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KELLEY v. BD. OF TRUSTEES OF UNIV.

September 1, 1993

WILLIAM M. KELLEY, ET AL., PLAINTIFFS,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McDADE, District Judge.

ORDER*fn1

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.

FACTS

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 members.

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 sports programs.

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 years.*fn3

Year 1990-91

Total       Men         %       Women       %
UG:       26,445     14,925    (56.00%)   11,520   (44.00%)
Sports:      558        421    (75.45%)      137   (24.55%)
      ...

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