Fisk v. Bd. of Trs. of the Cal. State Univ.

1

MADISON FISK, RAQUEL CASTRO, GRETA VISS, CLARE BOTTERILL, MAYA BROSCH, HELEN BAUER, CARINA CLARK, NATALIE FIGUEROA, ERICA GROTEGEER, KAITLIN HERI, OLIVIA PETRINE, AISHA WATT, KAMRYN WHITWORTH, SARA ABSTEN, ELEANOR DAVIES, ALEXA DIETZ, and LARISA SULCS, individually and on behalf of all those similarly situated, Plaintiffs, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY and SAN DIEGO STATE UNIVERSITY, Defendants.

No. 22-CV-173 TWR (MSB)

United States District Court, S.D. California

April 12, 2023

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COUNTS I AND III OF PLAINTIFFS' SECOND AMENDED COMPLAINT

(ECF No. 42)

Honorable Todd W. Robinson United States District Judge

Presently before the Court is the Motion to Dismiss Counts I and III of Plaintiffs' Second Amended Complaint (ECF No. 42 “Mot.”) filed by Defendants the Board of Trustees of the California State University and San Diego State University (collectively “SDSU”),^[1] along with Plaintiffs' Opposition to (ECF No. 45, “Opp'n”) and Defendants' Reply in Support of (ECF No. 46, “Reply”) the Motion. The Court held a hearing on March 2, 2023. (See ECF No. 47.) Having carefully considered the Parties' arguments, the Second Amended Complaint (ECF No. 41, “SAC”), and the relevant law, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Dismiss.

BACKGROUND

I. Factual Background^[2]

Plaintiffs, “past and current female varsity student-athletes at SDSU,” initiated this lawsuit against Defendants on February 7, 2022, alleging Defendants, who receive federal funding, have engaged in intentional discrimination based on sex in its athletics programs in violation in Title IX. (SAC ¶¶ 1, 17, 187-88, 223); see also 20 U.S.C. §§ 1681, 1687. Plaintiffs specifically claim SDSU has violated Title IX and its guiding regulations by “depriving its female varsity student-athletes of equal athletic financial aid, denying them equal athletic benefits and treatment, and retaliating against them because some of them sued SDSU for violating Title IX.” (SAC ¶ 1.)

A. Disproportionate Financial Aid

There are seventeen named Plaintiffs in this action, and they seek to represent a class of current and former SDSU female student-athletes whom they allege have been harmed by SDSU's discrimination against female student-athletes. (SAC ¶¶ 46-180, 335-36.) The named Plaintiff, the sport each plays or played, and the total amount of athletic financial aid each received is listed below.

Plaintiff[3]
Sport[4]/Current Year in
              School[5]
Total Aid Received (Specific Years)

Madison Fisk*

              Rowing/Grad. May ‘22
            
              $28,200
            

              Raquel Castro
            
              Rowing/Sr.
            
              $3,200
            

              Greta Viss
            
              Rowing/Grad. Yr. unknown
            
              $24,000 (Fr. &Soph.)
            

              Clare Botterill
            
              Rowing/Sr.
            
              $38,000 (Jr.)
            

              Maya Brosch+
              T&F/Grad. '21
            
              $19,640
            

              Olivia Petrine
            
              Rowing/Jr.
            
              $800 (while athlete) + $800 (afterrowing team was
              eliminated)
            

              Helen Bauer*
            
              Rowing/Grad. May ‘22
            
              $30,000 (Fr. & Soph.)
            

              Carina Clark*A
              T&F/Grad. May ‘22
            
              $800 (Sr.)
            

              Natalie Figueroa
            
              Rowing/Sr.
            
              $0
            

              Erica GrotegeerA
              T&F/Sr.
            
              $37,879
            

              Kaitlin Heri*A
              T&F/Grad. May ‘22
            
              $64,600
            

              Aisha WattA
              T&F/Sr.
            
              $14,200 + Will receive $9,600 for second semester of
              2022-2023 school year-

              Karnryn Whitworth+
              Rowing/Grad. ‘21
            
              $13,200
            

              Sara Absten*A
              T&F/Grad. May ‘22
            
              “Partial” /
              “Fluctuated”
            

              Eleanor Davies+
              Rowing/Soph. (Transferred Jan ‘22)
            
              $22,500
            

              Alexa Dietz*
            
              Rowing/Grad. May ‘22
            
              $18,400
            

              Larisa Sulcs
            
              Rowing/Sr.
            
              $22,800 (Fr. & Soph.)
            

(Id. ¶¶ 46-47, 49, 53-54, 56, 60-61, 63, 67-68, 70, 74-76, 80-81, 83, 87-88, 90, 94-95, 97, 105-06, 108, 112-13, 115, 123-24, 126, 134-35, 137, 145-46, 148, 152-53, 155, 163-65, 169-71, 175-77.)

As relevant to the instant Motion, Plaintiffs allege that they “were and are eligible for athletic financial aid up to and including a full scholarship, a cost-of-living stipend, summer aid, fifth-year aid, and NCAA Special Assistance Funds if appropriate.” (Id. ¶ 18.) But “SDSU has not paid its female varsity student-athletes equal athletic financial aid for over a decade,” even though SDSU can provide athletic financial aid at any point during an academic year and is thus able to correct any discriminatory allocation at any point. (Id. ¶¶ 2, 238-39.) The cost of attendance at SDSU varies for in-state and out-of-state residents: between 2018 and 2022, the in-state cost was $28,142 per year and the out-of-state cost was $39,230 per year. (Id. ¶¶ 19-20.)

In terms of scholarships, the NCAA “does not impose a limit on the dollar amount of aid that can be offered for any sport. Instead, the NCAA limits the number of scholarships that may be awarded for each sport.” (Id. ¶ 21.) “[H]ead-count sports must award full athletic scholarships on a per-athlete basis,” whereas “equivalency sports may split up to a full athletic scholarship among many athletes.” (Id. ¶ 22.) For example, before SDSU eliminated its women's rowing team, that team was permitted to have the equivalent of twenty athletic scholarships awarded to the female rowers-the women's rowing coach was typically given a total dollar amount of athletic financial aid equivalent to fifteen instate scholarships and five out-of-state scholarships.^[6] (Id. ¶¶ 25-26.) Some female rowers received partial athletic scholarships, and some received full athletic scholarships under the dollar cap imposed by SDSU. (Id. ¶ 27.) But “[n]one of the Plaintiffs received all the athletic financial aid for which she was eligible.” (Id. ¶ 30.) And each Plaintiff who is a current student-athlete "has athletic eligibility remaining and intends to continue to participate as a varsity student-athlete until she has graduated and/or exhausted her eligibility to participate in intercollegiate varsity sports." (Id. *[ 41.)

Plaintiffs summarize SDSU's grant of athletic aid among male and female student-athletes over the last decade^[7] via data "verified as accurate by SDSU to the federal government pursuant to the Equity in Athletics Disclosure Act (EADA),"^[8] (SAC f 228), as follows:

Year
Total # of Female Student Athletes
Total # of Male Student Athletes
% of Females
Female Aid Awarded
Male Aid Awarded
% of Aid Awarded to Females
Amount of Aid SDSU Deprived Female Students
              Athletes

2010

269

222

54.79%

$2,776,419.00

$2,708,301.00

50.62%

$228,447.97

2011

302

235

56.24%

$3,169,134.00

$3,073,774.00

50.76%

$341,775.15

2012

312

231

57.46%

$3,586,299.00

$3,181,040.00

52.99%

$302,116.78

2013

322

239

57.40%

$3,813,759.00

$3,482,941.00

52.27%

$374,364.71

2014

310

236

56.78%

$3,943,771.00

$3,685,045.00

51.70%

$387,608.05

2015

304

230

56.93%

$4,176,824.00

$3,914,582.00

51.62%

$429,519.49

2016

315

226

58.23%

$4,426,056.00

$4,155,385.00

51.58%

$570,531.64

2017

303

216

58.38%

$4,527,853.00

$4,325,925.00

51.14%

$641,115.66

2018

316

221

58.85%

$4,580,663.00

$4,604,510.00

49.87%

$824,392.25

2019

315

-

58.12%

-

-

50.57%

$694,267.88

2020^[9]

305

-

57.22%

-

-

50.64%

$571,692.82

(Id. ¶¶ 228-333.)

Plaintiffs allege that between 2018 and 2020, SDSU female student-athletes received over $1.2 million less in athletic financial aid, and the male student-athletes received over $1.2 million more, than they would have “if SDSU had granted aid in proportion to the number of students of each sex participating in intercollegiate athletics.” (Id. ¶ 234.)

B. Retaliatory Conduct

On February 16, 2022, nine days after Plaintiffs filed this lawsuit, SDSU's women's track and field team held a recorded Zoom meeting.^[10] (SAC ¶ 298.) Five of the named Plaintiffs were present, along with most of the other members of the track and field team. (Id. ¶ 299.)

At the meeting, before discussing their upcoming competition, SDSU “told all of the team members that it was disappointed and unhappy with the five women on the team who had brought the Title IX lawsuit against the school.” (Id. ¶ 300.) Head coach Sheila Burrell, an SDSU employee, specifically stated she was disappointed with those five members of the team because they were involved with the lawsuit and “were putting their individual interests above the team's.” (Id. ¶¶ 301-03.) Burrell also called the Title IX lawsuit a distraction and stated that “being a member of the varsity women's track and [field] teams is not a right, suggesting to some of the women that those who participated in or assisted with the lawsuit could be removed from the team.” (Id. ¶¶ 304-05.)

Plaintiffs allege SDSU implicitly threatened those who participated or assisted in the lawsuit with removal from the team. (Id. ¶ 306.)...