes from participating on teams that align with their gender identity. Williams also focuses on proposed amendments to the handling of sexual assault cases on college campuses, including returning to a preponderance of the evidence standard; elimination of live hearings; and allowing for an informal resolution process before filing a formal complaint.
Read on my friends.