A U.S. District Court in California chose not to grant a preliminary injunction late Wednesday that would have barred Fresno State from cutting women’s lacrosse or any other women’s team, handing the university a temporary victory as it tries to stabilize an athletics department hit hard by declining revenues due to the coronavirus pandemic.
“We are of course disappointed,” said Arthur H. Bryant, of the firm Bailey Glasser, LLP, who is representing five women’s lacrosse student-athletes who saw their sport and two other eliminated in October.
As reported by The Fresno Bee, the court's 34-page ruling took issue with a report from consultant Donna Lopiano, which “relies heavily on speculation and is sometimes at odds with established Title IX protocols with respect to participation counts and roster management, does not help plaintiffs carry their burden on this motion.”
The court also found the plaintiffs’ analysis of the Title IX counts improperly combined data from two different years and failed to take growth in female enrollment into account in estimating participation opportunities.
The court ultimately denied the plaintiffs’ motion as to the effective accommodation claim “because the evidence currently before the court from Fresno State’s 2018-19 (Equity in Athletics Data Anaysis) filings and 2019-20 Title IX counts indicate that Fresno State will satisfy the substantial proportionality standard in Prong One of the Three-Part Test when cuts to men’s wrestling, men’s tennis and women’s lacrosse take effect in the coming 2021-22 academic year.
“Additional evidence regarding that issue, in the form of NCAA squad lists and NCAA hour limitation records, are likely to become available in the course of discovery and, thus, this denial is without prejudice,” the court ruled.
However, in what is being called the split-decision aspect of the ruling, the court also granted a motion to the plaintiffs' equal-treatment claim, because “plaintiffs have set forth uncontroverted evidence that inequalities in the treatment of women’s lacrosse in comparison to men’s teams at Fresno State” are substantial and deprive members of the women’s lacrosse team equal athletic opportunity.
Fresno State did not counter any of those claims in its defendants’ brief in opposition to plaintiffs’ motion for a preliminary injunction, The Fresno Bee reported.
The court ruled that for the remainder of a 2020-21 academic year that ends May 21, Fresno State must provide a dedicated locker room and practice space for the women’s lacrosse team; equip the women’s lacrosse team for competition; and provide it with funding and benefits on par with the average in each respect provided to its existing athletics teams.
But the athletes' hopes of having their sport reinstated by court order been dealt a blow — for now.
“This is disappointing, but it is just the first step in a long road to prove Fresno State is discriminating against its women athletes and potential athletes,” Bryant said.
“We are convinced it is. The judge didn’t hold otherwise. He simply said that based on the numbers that are currently available he wasn’t convinced Fresno State was going to be in violation when the women’s lacrosse team was eliminated. We think that’s wrong, but we’re going to have to prove it.”
