7 F.4th 782
8th Cir.2021Background
- University of North Dakota discontinued its Division I women’s ice hockey program while retaining the men’s program; the women’s team was nationally competitive and a prominent campus sport.
- Former female players filed a putative class action under Title IX alleging sex discrimination based on the university’s failure to sponsor a women’s team after cutting the program.
- Plaintiffs relied on the Department of Education’s 1979 Policy Interpretation—specifically the Selection of Sports provision’s Contact Sports Clause—which states an institution “must” sponsor a team for the excluded sex in a contact sport if (1) opportunities for that sex were historically limited and (2) there is sufficient interest and ability to sustain a viable team.
- The district court dismissed for failure to state a claim, treating the agency’s three-part test (from the Levels of Competition provision) as the exclusive compliance route and finding the Contact Sports Clause inconsistent with the regulation.
- The Eighth Circuit reversed, holding the district court erred by applying the three-part test exclusively, concluding the Contact Sports Clause is a valid interpretive avenue under the 1979 Interpretation, and remanding for further factual development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1979 Selection of Sports / Contact Sports Clause allows a Title IX claim requiring an institution to sponsor a women’s team when it sponsors a men’s contact-sport team | The Contact Sports Clause mandates a women’s team where opportunities were historically limited and there is sufficient interest and ability | The agency’s later emphasis on the three-part test controls; plaintiffs must plead compliance with that test | Court: The Selection of Sports provision (Contact Sports Clause) is a valid, independent basis for a claim; district court erred by treating the three-part test as exclusive |
| Whether the Contact Sports Clause is inconsistent with the regulation’s Separate Teams Provision (34 C.F.R. §106.41(b)) | Clause fills a gap and explains when separate teams must be sponsored to effectively accommodate interests and abilities | Clause conflicts with the specific separate-teams rule and would render parts redundant | Court: Clause is logically consistent with the regulation and appropriately interprets the regulation’s gap; district court erred to the contrary |
| Whether subsequent agency clarifications (1996, 2003, 2010) abandoned the Contact Sports Clause or limited compliance to the three-part test | Plaintiffs: Clarifications address only participation-opportunity assessment and do not repeal the Contact Sports Clause | University: Clarifications show the agency effectively narrowed enforcement to the three-part test, so Contact Sports Clause is obsolete | Court: Clarifications are directed at participation-opportunity analysis and do not clearly abolish the Contact Sports Clause; issue requires remand and factual development; concurring opinions note uncertainty about agency abandonment and fair notice |
| Whether dismissal at pleading stage was proper (i.e., must plaintiffs negate affirmative defenses or plead the three-part test) | Plaintiffs: No; Rule 8 requires only sufficient factual allegations of the claim | University: Plaintiffs failed to plead required elements under the agency’s compliance framework | Court: Dismissal improper—plaintiffs were not required at pleading stage to negate affirmative defenses or reframe theory around the three-part test; remand for merits/factfinding |
Key Cases Cited
- Chalenor v. Univ. of N.D., 291 F.3d 1042 (8th Cir. 2002) (treating Department interpretation of Title IX athletics guidance as controlling on the three-part test issue)
- Mercer v. Duke Univ., 190 F.3d 643 (4th Cir. 1999) (analyzing interplay of §106.41(a) and (b) and how separate-teams language operates)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its own regulations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight accorded to agency interpretations based on their persuasive power)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and framework for Auer deference to agency regulatory interpretations)
- Cannon v. Univ. of Chi., 441 U.S. 677 (1979) (recognizing an implied private right of action under Title IX)
- Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (caution against reading texts to render provisions redundant)