UC Davis Athletes' Lawsuit Survives Motion to Dismiss

In July, female athletes filed a lawsuit challenging the inequitable distribution of athletic opportunities at UC Davis. As we noted then, women make up almost 56% of the student body but receive only 50% of the athletic opportunities. This ~6% disparity, we said, was "very close to the generally-accepted 'within 5%' benchmark for compliance with prong one" -- raising the question (and the opportunity for valuable judicial precedent) about how close a school's percentages have to be to satisfy prong one.

Last week a federal judge in California denied UC Davis's motion to dismiss, reasoning that proportionality question presents an issue of fact that is improper to resolve before discovery and formal fact-finding take place. Specifically, the judge left open the possibility that

Plaintiffs may be able to offer evidence that the disparity is greater than that disclosed by UCD. Plaintiffs may also be able to present evidence that a 6% disparity has a disproportionate impact on women enrolled at UCD due to the size of its enrollment and athletic program; this disproportionate impact may affect the court's analysis of whether the athletic opportunities are “substantially proportionate.”

The judge did, however, grant UC Davis's motion to dismiss plaintiffs' claims under 42 U.S.C. 1983 that the inequitable distribution of athletic opportunities violated the Equal Protection clause as well as Title IX. Courts are split on the question of whether Title IX preempts claims under 1983, but many courts, including this one, believe that Title IX's remedies are all Congress intended plaintiffs to have.

12/19 update: For more on the circuit split regarding 1983 preemption, see this tremedously helpful post.

Decision is: Brust v. Regents of the University of California, 2007 WL 4365521 (Dec. 12, 2007).