Fresno State takes first round of Title IX lawsuit brought by women’s lacrosse program

Fresno State and five members of its women’s lacrosse team who sued to restore a program that was eliminated last October along with two other sports were handed a split decision late Wednesday, the plaintiffs’ motion for preliminary injunction granted in part and denied in part without prejudice.

But the court did not grant a preliminary injunction barring Fresno State from cutting women’s lacrosse or any other women’s team, which temporarily at least is a win for the university 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 women’s lacrosse student-athletes Taylor Anders, Hennessey Evans, Abbigayle Roberts, Megan Walaitis and Tara Weir.

“We are pleased that the judge ordered Fresno State to treat the women’s lacrosse team as well as all the other varsity teams for the rest of the year, but very disappointed that the judge did not order Fresno State to continue women’s lacrosse while the case proceeded.”

University officials were expected to release a statement later Thursday, a spokesperson said.

Defendants named in the suit are Fresno State, athletics director Terry Tumey, former university president Joseph I. Castro (now the California State University chancellor) and interim university president Saul Jimenez-Sandoval.

Bryant said that the plaintiffs would continue their case, this just the first step in a long process.

In a 34-page ruling, the court panned a report from 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.

A motion seeking preliminary injunction

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.”

It also granted a motion to the 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.

A motion hearing had been set for March 22, but the court canceled the hearing and notified the parties that it would decide the motion based on papers that had been filed by each side.

The court ruled 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.

The order by Judge Anthony Ishii of the U.S. District Court, Eastern District of California, takes effect immediately and will automatically expire at the end of the academic year unless modified by the court.

“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.”

The numbers against lacrosse

Fresno State dropped women’s lacrosse along with wrestling and men’s tennis in October amid a sharp decline in revenues due to COVID-19.

The athletics department, which typically runs an annual operating deficit averaging $2.2 million, is expected to be down $6.6 million in 2020-’21. The move also trimmed the Bulldogs’ portfolio to 18 sports programs from 21, bringing the athletics department more in line with its conference rivals.

The Bulldogs’ women’s lacrosse team is scheduled to play its final regular-season game on Saturday against UC Davis, and close its season in the Mountain Pacific Sports Federation Tournament with the semifinals to be played April 30 and the championship game May 1.

The MPSF includes only three teams – Fresno State, San Diego State and UC Davis – and is in its last season sponsoring women’s lacrosse.

That is one reason the university felt women’s lacrosse no longer was fiscally or competitively sustainable.

Fresno State added women’s water polo when it reinstated its wrestling program, but it is much more viable long-term for the university.

Women’s water polo in 2018-’19, the last season not impacted by COVID-19, played 25 of its 29 matches in California while women’s lacrosse due to a lack of programs west of the Rocky Mountains made extended road trips to Florida and to Rhode Island.

The Pac-12 has six schools that field women’s lacrosse programs and the MPSF has three. The Big Sky, Big West, Mountain West, Western Athletic Conference and West Coast Conference do not sponsor the sport.

Travel costs for a 14-match women’s lacrosse season were $147,428 and for a 29-match women’s water polo season were $77,209.

Fresno State also invested $36,669 in women’s lacrosse recruiting compared to $16,363 in women’s water polo.

Total operating expenses were $1,086,505 for women’s lacrosse and $800,098 for women’s water polo, according to the financial report Fresno State submitted to the NCAA.

In 2019-’20, total operating expenses were $1,061,345 for women’s lacrosse and $778,610 for women’s water polo.

Women’s water polo, in its fifth season, also is 10-5 under coach Natalie Benson heading into the conference championships and ranked 11th in the Collegiate Water Polo Association’s Top 25.

Women’s lacrosse is 1-10 going into its final regular-season match and has finished with a record better than .500 just once in its 13 seasons of competition.

This story was originally published April 22, 2021 at 11:55 AM.