A first-in-the-nation court ruling says female student-athletes deprived of equal athletic financial aid can sue their schools for damages.
Update Oct. 12 at 8:30 a.m. PT: U.S. District Court Judge Todd W. Robinson affirmed that all 17 female student-athletes who filed the precedent-setting Title IX sex discrimination class action against San Diego State University can sue the school for retaliating against them for asserting their rights. The court had previously ruled only five could sue.
“The Court has now made clear that all of the women athletes will be able to hold SDSU accountable for retaliating against them and interfering with their ability to prove their claims,” said Bailey Glasser partner and Title IX Team Leader Arthur Bryant, lead counsel for the women. “Title IX is the law. It prohibits sex discrimination. SDSU should be complying with the law, not retaliating against its female athletes for trying to make it do so.”
Robinson also ruled on Sept. 15 to reject an argument from the university that tried to get the case dismissed on the grounds that the women suing are no longer student-athletes. (The women were student-athletes when the case was filed.)
“This critical ruling confirms what we’ve said all along—these brave women deserve their day in court to hold SDSU accountable for its past discriminatory behavior and to prevent it from engaging in discriminatory behavior in the future,” said Joshua Hammack of Bailey Glasser, LLP in Washington, DC, who took the lead in briefing and arguing the issues. “This order ensures Plaintiffs can pursue both goals in court, which is an important victory for them, for justice, and for women everywhere.”
U.S. District Court Judge Todd W. Robinson ruled on April 13 that the female student-athletes suing San Diego State University (SDSU) for violating Title IX can pursue claims for equal athletic financial aid, equal treatment and retaliation. The decision is the first in the nation to hold that female student-athletes deprived of equal athletic financial aid can sue their schools for damages.
“This is a major step forward for women and against sex discrimination at SDSU and nationwide,” said lead counsel Arthur H. Bryant of Bailey & Glasser in Oakland. “SDSU has been cheating its female student-athletes out of hundreds of thousands of dollars in equal athletic financial aid each year. It is giving its male student-athletes far better treatment than its female student-athletes. And it blatantly retaliated against its female student-athletes for standing up for their rights. Now, it can be held accountable.”
The class-action lawsuit alleges female student-athletes were given less scholarship support than the male athletes, received inferior treatment and benefits and were retaliated against when they protested against discrimination. Judge Robinson agreed their suit could go forward and went a step further—awarding the students the right to seek monetary damages.
Congress passed Title IX in 1972, but over 50 years later, approximately 90 percent of U.S. colleges and universities do not comply with the law’s requirements.
It is not difficult to see why. Congress charged the Office for Civil Rights (OCR) within the Department of Education with setting guidelines for gender equity and overseeing their implementation—but then consistently and woefully underfunded the agency, making it impossible for them to investigate all the complaints they received from across the entire country. At most, OCR considers the evidence and requires schools to enter into a program that may bring eventual compliance.
No school has ever lost a penny of federal funding due to non-compliance. With such a weak penalty history, schools violate Title IX with impunity, knowing that if they are caught, the worst outcome will be an agreement with OCR to reform over time.
The other avenue for redress of grievances is litigation. Here too, courts usually require non-compliant schools to enter into a program to improve the treatment of female athletes. Until the SDSU case, however, female athletes experiencing sex discrimination in athletics did not sue for damages but instead sued for injunctive relief—a court order directing a school to stop or reduce discriminatory practices. Now, we know they can sue for monetary damages.
This precedent is massively important, precisely because it flips the standard of impunity that non-compliant schools have relied upon. Now, schools have a clear, financial incentive to end discriminatory practices before they are sued.
Schools violate Title IX with impunity, knowing that if they are caught, the worst outcome will be an agreement with the Office for Civil Rights to reform over time.
The SDSU athletes could win significant damages. In 2018, women were 59 percent of intercollegiate athletes at the school but received only 50 percent of scholarship aid, for a shortfall of $824,392—or an average of $2,609 per female student athlete. Similar shortfalls applied to early and later years. A successful damages claim will approach $1 million a year.
And that’s just for one school. A recent report estimates 49 NCAA Division I Football Bowl Subdivision schools shortchanged women on scholarship dollars by a whopping $23.7 million in 2020-21.
On top of the scholarship damages, SDSU’s student athletes could potentially win damages for unequal treatment and benefits, for example:
- Many of the men on men’s teams receive four or more pairs of athletic shoes per season, while women receive only two or three pairs;
- As a rule, women’s teams have to plan their practice schedules around the priority given to men’s teams;
- For team travel, men receive per diems of $200 to $300, while women receive $75 to $100;
- Provision of locker rooms, tutoring services, medical and training services are notably different for men and women.
Although SDSU female athletes have only claimed damages for unequal scholarship dollars to date, the value of discriminatory provision of services and benefits can be reliably estimated and then made part of the money compensation female athletes receive.
The plaintiffs’ attorney Arthur Bryant has prosecuted more successful Title IX lawsuits than any other lawyer in the country. San Diego State University can anticipate that Bryant will push this case to achieve maximum potential damages for the female athletes. And all the while, the remaining 4,000 colleges and universities as well as high schools in the country will pay close attention.
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