the NCAA Peer-Review Committee conducted an audit of ISU and
determined that the University was not in substantial
conformity regarding gender equity as it had no written plan to
achieve gender equity in place two years after the completion
of the Report.
After consideration of various alternatives, ISU's Department
of Intercollegiate Athletics submitted a gender equity plan to
the University president and legal counsel in 1995 that
included a recommendation to eliminate men's wrestling and
soccer, as well as add women's soccer, men's roster management,
and full grants/aid for both men and women. This recommendation
was submitted to the Athletic Council on March 22, 1995 and
April 26, 1995, and the recommendation received its support.
This process culminated in the official decision in Spring
1995 to eliminate the men's intercollegiate soccer and
wrestling programs and add a women's intercollegiate soccer
program.*fn1 The parties dispute who actually made this
decision, but they agree that Linda Herman ("Herman"), ISU's
Associate Athletic Director, was actively involved in the
decision-making process and that the University president,
Thomas Wallace, officially adopted the plan in a memorandum
dated April 27, 1995. Accordingly, the men's wrestling and
soccer teams were eliminated as intercollegiate sports after
the 1994-95 season, and women's soccer was elevated to a
varsity level sport for the 1995-96 season.
Plaintiffs are present, former, and prospective students and
participants in intercollegiate athletic programs at ISU, some
of whom were promised full or partial scholarships in either
men's wrestling or soccer. On September 22, 1995, they filed an
eleven count complaint in this Court. The complaint was amended
once on November 13, 1995 and again on May 24, 1996. Following
a motion to dismiss, only four counts remain. Count I alleges
that Defendants discriminated on the basis of sex in
eliminating the men's wrestling and soccer programs in
violation of Title IX.*fn2 In Count IV, Plaintiffs assert a
violation of Title VI based on the purported denial of
opportunities for minority students to participate in
intercollegiate athletic programs on the basis of race. Count
IX purports to invoke the supplemental jurisdiction of the
Court to entertain state law claims for promissory estoppel and
fraudulent inducement. Finally, Count X alleges that Defendant
Jill Hutchison ("Hutchison"), ISU's women's basketball coach,
infringed the First Amendment rights of two Plaintiffs.
Defendants have moved for summary judgment on the remaining
counts of the Second Amended Complaint. This Order follows.
A motion for summary judgment will be granted where there are
no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The moving party has the responsibility of informing the Court
of portions of the record or affidavits that demonstrate the
absence of a triable issue. Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving
party may meet its burden of showing an absence of material
facts by demonstrating "that there is an absence of evidence to
support the non-moving party's case." Id. at 2553. Any doubt as
to the existence of a genuine issue for trial is resolved
against the moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986);
Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party
then has the burden of presenting specific facts to show that
there is a genuine issue of material fact. Matsushita Elec.
Indus.Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87,
106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Federal Rule of
Civil Procedure 56(e) requires the non-moving party to go
beyond the pleadings and produce evidence of a genuine issue
for trial. Celotex Corp., 106 S.Ct. at 2553. This Court must
then determine whether there is a need for trial — whether, in
other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because
they may be reasonably resolved in favor of either party.
Anderson, 106 S.Ct. at 2511.
I. Title IX Claim
Title IX of the Education Amendments of 1972 prohibits
discrimination on the basis of sex in educational programs and
activities which receive federal funding. Mary M. v. North
Lawrence Community School Corp., 131 F.3d 1220, 1224 (7th Cir.
1997), cert. denied, ___ U.S. ___, 118 S.Ct. 2369, 141 L.Ed.2d
737 (1998). Specifically, the relevant portion of Title IX
No person in the United States shall, on the basis
of sex, be excluded from participation in, be
denied the benefits of, or be subjected to
discrimination under any education program or
activity receiving Federal financial assistance. .
20 U.S.C. § 1681(a).
In 1975, the Secretary of the Department of Health,
Education, and Welfare ("HEW") published regulations
implementing the provisions of Title IX with respect to
intercollegiate athletic activities. Kelley v. Board of
Trustees, 35 F.3d 265, 268 (7th Cir. 1994); 34 C.F.R. §
106.41(b). In doing so, the school must "provide equal athletic
opportunity for . . . both sexes." 34 C.F.R. § 106.41(c).
Equal athletic opportunity is to be evaluated according to a
list of ten factors:
(1) Whether the selection of sports and levels of
competition effectively accommodate the interests
and abilities of both sexes; (2) The provision of
equipment and supplies; (3) Scheduling of games
and practice times; (4) Travel and per diem
allowance; (5) Opportunity to receive coaching and
academic tutoring; (6) Assignment and compensation
of coaches and tutors; (7) Provision of locker
rooms, practice and competitive facilities; (8)
Provision of medical and training facilities and
services; (9) Provision of housing and dining
facilities and services; and (10) Publicity.
Id. However, "an institution may violate Title IX solely by
failing to accommodate effectively the interests and abilities
of student athletes of both sexes." Kelley, 35 F.3d at 268. A
HEW policy interpretation issued in 1979 provides three
benchmarks to determine when an institution has effectively
accommodated the interests of both male and female students: