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Press Release from Bailey & Glasser
In the case’s second key ruling in the past month, U.S. District Court Judge Todd W. Robinson held yesterday that all the female student-athletes who filed the precedent-setting Title IX sex discrimination class action against San Diego State University can sue the school for retaliating against them for asserting their rights.
On April 12, 2023, the Court held the five Plaintiffs present on a Zoom meeting during which a coach made threatening remarks could sue for retaliation. At that time, however, it held the other twelve Plaintiffs could not. Yesterday, October 10, 2023, the Court amended its previous order and held that all seventeen Plaintiffs could pursue retaliation claims. It noted that SDSU’s actions allegedly “dissuaded some team members from joining the lawsuit or participating as witnesses,” which hampered all Plaintiffs’ “ability to proceed with their Title IX lawsuit without interference.” It ruled that all of the Plaintiffs could seek damages from SDSU for retaliation in the past and those who were enrolled at the school when the case was filed could seek a court order barring SDSU from retaliating in the future.
“The Court has now made clear that all of the women athletes will be able to hold SDSU accountable for retaliating against them and interfering with their ability to prove their claims,” said Bailey Glasser partner and Title IX Team Leader Arthur Bryant, lead counsel for the women. “Title IX is the law. It prohibits sex discrimination. SDSU should be complying with the law, not retaliating against its female athletes for trying to make it do so.”
“Our justice system depends on the simple point that litigants cannot intimidate or scare away potential witnesses,” said Bailey Glasser partner Joshua Hammack in Washington, D.C., who took the lead in briefing and arguing the issues. “SDSU tried to do exactly that, and the Court agreed all Plaintiffs deserve their day in court on the resulting retaliation claim.”
Title IX of the Education Amendments of 1972 prohibits all educational institutions that receive federal funds, including SDSU, from discriminating on the basis of sex. It requires schools to provide male and female student-athletes with equal participation opportunities, athletic financial aid, and treatment, and prohibits them from retaliating against anyone for challenging sex discrimination at the school. In the SDSU case, the women are suing for equal athletic financial aid, equal treatment, and retaliation.
Plaintiffs’ retaliation claims arise from the following facts: The lawsuit was filed on February 7, 2022, charging the school with depriving women of equal opportunities to compete for athletic financial aid. At that time, SDSU knew the women were preparing to add an equal treatment claim unless SDSU agreed to stop discriminating against female student-athletes.
Just over a week later, on February 16, 2022, members of the women’s varsity track and field team were called to an impromptu Zoom meeting. At the start of that meeting, SDSU made clear to the five Plaintiffs on the call and nearly forty of their teammates that it was disappointed with the team members who had filed the Title IX suit and cautioned the team that athletics participation was a privilege, not a right, implying that those who assisted with the lawsuit could be removed from the team. This threat made some members of the team wary of joining in the case or helping the women who had filed suit prove their claims. When Plaintiffs asked SDSU to take specific steps to minimize the harm these comments caused, SDSU refused.
Plaintiffs in the case are former SDSU women’s rowing and track and field team members Madison Fisk, Raquel Castro, Greta Viss, Clare Botterill, Maya Brosch, Olivia Petrine, Aisha Watt, Helen Bauer, Carina Clark, Natalie Figueroa, Erica Grotegeer, Kaitlin Heri, Kamryn Whitworth, Sara Absten, Eleanor Davies, Alexa Dietz, and Larisa Sulcs.
In addition to Bryant and Hammack, the women are represented by Bailey Glasser’s Lori Bullock in Des Moines, IA, and Cary Joshi in Washington, DC, along with co-counsel Amber Eck and Jenna Rangel of Haeggquist & Eck, LLP, and David S. Casey, Jr., and Gayle Blatt of Casey Gerry in San Diego.
Less than a month ago, on September 15, 2023, the Court ruled on SDSU’s motion to dismiss in part Plaintiffs’ Third Amended Complaint and found that all Plaintiffs can seek money damages from SDSU for depriving women athletes of equal athletic financial aid.
Now, with the equal athletic financial aid, equal treatment, and retaliation claims moving forward, the case will proceed to discovery and a decision on the merits.
