Opinion
Civil No. 03-6462 (JRT/FLN).
July 15, 2004
Robert J. Gilbertson, Kathleen Anne Marron, Diane L. Simerson and Anne Huang, ROBINS KAPLAN MILLER CIRESI, Minneapolis, MN, for plaintiffs.
Lewis A Remele, Jr., Mark R. Whitmore and Carrie L. Hund, BASSFORD REMELE, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs, high school students who participate in girls' hockey, brought this lawsuit against the Minnesota State High School League ("the League") alleging that its administration of the girls' state hockey tournament is not substantially equal to its administration of the boys' state hockey tournament, and that such inequity violates Title IX, 20 U.S.C. § 1681(a), its Minnesota equivalent, Minn. Stat. § 121A.04, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Plaintiffs request an injunction requiring the League to move the girls' tournament to the Xcel Energy Center ("Xcel"), where the boys' tournament is held. Defendant moves for summary judgment, arguing that there is no legally sufficient basis for granting plaintiffs' requested injunction. For the reasons discussed below, the Court denies defendant's motion for summary judgment.
FACTUAL BACKGROUND
The League began sponsoring girls' hockey in 1994 and held its first state tournament in February of 1995 at Aldrich Arena in Maplewood, Minnesota. Aldrich is used for high school hockey league and play-off games and is also open to the public for recreational skating. Because attendance at that tournament exceeded Aldrich's capacity of 3,400, the League sought a new venue for the 1996 tournament. From 1996 to 2002, the State Fair Coliseum hosted the girls' tournament. The Coliseum, which offered a 5,200 seating capacity, was built in 1951 to host horse shows and livestock judging. Because it was not originally designed as a hockey arena, the spectator seating is approximately 10 feet from the ice. Conversely, in a standard hockey arena fans sit quite close to the ice, where they are able to generate excitement by pounding on the boards and cheering.
In 2000, the Office for Civil Rights ("OCR") received a discrimination complaint regarding the location of the girls' tournament and opened an investigation. In response to the investigation, the League explored alternative sites, including Mariucci Arena at the University of Minnesota. At this time, the University was building Ridder Arena specifically for its women's hockey team. The League requested permission from OCR to continue holding the girls' tournament at the Coliseum until construction was completed on Ridder. Both the 2001 and 2002 tournaments were held at the Coliseum, after the State Fair made some improvements to the facility. In 2002, twelve teams participated and a total of 15,551 people attended the tournament.
Since 1979, the Department of Education, acting through the Office for Civil Rights, has been the agency charged with administering Title IX. See Pub.L. No. 96-88, § 210 (1979) (codified at 20 U.S.C. § 3401-3510 (2000)).
During these same years, the boys' hockey tournament, which drew between 106,307 and 120,133 total fans, was held in the St. Paul Civic Center (1995-98), Target Center (1999-2000), and Xcel (2001-present). Xcel is home to Minnesota's National Hockey League team, the Minnesota Wild, and has been called one of the nation's finest hockey arenas.
In 2001, the League sent a request for proposal ("RFP") to potential hosts of several high school tournaments, including girls' hockey. Bids were solicited for eight different tournaments to be held between Fall 2003 and Winter 2008. The RFP sought a venue with a seating capacity of 4,000 for the girls' tournament. The University of Minnesota submitted a bid for the girls' tournament to use Ridder Arena. Xcel did not submit a bid for girls' hockey, but did bid for the girls' dance team tournament, which Xcel had hosted in the past. The League scheduled the dance team competition for the same dates as the girls' hockey tournament.
The League ultimately accepted the bid for Ridder Arena despite its 2,700-3,200 seating capacity, which is below both the requested 4,000 and below Aldrich's capacity of 3,400. The League argues that Ridder's proposal is consistent with the RFP, which actually specified 4,000 per session. The League reasons that since there are two games per session, Ridder's capacity is actually in the requested range. In contrast to Ridder's relatively small capacity, Xcel has a seating capacity of 17,759, which may be reduced to 9,295 by closing off the upper level. Some of the League's tournaments use the lower bowl option, including Class A boys' hockey.
Plaintiffs point to several additional differences between the facilities. Xcel is home to Minnesota's professional hockey team, has padded stadium seating, and employs advanced technologies such as a large, full-color scoreboard and closed-circuit televisions in concession areas and suites. Ridder is home to the University of Minnesota's women's hockey team, has unpadded stadium seating and bench seating, and does not have a scoreboard capable of video-replay. The locker rooms are also distinguishable. Xcel's locker rooms average nearly double the size of Ridder's, are carpeted, and include full shower/restroom facilities. At Ridder, some locker rooms are shared, restrooms are shared, and some teams must use locker rooms at nearby Mariucci Arena. There are also differences in publicity, parking availability, and proximity to local attractions, hotels, and restaurants.
In December 2002, OCR notified the League that it had closed its monitoring of the case. OCR had toured both Ridder and Xcel and summarized its findings, concluding that Ridder was an adequate venue for the girls' hockey tournament and satisfied the League's commitment to resolve the discrimination complaint. Plaintiffs contend that those findings are based on errors of fact and an incomplete investigation. For example, OCR's comparison was based on availability of 12,000 parking spaces near Ridder, but fewer than 5,000 spaces are actually available within five blocks of that arena. Plaintiffs also allege that OCR misapplied its Title IX policy interpretation — Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413 (Dec. 11, 1979).
The Minnesota Department of Human Rights ("the Department") also received a complaint and began an investigation, but ultimately dismissed the charges. The Department based its decision on the fact that Xcel had not bid to host the girls' hockey tournament.
PROCEDURAL HISTORY
Late in 2003, United States District Judge Paul A. Magnuson denied plaintiffs' request for a preliminary injunction to force the League to hold the 2004 tournament at Xcel. At the time of the Court's ruling, the tournament was only a few months away. Mason ex rel. Mason v. Minnesota State High School League, Slip Copy, 2003 WL 23109685 (D. Minn. Dec. 30, 2003). Judge Magnuson determined that, at that time, plaintiffs had failed to establish a likelihood of success on the merits. Id. at *2. Although plaintiffs' preliminary injunction request included all subsequent tournaments as well as the 2004 tournament, the Court expressly ruled only on the injunction for the 2004 tournament. Id. at *3.
Alternatively, the Court found that plaintiffs' likelihood of success was not established because Xcel was not a party to the litigation. Id. Judge Magnuson also noted that "as girls' ice hockey gains in popularity in Minnesota, there will come a time when the differences in seating capacities may amount to illegal discrimination." Id.
The instant motion presents a different calculus of considerations. Here, defendant moves for judgment as a matter of law against plaintiffs' request for a permanent injunction. While the legal standard for both permanent and preliminary injunctions is essentially the same, United States v. Green Acres Enters., 86 F.3d 130, 132-33 (8th Cir. 1996), a fact-finder's analysis of the factors may be different when considering a single year than when considering multiple years or permanence. In addition, Judge Magnuson's concern about the immanency of the next tournament is not a factor. Judge Magnuson heard arguments just a few months before the 2004 tournament, compelling consideration of the burdens that a move would place on the parties as well as the venues. Finally, of course, the burden in the instant motion lies with the movant. While plaintiffs were required to establish gender discrimination and its attendant harms for grant of a preliminary injunction, defendant here must show that there are no issues for trial.
ANALYSIS
I. Standard of ReviewRule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The moving party bears this burden, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and all reasonable inferences to be drawn from the record facts must be considered in the light most favorable to the nonmoving party, Vette Co. v. Aetna Casualty Surety Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The nonmoving party, however, may not rely solely on the pleadings, but must show that there is a genuine issue for trial. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
II. Legal Standard
A. Title IX, 20 U.S.C. § 1681(a) and Minn. Stat. § 121A.04
Title IX of the Education Act prohibits sex discrimination in any educational program or activity receiving federal funds. The regulations implementing Title IX provide:
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient [of federal funds], and no recipient shall provide any such athletics separately on such basis.34 C.F.R. § 106.41(a)
The regulations specify certain areas for consideration when determining whether athletics programs meet Title IX's requirements. Responsibility for interpretation and implementation of the Education Act is delegated to the Department of Education's Office for Civil Rights ("OCR"). See Chalenor v. Univ. of N.D., 291 F.3d 1042, 1045 (8th Cir. 2002) (discussing statutory and regulatory background of Title IX). That agency issued a policy interpretation in 1979, which is entitled to controlling deference. Chalenor, 291 F.3d at 1046-47.
The policy interpretation does not require identical treatment or opportunities if "the overall effect of any differences is negligible." Title IX of the Education Amendments, 44 Fed. Reg. 71,413 (Dec. 11, 1979). The program components must be "equal or equal in effect." Id.
Minnesota law similarly prohibits gender discrimination in athletics. Minn. Stat. § 121A.04. The statute lists several factors for determining whether equal opportunities for participation exist, including practice and competitive facilities. Minn. Stat. § 121A.04, subd. 2. Additionally, the statute requires that teams of the same sport must be "treated in a substantially equal manner." Minn. Stat. § 121A.04, subd. 3(c). The Minnesota Supreme Court has held that Minnesota law requires that "treatment of the separate teams must be as nearly equal as possible" and not "so substantially better than the other as to deny equal protection of the laws." Striebel v. Minn. State High Sch. League, 321 N.W.2d 400, 402 (Minn. 1982). B. Equal Protection Clause, Pursuant to 42 U.S.C. § 1983
To state an equal protection claim, plaintiffs must allege that defendant treats high school girls differently from high school boys. See United States v. Virginia, 518 U.S. 515, 532-33 (1996). After plaintiffs establish a gender classification, the burden shifts to defendant, who must justify the classification and show that it is "exceedingly persuasive." Id. Defendant
must show at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.Id. at 533 (citations omitted).
III. Application
Plaintiffs have satisfied their burden to survive summary judgment. The facts, as alleged by plaintiffs, raise questions as to whether the League treats the girls' ice hockey team in a manner "substantially equal" to that of the boys' team. Construing the facts in a light most favorable to plaintiffs, which the Court must do for purposes of this motion, defendant has not shown that the gender classification is "exceedingly persuasive," that the arenas are "equal or equal in effect," and that the "overall effect" of this difference is negligible.
The Court agrees with plaintiffs' contention that "[f]actual questions exist over whether the League is providing equal competitive facilities to the girls and boys hockey players." (Pl. Brief at 17.) Differences in treatment, according to OCR's policy interpretation, are permissible under Title IX only if the differences "not limit the potential for women's athletics events to rise in spectator appeal . . ." Title IX of the Education Amendments, 44 Fed. Reg. 71,413 (Dec. 11, 1979).
In Communities for Equity v. Michigan High School Athletic Ass'n, 178 F. Supp.2d 805 (W.D. Mich. 2001), the court found that the Association's decision to schedule some girls' sports in off-seasons was impermissible under the Fourteenth Amendment, Title IX, and Michigan law. The Association claimed that its scheduling scheme maximized opportunities for both genders by increasing the pool of available coaches and minimizing logistical problems (such as scheduling). The court recognized those objectives as important, but noted that only girls' sports were scheduled in off-seasons and held that such "discriminatory scheduling is not `substantially related' to the achievement of those asserted objectives." Id. at 850-51. The court found a violation of Title IX because the scheduling scheme affected the girls' availability and access to recruiters, denying girls benefits that boys' teams enjoyed. Id. at 822-23. The court emphasized that gender classifications may not be based on "overbroad generalizations about the talents, capacities, or preferences of males and females." Id. at 848.
Here, there is no dispute that the seating capacity of Ridder is less than that of Aldrich Arena, which was abandoned as a site for the girls' tournament in part because of insufficient seating capacity. Plaintiffs suggest that Xcel's lower bowl option may provide sufficient capacity for current attendance and room for growth while simultaneously addressing the League's concern of maintaining "an exciting, loud `state tournament atmosphere.'" (Pl. Brief at 18; Def. Brief at 24.) Notwithstanding this concern, the League holds other events at Xcel — such as girls' volleyball and dance team — that draw smaller or comparable crowds. Additionally, the League accommodates the smaller Class A boys' hockey tournament at Xcel by using the lower bowl option.
Although the OCR policy interpretation recognizes that crowd size may influence the allocation of resources to a particular team or event, it permits such differences only when it "does not limit the potential for women's athletic events to rise in spectator appeal." Title IX of the Education Amendments, 44 Fed. Reg. 71,413 (Dec. 11, 1979). The evidence presented on this record could lead a fact-finder to conclude that the capacity of Ridder impermissibly restricts the growth of girls' ice hockey. There is also a question whether the League's decision to hold the girls' tournament at Ridder is "substantially related" to its goal of maintaining a "state tournament atmosphere."
Plaintiffs have established a material fact dispute as to whether differences in seating, locker rooms, scoreboards, and variety of available concessions make Ridder impermissibly inferior to Xcel as a state hockey tournament venue. The parties do not dispute that Xcel, with its full-color scoreboard, private locker room facilities, and closed-circuit televisions, is more lavish than Ridder. Defendant, however, points out that Ridder offers benefits to the girls' team that are not available to the boys at Xcel, such as use of weight room and training room facilities and equipment. Ultimately, the question whether these differences constitute illegal gender discrimination is one for a factfinder.
Plaintiffs also point to Daniels v. School Board of Brevard County, 985 F. Supp. 1458 (M.D. Fla. 1997). That case involved allegations of disparities between the girls' softball fields and the boys' baseball fields, including significant differences in the quality of the bleachers, signs, and maintenance of the fields. While the baseball field had an electronic scoreboard and a batting cage, the softball field had neither of those amenities. The primary motivation for the lawsuit, however, was that the boys' fields had lighting and the girls' did not. The court found that the lack of lighting had a detrimental effect on the girls' team by limiting the flexibility of practice scheduling and eliminating the option of nighttime games, which have more of a "big league" feel than daytime games. This affected spectator attendance and enjoyment as well as parental involvement. Expressing concern that the disparities sent "a clear message to players, fellow students, teachers and the community . . . that girls' varsity softball is not as worthy as boys' varsity baseball." Id. at 1461.
Plaintiffs raise the question of what message the League's venue choices send to the female hockey players and their fans. Daniels found that the unequal softball and baseball fields communicated "that girls are not as important as boys." 985 F. Supp. at 1461. Although the inequalities in this case are distinguishable from those in Daniels, which involved a complete absence of some accommodations, a factual question exists as to whether the impact is similar. Plaintiffs' argument relies on subtle inferences that are more appropriately evaluated at trial than on a motion for summary judgment.
This case will be placed on the next available trial calendar.