United States District Court, Central District of Illinois, Peoria Division
September 1, 1993
WILLIAM M. KELLEY, ET AL., PLAINTIFFS,
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Plaintiffs' Motion for a Preliminary
Injunction (docket # 10); the Defendants' Motion to Dismiss
(docket # 6) and the Defendants' Motion for a Protective Order
(docket # 15). Pursuant to Rule 12(b)(6), the parties have
stipulated that the Motion to Dismiss must be converted into a
Rule 56 Motion for Summary Judgment because it presents matters
outside the pleadings.
Federal Rule 56(c) Summary Judgment is appropriate when there
remains no genuine issue of material fact upon which a
reasonable jury (or trier of fact) could find in favor of the
non-moving party, and the moving party is entitled to judgment
as a matter of law. "One of the principal purposes of the
summary judgment rule is to isolate and dispose of factually
unsupported claims or
defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317,
322-27, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986). Thus,
although the moving party on a motion for summary judgment is
responsible for demonstrating to the court why there is no
genuine issue of material fact, the non-moving party must go
beyond the face of the pleadings, affidavits, depositions,
answers to interrogatories, and admissions on file, to show
that a rational jury (or trier of fact) could return a verdict
in this party's favor. Celotex Corp. v. Catrett, 477 U.S. 317,
322-27, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106
S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106
S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Consequently, the
inquiry on summary judgment is whether the evidence presents a
sufficient disagreement to require submission to a jury, or
whether the evidence is so one-sided that one party must
prevail as a matter of law. Anderson, 477 U.S. at 251-52, 106
S.Ct. at 2511-12. Disputed facts are material when they might
affect the outcome of the suit. First Ind. Bank v. Baker,
957 F.2d 506, 507-08 (7th Cir. 1992). A metaphysical doubt will not
suffice. Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356.
Nonetheless, the Court must view all inferences to be drawn
from the facts in the light most favorable to the opposing
party. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10.
Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir.
1992). After reviewing the parties' briefs and hearing oral
arguments and testimony on the motions, the Court has made the
following findings of fact and conclusions of law. They are not
meant to be exhaustive.
The undisputed facts are as follows. The Court has
jurisdiction in this matter pursuant to Title 28 U.S.C. § 1331;
Title 28 U.S.C. § 1343(a)(3); Title 20 U.S.C. § 1681(a); Title
42 U.S.C. § 1983; and the Fourteenth Amendment to the United
States Constitution. Plaintiffs allege that Defendants
discriminated against them on the basis of sex by cutting the
men's swimming team, but not the women's swimming team, in
violation of Title IX, 20 U.S.C. § 1681. Plaintiffs also allege
that the University's action violated the equal protection
clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983,
and 42 U.S.C. § 1985(3).
Plaintiffs are males and members of the men's swimming team
at the University of Illinois. Plaintiffs Kelley, Mulloy, and
Thompson will be seniors in the 1993-94 academic year;
Plaintiff Sims will be a junior in the 1993-94 academic year;
and Plaintiffs Rossi, Juiris, Gramm and Gargar will be
sophomores in the 1993-94 academic year.
Defendant Board of Trustees of the University of Illinois is
a subdivision of the State of Illinois which operates an
educational program receiving federal financial assistance at
its Urbana-Champaign campus. Defendant Mortin W. Weir is
Chancellor of the University of Illinois' Urbana-Champaign
campus and acted in his individual capacity under color of law
during the occurrences complained of herein.*fn2 Defendant
Ronald E. Guenther is Director of Intercollegiate Athletics at
the University of Illinois' Urbana-Champaign campus and acted
in his individual capacity under color of law during the
occurrences complained of herein. Defendant Karol Kahrs is
Associate Athletic Director and Director of Women's Athletics
at the University of Illinois' Urbana-Champaign campus and
acted in her individual capacity under color of state law
during the occurrences complained of herein.
The University of Illinois has had varsity men's swimming
teams since 1911, and in the 1992-93 academic year 11
scholarships were awarded among 28 male swimming team members.
The University of Illinois has had varsity women's swimming
teams since at least 1982, and in the 1992-93 academic year 14
scholarships were awarded among 18 female swimming team
The men's varsity swimming season for the academic year
1993-94 was scheduled to begin
in September 1993. On May 7, 1993, however, the University of
Illinois announced that it intended to eliminate the varsity
programs for men's swimming and fencing and men and women's
diving, effective July 1, 1993. The announcement stated that
"budget constraints" were the primary reason for the Athletic
Board's decision. Nonetheless, the University indicated that it
intended to honor the financial commitments to the student
athletes on scholarship who were affected by the cuts.
The Court finds that financial and budgetary constraints were
the primary considerations involved in the University's
decision to eliminate the men's swimming team, but that other
considerations, such as compliance with Title IX and the
"gender equity" policy of the Big Ten Conference, also played
a role. The University of Illinois is a member of the Big Ten
Conference, a group of 11 universities who associate together
for the purpose of competing in intercollegiate athletics. The
Big Ten Conference promulgated what is referred to as a "gender
equity" policy requiring member institutions to accept a
percentage factor of 60 percent for men and 40 percent for
women as the goal for male-female participation in varsity
Affidavits submitted by Patricia Askew, Director of the
Office of Admissions and Records, and Rick Allen, Director of
Compliance for the Division of Intercollegiate Athletics at the
University of Illinois at Urbana-Champaign, indicate that the
following statistics represent the numerical composition of the
undergraduate student population of men and women compared to
the numerical composition of the men and women participating in
intercollegiate sports during the last three academic
Total Men % Women %
UG: 26,445 14,925 (56.00%) 11,520 (44.00%)
Sports: 558 421 (75.45%) 137 (24.55%)
Total Men % Women %
UG: 26,366 14,787 (56.00%) 11,579 (44.00%)
Sports: 550 413 (75.09%) 137 (24.91%)
Total Men % Women %
UG: 25,846 14,427 (56.00%) 11,419 (44.00%)
Sports: 474 363 (76.58%) 111 (23.42%)
These statistics show that during the past three school years
student enrollment and total sports participation by men and
women went down at the University of Illinois campus at
Urbana-Champaign. Interesting enough, though, for the academic
year 1992-93, men's participation went up by more than a
percentage point to 76.58 percent, while women's participation
went down by more than a percentage point to 23.42 percent.
In Count I, Plaintiffs present a legal question which has not
been directly decided by
any court in this country to date. Although gender
discrimination cases have been filed by female athletes against
universities under Title IX, this is the first case known to
the Court which has been brought against a university by men
alleging gender discrimination in violation of Title IX.
Resolution of this question has been difficult. The
difficulty arises because, in the context of athletics, the
plain meaning of Title IX has been limited by the implementing
regulations, the policy interpretation of those regulations and
the case law interpreting each of these sources. See Cohen v.
Brown University, 991 F.2d 888 (1st Cir. 1993); Roberts v.
Colorado State, 998 F.2d 824 (10th Cir. 1993); Cook v. Colgate
University, 992 F.2d 17 (2d Cir. 1993); Favia v. Indiana
University of Pennsylvania, 812 F. Supp. 578 (W.D.Penn. 1993);
34 C.F.R. § 106.41 (1993); 44 Fed.Reg. 71413-23 (1979). Quite
frankly, these interpretations have converted Title IX from a
statute which prohibits discrimination on the basis of sex
(defined as the elimination of or exclusion from participation
opportunities), into a statute which provides "equal
opportunity for members of both sexes."*fn4
"Equal opportunity," however, does not necessarily require
"strict numerical equality between the gender balance of a
college's athletic program and the gender balance of its
student body." Cohen v. Brown University, 991 F.2d 888, 894
(1st Cir. 1993). In fact, as interpreted and enforced by the
regulations, the University may provide "equal opportunity" to
members of each gender in one of three ways: (1) "the
participation opportunities for male and female students are in
substantially proportionate numbers to their respective
enrollments;" (2) the "interests and abilities" of the sex
which is underrepresented with respect to their undergraduate
enrollment are "fully and effectively accommodated by the
present program;" or (3) the underrepresented gender's
interests and abilities will be accommodated by "expansion" of
the athletic program. 44 Fed.Reg. at 71418.
Program expansion was not the objective in this case; rather,
financial constraints motivated and required the University of
Illinois to cut programs. Even if the University's decision
were not based on financial or budgetary reasons, but made
solely to move closer to substantial proportionality (that is,
to increase participation opportunities for women to a level
equivalent with the percentage of female undergraduate
enrollees), the failure to cut women's programs would still be
countenanced by Title IX. As stated by the First Circuit Court
of Appeals in Cohen v. Brown, 991 F.2d 888, 898, footnote 15:
If in the course of adding and upgrading teams, a
university attains gender parity between its
athletic program and its student body, it meets
the first benchmark of the accommodation test.
But, Title IX does not require that a school pour
ever-increasing sums into its athletic
If a university prefers to take another route, it
can also bring itself into compliance with the
first benchmark of the accommodation test by
subtraction and downgrading, that is, by reducing
opportunities for the overrepresented gender while
keeping opportunities stable for the
underrepresented gender (or reducing them to a
much lesser extent).
Consequently, due to financial constraints and the need to
comply with Title IX, the University chose to drop the men's
swimming team without dropping the women's swimming team,
because men's participation in athletics was more than
substantially proportionate to their enrollment, but women's
participation was not.*fn5
Under Title IX, the University could cut men's programs
without violating the statute because men's interests and
abilities are presumptively met when substantial
proportionality exists. Conversely, women's programs could not
be cut because their level of participation was already
disproportionate to their respective enrollment, and thus the
University would be vulnerable to a finding of noncompliance
with Title IX if the University failed to "fully and
effectively accommodate [women's] interests and
abilities."*fn6 See 44 Fed.Reg. at 71418.
In other words, according to the regulations and the case
law, members of the men's swimming team have not been
discriminated against under Title IX. Even though elimination
of their program excluded them from varsity participation as
individuals, the percentage of all men participating in the
varsity program is more than "substantially proportionate" to
the percentage of men represented by the undergraduate
population. This status did not change following the cut.
Cohen v. Brown University, 991 F.2d 888, 906 (1st Cir. 1993);
Roberts n Colorado State, 998 F.2d 824 (10th Cir. 1993); Cook
v. Colgate University, 992 F.2d 17 (2d Cir. 1993); Favia v.
Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D.Penn.
1993). See also 44 Fed.Reg. at 71418.
Although the law might be interpreted differently, the Court
must give deference to regulations and interpretations
promulgated under the authority of Congress and existing case
law interpreting Title IX. Chevron U.S.A., Inc. v. Natural
Resources Defense Counsel, Inc., 467 U.S. 837, 844, 104 S.Ct.
2778, 2782, 81 L.Ed.2d 694 (1984). Accordingly, Plaintiffs'
claim under Title IX fails, and Defendants are entitled to
Summary Judgment in Count I.
Plaintiffs also raise equal protection arguments in Counts II
and III. Count II alleges that Defendants' decision to
eliminate the men's swimming team, but not the women's team,
created an illegal gender classification which denied
Plaintiffs' equal protection of the law under the Fourteenth
Amendment, in violation of 42 U.S.C. § 1983. Count III alleges
a conspiracy in violation of 42 U.S.C. § 1985(3) in that
Defendants, together with unnamed athletic directors and
associate athletic directors, conspired to deny Plaintiffs'
civil rights in violation of Title IX and the Fourteenth
To state an equal protection claim, a plaintiff must allege
in the pleadings that the government intentionally
discriminated against plaintiff by classifying him or her for
different treatment under the law than one similarly situated.
See J. Nowak & R. Rotunda, Constitutional Law § 14.2 at 570
(4th ed. 1991). To violate the equal protection clause, the
government must intentionally classify similarly situated
individuals for different treatment on the basis of an
impermissible characteristic, such as race, national origin, or
Gender classifications are subject to an "intermediate"
standard of scrutiny. To withstand constitutional challenge
under this standard, "classifications by gender must serve
important governmental objectives and must be substantially
related to achievement of those objectives." Craig v. Boren,
429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976),
rehearing denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574
"In limited circumstances, a gender based classification
favoring one sex can be justified if it intentionally and
directly assists members of the sex that is disproportionately
burdened." Mississippi University for Women v. Hogen,
458 U.S. 718, 728, 102 S.Ct. 3331, 3341, 73 L.Ed.2d 1090, 1100 (1982).
These classifications establish what is commonly referred to as
"reverse discrimination" and/or "affirmative action" for the
purpose of remedying historical discrimination.
In cases where men have sued alleging gender discrimination
under the Fourteenth Amendment, the Supreme Court has upheld
these classifications when they serve a compensatory, remedial
purpose of eradicating past discrimination against women, i.e.,
reversing the effects of laws which classified men for benefits
under the law and women for burdens. Mississippi University for
Women v. Hogen, 458 U.S. 718, 728, 102 S.Ct. 3331, 3341, 73
L.Ed.2d 1090, 1100 (1982), citing, Schlesinger v. Ballard,
419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Califano v.
Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977).
However, "the mere recitation of a benign, compensatory purpose
is not an automatic shield which protects against any inquiry
into the actual purposes underlying the statutory scheme."
Hogen, 458 U.S. at 728, 102 S.Ct. at 3338. State officials must
actually prove that women "lacked opportunities." Hogen, 458
U.S. at 729, 102 S.Ct. at 3338. Once this showing is made, the
officials must then satisfy the second prong of the
intermediate standard, establishing that the classification is
"substantially related" to the achievement of the remedial
Title IX, as interpreted by the Court, is designed to remedy
gender — discrimination against underrepresented athletes —
either men or women.*fn7 In this case, the underrepresented
athletes are women. Although the University's decision to
eliminate the men's swimming team rather than the women's
swimming team classifies men for different treatment than women
on the basis of gender, this action was taken in compliance
with Title IX. Compliance with Title IX serves a remedial
purpose which qualifies as an important state interest which is
substantially related to eradicating historical discrimination
against women in athletics at the University of Illinois.
Accordingly, the Court finds that the Defendants have not
violated the equal protection clause of the Fourteenth
Amendment. Therefore, Summary Judgment is granted on Count II
in favor of Defendants.
Plaintiffs cannot prevail in Count III under § 1985(3) unless
they can show an equal protection violation. For the reasons
stated above, the Court also grants summary judgment in favor
of Defendants on Count III.
The Court is not unsympathetic to the plight of members on
the men's swimming team and recognizes that Congress, in
enacting Title IX, probably never anticipated that it would
yield such draconian results. On the other hand, university
athletic programs are designed, in their purest intent, to
provide an education, coupled with equal access to athletic
opportunities for men and women — a
desirable result which had not been achieved prior to Title IX.
Plaintiffs' case has emotional appeal because it graphically
demonstrates the inherent unfairness of decisions which
classify and isolate one gender for burdens that the other
gender is not required to bear. Certainly it must be
acknowledged that the members of the men's swimming team are
innocent victims of Title IX's benevolent attempt to remedy the
effects of an historical deemphasis on athletic opportunities
for women. The Court sincerely sympathizes with the personal
loss felt by members of the men's swimming team while
recognizing the salutary effects of Title IX for women
athletes. Women have paid and continue to pay for
discriminatory actions and attitudes which have historically
excluded them from the athletic opportunities given to men, as
represented by current statistical disparities among athletes
in universities and colleges across the country. These are the
disparities Title IX, and this decision, seek to remedy.
Plaintiffs concede that not only does the University of
Illinois have a right to cut programs, but also that the men's
swimming team does not have a constitutional right to the
continuation of the swimming program. See Hawkins v. NCAA,
652 F. Supp. 602 (C.D.Ill. 1987). However, Plaintiffs are requesting
gender equity, or gender equality, in sharing the loss. This
seems a fair request but conflicts with the imperatives of
Title IX, which require that women, who have traditionally been
underrepresented in college athletics, be assured equal
athletic opportunities. To effectuate this legitimate
objective, a sharing of the burden by innocent parties is not
impermissible and is rather light in this case when we consider
the scope of the total men's athletic programs at the
University of Illinois and their disproportionate participation
in athletics as compared to their undergraduate enrollment. Cf.
Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct.
1251, 47 L.Ed.2d 444 (1976).
In summary, the Court grants Defendants' Motion for Summary
Judgment on Counts I, II, and III, rendering Plaintiffs' Motion
for a Preliminary Injunction and Defendants' Motion for a
Protective Order Moot. The Clerk of the Court is directed to
enter judgment in favor of Defendants and against Plaintiffs.
Each party is to bear their own costs. This case is terminated.