1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MADISON FISK, RAQUEL CASTRO, Case No.: 22-CV-173 TWR (MSB)

GRETA VISS, CLARE BOTTERILL,

12

MAYA BROSCH, HELEN BAUER, ORDER (1) GRANTING IN PART

13 CARINA CLARK, NATALIE AND DENYING IN PART

FIGUEROA, ERICA GROTEGEER, DEFENDANTS’ MOTION TO

14

KAITLIN HERI, OLIVIA PETRINE, DISMISS, AND (2) GRANTING IN

15 AISHA WATT, KAMRYN PART AND DENYING IN PART

WHITWORTH, SARA ABSTEN, DEFENDANTS’ REQUEST FOR

16

ELEANOR DAVIES, ALEXA DIETZ, JUDICIAL NOTICE

17 and LARISA SULCS, individually and on behalf of all those similarly situated, (ECF Nos. 30, 32) 18 Plaintiffs, 19 v. 20

BOARD OF TRUSTEES OF THE

21

CALIFORNIA STATE UNIVERSITY

22 and SAN DIEGO STATE UNIVERSITY, 23 Defendants. 24 25 Presently before the Court are Defendants the Board of Trustees of the California 26 State University and San Diego State University’s (collectively, “SDSU”) Motion to 27 Dismiss Plaintiffs’ First Amended Complaint (“Mot.,” ECF No. 30) and Request for 28 Judicial Notice of Documents in Support of Defendants’ Motion to Dismiss Plaintiffs’ First 1 Amended Complaint (“RJN,” ECF No. 32). Plaintiffs filed an Opposition to Defendants’ 2 Motion to Dismiss (“Opp’n,” ECF No. 33), to which Defendants filed a Reply (“Reply,” 3 ECF No. 34). The Court held a hearing on the Motion on July 14, 2022. (See ECF No. 4 35.) Having carefully considered the parties’ arguments, the First Amended Complaint 5 (“FAC,” ECF No. 24), those documents properly subject to judicial notice or incorporated 6 by reference, and the relevant law, the Court GRANTS IN PART AND DENIES IN 7 PART Defendants’ Motion to Dismiss and GRANTS IN PART AND DENIES IN PART 8 Defendants’ Request for Judicial Notice. 9 BACKGROUND 10 I. Factual Background1 11 Plaintiffs, “past and current female varsity student-athletes at SDSU,” initiated this 12 suit against Defendants on February 7, 2022. (See ECF No. 1; FAC ¶ 15.) Defendants 13 receive federal funds, and thus must comply with Title IX. (See FAC ¶¶ 130, 132, 135); 14 see also 20 U.S. Code §§ 1681, 1687. The guiding regulation in this case is that “[n]o 15 person shall, on the basis of sex, be excluded from participation in, be denied the benefits 16 of, be treated differently from another person or otherwise be discriminated against in any 17 interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no 18 recipient shall provide any such athletics separately on such basis.” 34 C.F.R. § 106.41(a). 19 The Office for Civil Rights (“OCR”) has adopted additional regulations to ensure schools, 20 like SDSU, “provide equal athletic opportunity for members of both sexes.” See 34 C.F.R. 21 § 106.41(c). 22 Plaintiffs allege that none of them “received all of the athletic financial aid for which 23 they were eligible at SDSU” and that SDSU is depriving current student-athlete Plaintiffs 24 of “treatment and benefits equal to those provided to male student-athletes at SDSU.” 25 26 27 1 For purposes of Defendants’ Motion, the facts alleged in Plaintiffs’ First Amended Complaint are accepted as true. See Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007) (holding that, in 28 1 (FAC ¶¶ 19, 23.) If SDSU had complied with Title IX, Plaintiffs contend each of them 2 would have “had an opportunity to receive her fair share of equal financial aid” and “would 3 have received more athletic financial aid than she did.” (Id. ¶¶ 20–21.) Plaintiffs further 4 allege that SDSU “directly retaliated” against some Plaintiffs after they filed this lawsuit, 5 which had a “chilling effect on the willingness of other female varsity student-athletes to 6 challenge, expose, and remedy SDSU’s sex discrimination.” (Id. ¶ 24.) There are 7 seventeen named Plaintiffs in this case: 8 Total Aid Received Plaintiff2 Sport/Year3 9 (Specific Year) 10 1 Madison Fisk Rowing/Sr. $28,200 11 2 Raquel Castro Rowing/Jr. $2,400 12 3 Greta Viss Rowing/Grad. ‘21 $24,000 (Fr. & Soph.) 13 4 Clare Botterill Rowing/Jr. $38,000 (Soph.) 14 5 Maya Brosch T&F/Grad. ’21 $19,640 15 6 Olivia Petrine Rowing/Soph. $800 16 7 Helen Bauer Rowing/Sr. $30,000 17 8 Carina Clark*^ T&F/Sr. $800 (Sr.) 18 9 Natalie Figueroa Rowing/Jr. $0 19 10 Erica Grotegeer*^ T&F/Sr. $37,879 20 11 Kaitlin Heri*^ T&F/Sr. $64,600 21 12 Aisha Watt*^ T&F/Jr. $4,600 22 13 Kamryn Whitworth Rowing/Grad. ‘21 $13,200 23 24 25 2 An asterisk (*) indicates current varsity student-athlete as of February 7, 2022, (FAC ¶¶ 68, 81, 26 88, 95, 108), while a carat (^) indicates presence at the Zoom meeting at which SDSU allegedly retaliated. (Id. ¶¶ 73, 86, 93, 100.) 27 3 SDSU eliminated its women’s varsity rowing team in Spring 2021. (FAC ¶ 27.) The year in 28 1 14 Sara Absten* T&F/Sr. “Partial” / “Fluctuated” 2 Rowing/Soph. (Transferred 15 Eleanor Davies $22,500 3 Jan ‘22) 4 16 Alexa Dietz Rowing/Sr. $18,400 5 17 Larisa Sulcs Rowing/Jr. $22,800 6

7 II. Plaintiffs’ Allegations 8 A. Disproportional Financial Aid 9 “To the extent that a recipient [of federal funds] awards athletic scholarships or 10 grants-in-aid, it must provide reasonable opportunities for such awards for members of 11 each sex in proportion to the number of students of each sex participating in interscholastic 12 or intercollegiate athletics.” 45 C.F.R. § 86.37. Plaintiffs allege that SDSU violated this 13 regulation by failing to provide athletic financial aid to female student-athletes in 14 proportion to their participation rates, thereby intentionally discriminating against female 15 student-athletes. (FAC ¶ 171.) 16 By October 15 of each year, SDSU compiles and discloses data for the prior year’s 17 athletic expenditures and participation to the federal government pursuant to the Equity in 18 Athletics Disclosure Act (“EADA”). (Id. ¶¶ 176, 185 n.5) SDSU can provide athletic 19 financial aid at any point during an academic year and thus is able to correct any 20 “discriminatory allocation” at any point. (Id. ¶¶ 183–84.) Plaintiffs allege that SDSU’s 21 data indicates that for over ten years, “female varsity student-athletes at SDSU have been 22 deprived of athletic financial aid in proportion to their participation in SDSU athletics.” 23 (Id. ¶ 175.) On August 19, 2021, the parties entered into a tolling agreement that preserves 24 all Title IX athletic financial aid claims for at least two years prior. (Id. ¶ 181 n. 4.) 25 B. Unequal Treatment and Benefits 26 “A recipient [of federal funds that] operates or sponsors interscholastic, 27 intercollegiate, club or intramural athletics shall provide equal athletic opportunity for 28 members of both sexes.” 34 C.F.R. § 106.41. Plaintiffs allege that, in violation of this 1 regulation, SDSU does not “provide athletic treatment and benefits to its female varsity 2 student-athletes equal to those it provides to its male varsity student-athletes and, 3 accordingly, intentionally discriminates” against its female student-athletes. (FAC ¶ 192.) 4 Plaintiffs assert that SDSU provides more equipment to the men’s teams and that 5 that equipment is of “superior quality” to that that SDSU provides to its women’s teams. 6 (Id. ¶¶ 194, 196.) SDSU additionally gives men’s teams priority to schedule their practice 7 times and tutoring sessions and provides unequal travel benefits and per diem allowances. 8 (Id. ¶¶ 199, 202, 208.) Further, SDSU spends far more money to pay men’s head and 9 assistant coaches, to provide men’s teams with more publicity, and to recruit student- 10 athletes for men’s teams than it does for women’s teams. (Id. ¶¶ 210, 213, 228, 230, 234.) 11 C. Retaliatory Conduct 12 On February 16, 2022, the women’s track and field team held a recorded Zoom 13 meeting. (FAC ¶ 239.) Four named Plaintiffs were present for the Zoom meeting. (See 14 id. ¶¶ 15–128.)4 SDSU “described the Title IX lawsuit as a distraction to the women 15 participating in the lawsuit and to the team as a whole.” (Id. ¶ 242.) SDSU allegedly knew 16 (1) Plaintiffs were preparing to file an amended complaint adding a claim for unequal 17 treatment and benefits for current female student-athletes; (2) only current varsity student- 18 athletes could raise such a claim; (3) since the five track and field Plaintiffs were already 19 suing the school for deprivation of equal financial aid, they would likely participate in the 20 unequal treatment claim; (4) the women’s track and field team was the “most obvious 21 source” for additional plaintiffs; and (5) if SDSU “directly and openly retaliated” against 22 the five Plaintiffs, it would have a “chilling effect” on the rest of the team and other female 23 student-athletes from pursuing their Title IX rights. (Id. ¶¶ 244–48.) The comments 24 “adversely affected” the Plaintiffs present and made other teammates “immediate wary” of 25 pursuing claims against SDSU. (Id. ¶¶ 249–50.) 26

27 4 Plaintiffs and Defendants repeatedly reference that five of the named Plaintiffs were present, (FAC 28 1 On February 28, 2022, Plaintiffs requested a copy of the Zoom meeting recording 2 and for SDSU to make a statement to “mitigate the damage done by its comments.” (Id. 3 ¶¶ 253–54.) SDSU responded that there was “no evidence of retaliatory actions or intent” 4 and that it would “address the situation internally,” declining to “provide any details about 5 how it would address the comments.” (Id. ¶¶ 258, 261.) 6 D. Request for Relief 7 Plaintiffs state that “SDSU has violated and is violating Title IX’s equal athletic 8 financial aid requirements, equal treatment and benefits requirements, and prohibition 9 against retaliation.” (Id. ¶ 169.) Accordingly, Plaintiffs request that the Court (1) certify 10 this case as a class action; (2) appoint the Plaintiffs in the “Class Allegations” as class 11 representatives and appoint Plaintiffs’ counsel as class counsel; (3) declare that SDSU has 12 discriminated and is discriminating against its past and current female varsity student- 13 athletes on the basis of their sex in the distribution of athletic financial aid in violation of 14 Title IX and the Regulations promulgated thereunder; (4) declare that SDSU has 15 discriminated and is discriminating against its past and current female varsity student- 16 athletes on the basis of their sex in the provision of treatment and benefits in violation of 17 Title IX and the Regulations promulgated thereunder; (5) declare that SDSU has illegally 18 retaliated against its past and current female varsity student-athletes in violation of Title 19 IX and the Regulations promulgated thereunder; (6) permanently enjoin SDSU from 20 discriminating against its female student-athletes on the basis of their sex; (7) award 21 compensatory damages and other monetary relief as permitted by law to Plaintiffs and all 22 members of the athletic financial aid damages class for SDSU’s violation of their right to 23 equal athletic financial aid; (8) award nominal, compensatory (as appropriate), and other 24 monetary relief as permitted by law to Plaintiffs and all members of the retaliation damages 25 classes for SDSU’s retaliation in violation of Title IX; (9) maintain jurisdiction to monitor 26 SDSU’s compliance; (10) award Plaintiffs their reasonable attorneys’ fees and expenses; 27 and (11) order such other and further relief as the Court deems appropriate. (Id. at 47–49.) 28 / / / 1 LEGAL STANDARDS 2 I. Federal Rule of Civil Procedure 12(b)(1) 3 A party may challenge the court’s subject-matter jurisdiction through a motion filed 4 pursuant to Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P. 12(b)(1); see 5 also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Because “[f]ederal courts are 6 courts of limited jurisdiction,” “[i]t is to be presumed that a cause lies outside this limited 7 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 8 Consequently, “the burden of establishing the contrary rests upon the party asserting 9 jurisdiction.” Id. 10 “Because standing . . . pertain[s] to a federal court’s subject-matter jurisdiction under 11 Article III, [it is] properly raised in a motion to dismiss under Federal Rule of Civil 12 Procedure 12(b)(1).” White, 227 F.3d at 1242 (citing Bland v. Fessler, 88 F.3d 729, 732 13 n.4 (9th Cir. 1996)). “[S]tanding is an essential and unchanging part of the case-or- 14 controversy requirement of Article III.” D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 15 1031, 1035 (9th Cir. 2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 16 (1992)). 17 “To satisfy Article III’s standing requirements, a plaintiff must show (1) [he] has 18 suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, 19 not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of 20 the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be 21 redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. 22 (TOC), Inc., 528 U.S. 167, 180–81 (2000). 23 II. Federal Rule of Civil Procedure 12(b)(6) 24 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 25 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 26 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 27 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for failure to 28 state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of 1 a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 2 theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 3 Cir. 1988)). 4 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and 5 plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. 6 Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading 7 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 8 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 9 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a] 10 pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a 11 cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). 12 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 13 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 14 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 15 factual content that allows the court to draw the reasonable inference that the defendant is 16 liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[W]here the 17 well-pleaded facts do not permit the court to infer more than the mere possibility of 18 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 19 entitled to relief.’” Id. at 679 (second alteration in original) (quoting Fed. R. Civ. P. 20 8(a)(2)). 21 “If a complaint is dismissed for failure to state a claim, leave to amend should be 22 granted ‘unless the court determines that the allegation of other facts consistent with the 23 challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight 24 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well 25 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court does not err in 26 denying leave to amend where the amendment would be futile.” Id. (citing Reddy v. Litton 27 Indus., 912 F.2d 291, 296 (9th Cir. 1990), cert. denied, 502 U.S. 921 (1991)). 28 / / / 1 ANALYSIS 2 I. Request for Judicial Notice 3 In support of their Motion to Dismiss, Defendants request that the Court take judicial 4 notice of seven exhibits. (RJN at 2.) Plaintiffs do not oppose Defendants’ request. (See 5 generally Opp’n; Docket.) “In ruling on a 12(b)(6) motion, a court may generally consider 6 only allegations contained in the pleadings, exhibits attached to the complaint, and matters 7 properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 8 2007). A court may, however, take judicial notice of an adjudicative fact that “is not 9 subject to reasonable dispute” because it is “generally known within the trial court’s 10 territorial jurisdiction” or “can be accurately and readily determined from sources whose 11 accuracy cannot be reasonably questioned.” Fed. R. Evid. 201. 12 Federal Rule of Evidence 201 “allows the court to take judicial notice of certain 13 items without converting the motion to dismiss into one for summary judgment.” Rex v. 14 Chase Home Fin. LLC, 905 F. Supp. 2d 1111, 1124 (C.D. Cal. 2012); see also Tellabs, Inc. 15 v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007) (stating that when ruling on a motion 16 to dismiss, courts may consider “matters of which a court may take judicial notice”). 17 “Under Rule 201, the court can take judicial notice of “[p]ublic records and government 18 documents available from reliable sources on the Internet,” Gerritsen v. Warner Bros. Ent. 19 Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 2015), such as records and reports of 20 administrative bodies. United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003). If a 21 court takes judicial notice of a document, it must specify what facts it judicially noticed 22 from the document. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 23 2018). 24 Incorporation by reference, on the other hand, is a “judicially created doctrine that 25 treats certain documents as though they are part of the complaint itself.” Id. at 1002. 26 Unlike judicial notice, a court generally may assume all contents of an incorporated 27 document are true for purposes of a 12(b)(6) motion to dismiss. Id. at 1003. 28 / / / 1 A. Exhibit 1: NCAA Bylaws 2 Defendants request that the Court take judicial notice of the NCAA Bylaws (the 3 “Bylaws”) because they are not subject to reasonable dispute, they are publicly available, 4 and they are incorporated by reference in Plaintiffs’ First Amended Complaint. (RJN at 5 4–5.) 6 Defendants appear to conflate judicial notice and incorporation by reference. The 7 Bylaws, which are not explicitly cited, are referenced when Plaintiffs discuss the NCAA 8 scholarship limits. (FAC ¶¶ 150–51, 190–91.) The Bylaws provide detail and guidance to 9 institutions regarding their financial scholarship allocation, including how certain teams 10 have specific head count limits, (see Section 15.5.2), while other teams have equivalency 11 limits, (see Section 15.5.3). (See ECF No. 30-3, (“Ex. 1”) at 19.) While this information 12 is helpful to understanding the background of this case, it does not form the basis of 13 Plaintiffs’ claims or referred to “extensively” in the First Amended Complaint, and thus is 14 not appropriate for incorporation by reference. See Ritchie, 342 F.3d at 908. 15 The Bylaws are, however, appropriate for judicial notice, as they are undisputed, 16 maintained by a non-party—the NCAA—and the request is unopposed. The Court 17 therefore GRANTS Defendants’ Request for Judicial Notice of the Bylaws and specifically 18 TAKES JUDICIAL NOTICE of the NCAA’s rules for financial scholarship distribution 19 and limitations as excerpted in Exhibit 1. 20 B. Exhibits 2–7: Public Documents Created/Maintained by OCR 21 Defendants also request that the Court take judicial notice of Exhibits 2–7, which 22 are related to “Title IX compliance that are available on OCR’s website, which is run by 23 the United States Department of Education, a government agency.” (RJN at 3.) 24 Additionally, Defendants note that Plaintiffs’ First Amended Complaint references 25 Exhibits 2 and 3, so they are incorporated by reference. (Id. at 3–4.) 26 Exhibits 2 and 3 are the OCR’s 1979 Policy Interpretation and the July 23, 1998 27 Dear Colleague Letter, respectively. These exhibits are referenced extensively throughout 28 Plaintiffs’ First Amended Complaint and form the basis for Plaintiffs’ claims, as both 1 provide institutions with guidance and instruction to ensure their compliance with Title IX 2 requirements. (See ECF Nos. 30-4, 30-5.) Plaintiffs’ allegations center on a failure to 3 comply with OCR’s instructions and requirements. Accordingly, the Court finds Exhibits 4 2 and 3 are incorporated by reference. Exhibits 4 through 7, however, are not relied upon 5 or cited extensively in the First Amended Complaint and thus are not appropriate for 6 incorporation by reference. 7 The Court DENIES Defendants’ Request for Judicial Notice as to Exhibits 4 through 8 7. Although the request is unopposed and the exhibits are undisputed, “public records and 9 government documents available” from reliable sources, see Gerritsen, 112 F. Supp. 3d at 10 1033, they are irrelevant to the Court’s analysis. See id. at 1030 (denying judicial notice 11 of information in press releases and publicly available news articles because it was 12 irrelevant for purposes of the motion to dismiss). Exhibit 4 concerns “effective 13 accommodation” regulations, which are not at issue in this case. Exhibits 5 through 7 are 14 “Resolution Agreements” between OCR and several institutions to support the proposition 15 that OCR does not award retrospective money damages. A voluntary resolution agreement 16 is not law or precedent which is binding on this Court. 17 Thus, the Court INCORPORATES BY REFERENCE Exhibits 2–3 and DENIES 18 Defendants’ Request for Judicial Notice of Exhibits 4–7. 19 II. Statute of Limitations 20 Defendants assert that Plaintiffs’ claims cannot include scholarship decisions made 21 prior to August 19, 2019, because they would fall outside the two-year statute of limitations 22 and that Plaintiffs “generally point to events from the past decade that fall outside” that 23 statute of limitations. (Mot. at 3, 10.) Plaintiffs assert that they “are entitled to damages 24 going back a minimum of two years from August 19, 2021, for SDSU’s Title IX’s athletic 25 financial aid violations.” (FAC ¶ 181.) When Plaintiffs knew, or could have known, about 26 their alleged injuries is a factual dispute inappropriate for consideration at the motion to 27 dismiss stage. Therefore, the Court RESERVES judgment on the proper start date for 28 Plaintiffs’ financial aid claim. 1 III. Title IX 2 Plaintiffs make several different claims under Title IX, (see generally FAC), 3 pursuant to which no person in the United States shall, on the basis of sex, be excluded 4 from participation in, be denied the benefits of, or be subjected to discrimination under any 5 education program or activity receiving Federal financial assistance. 20 U.S.C.A. § 1681. 6 In response to complaints alleging Title IX discrimination in athletics, OCR issued a policy 7 interpretation (“PI”) in 1979 titled “Title IX and Intercollegiate Athletics” interpreting Title 8 IX and its own regulations.5 The goal of the PI was to “provide further guidance on what 9 constitutes compliance with the law.” (PI at 3.) For example, the PI clarifies the 10 obligations to “provide equal opportunities in athletic programs” and how to assess 11 compliance. (Id. at 5.) 12 A. First Cause of Action: Denial of Equal Allocation of Athletic Financial Aid 13 Plaintiffs assert a claim for denial of equal allocation of athletic financial aid 14 pursuant to Title IX. (See FAC ¶¶ 282–90.) Section VII.A of the PI instructs that 15 compliance will be examined by “a financial comparison to determine whether 16 proportionately equal amounts of financial assistance (scholarship aid) are available to 17 men's and women's athletic programs.” (PI at 5.) The comparison is measured by “dividing 18 the amounts of aid available for the members of each sex by the numbers of male or female 19 participants in the athletic program and comparing the results.” (Id.) A university complies 20 if the comparison shows “substantially equal amounts” or if the disparity can be explained 21 by “legitimate, nondiscriminatory factors.” (Id.) 22 “If any unexplained disparity in the scholarship budget for athletes of either gender 23 is 1% or less for the entire budget for athletic scholarships, there will be a strong 24 presumption that such a disparity is reasonable and based on legitimate and 25 nondiscriminatory factors. Conversely, there will be a strong presumption that an 26

27 5 The Court incorporates by reference the PI and thus assumes the truth of its contents. See supra 28 1 unexplained disparity of more than 1% is in violation of the ‘substantially proportionate’ 2 requirement.” U.S. DOE, Dear Colleague Letter (“Letter”) at 2–4 (July 23, 1998)6. 3 Defendants contend that Plaintiffs fail “to identify any ‘concrete and particularized 4 harm’ that she has personally suffered” and thus do not have standing to pursue their 5 claims. (Mot. at 8.) Defendants assert that because student-athletes do not have a 6 “protected interest in, or individualized right to, an athletic scholarship under Title IX,” 7 Plaintiffs’ failure to receive any scholarship or a larger scholarship is not a particularized 8 injury. (Id.) Plaintiffs argue that they have established standing based on psychological 9 harm, disparity in funding available to them, and receipt of smaller scholarship awards than 10 they otherwise would have if SDSU had complied with Title IX. (Opp’n at 5, 8.) 11 Defendants counter that Plaintiffs “never actually allege they experienced any 12 ‘psychological harm’” and that their argument is “foreclosed by Cummings’ unequivocal 13 ruling that damages for emotional distress are not recoverable.” (Reply at 1.) 14 Defendants are correct that Plaintiffs have not demonstrated a concrete injury. First, 15 Plaintiffs’ First Amended Complaint does not allege psychological harm. At the hearing, 16 Plaintiffs’ counsel repeatedly asserted that Plaintiffs alleged psychological harm. (See ECF 17 No. 36 (“Tr”) at 4:24–5:4, 6:23–25, 13:18.) The only assertion of psychological harm, 18 however, appears improperly in Plaintiffs’ Opposition. (See Opp’n at 5); see also 19 Gerritsen, 116 F. Supp. 3d at 1126 (“[I]t is improper for a plaintiff to assert an unpled 20 theory of liability in opposition to a defendant’s Rule 12(b)(6) motion to dismiss.”). 21 Second, to establish standing to bring a denial of equal allocation of athletic financial 22 aid claim under Title IX, Plaintiffs must show both a disparity in funding and how that 23 disparity specifically affected each of them—i.e., that she would have received a larger 24 scholarship if the budget had been proportional. See Anders v. Cal. State Univ., Fresno, 25 No. 121CV00179AWIBAM, 2021 WL 3115867, at *17 (E.D. Cal. July 22, 2021) (finding 26

27 6 The Court incorporates by reference the Letter and thus properly may assume the truth of its 28 1 plaintiffs lacked standing because the court could not infer from allegations which 2 plaintiffs were deprived of a scholarship or received a lesser scholarship due to a Title IX 3 violation); see also Balow v. Michigan State Univ., No. 1:21-CV-44, 2021 WL 4316771, 4 at *7 (W.D. Mich. Sept. 22, 2021) (finding plaintiffs lacked standing because plaintiffs did 5 not allege how a disparity between scholarships provided to male versus female athletes 6 caused their injury). In the First Amended Complaint, while Plaintiffs allege facts 7 indicating that there was a disparity in funding, see infra Section IV.B, they do not allege 8 how that disparity affected each of them. For example, Plaintiff Absten alleges that the 9 “amount of athletic financial aid [received] has fluctuated significantly from semester to 10 semester.” (FAC ¶ 110.) She does not allege, however, that the fluctuation in her funding 11 is due to the disparity in funding between male and female student-athletes. The First 12 Amended Complaint similarly lacks specific allegations as to the remaining Plaintiffs as 13 well. 14 Thus, the Court finds that Plaintiffs lack standing and DISMISSES their first Title 15 IX claim for denial of equal allocation of athletic financial aid. 16 B. Second Cause of Action: Denial of Equal Athletic Treatment and Benefits 17 Current student-athletes Clark, Grotegeer, Heri, Watt, and Absten also assert a claim 18 seeking injunctive relief for denial of equal athletic treatment and benefits pursuant to Title 19 IX. (See FAC ¶¶ 291–98.) Section VII.A. of the PI discusses “Equivalence in Other 20 Athletic Benefits and Opportunities.” (PI at 6.) To determine whether a school is providing 21 equal opportunity to “members of both sexes,” OCR considers: 22 (1) [intentional blank] 23 (2) Provision and maintenance of equipment and supplies; 24 (3) Scheduling of games and practice times; 25 (4) Travel and per diem expenses; 26 (5) Opportunity to receive coaching and academic tutoring; 27 (6) Assignment and compensation of coaches and tutors; 28 (7) Provision of locker rooms, practice and competitive facilities; 1 (8) Provision of medical and training services and facilities; 2 (9) Provision of housing and dining services and facilities; and 3 (10) Publicity. 4 (Id.) The “availability, quality and kinds of benefits, opportunities, and treatment afforded 5 members of both sexes” inform whether a school is in compliance with Title IX. (Id.) If 6 the comparison yields results that are “equal or equal in effect,” the school will be in 7 compliance. (Id.) Nondiscriminatory factors include, “rules of play, nature/replacement 8 of equipment, rates of injury resulting from participation, nature of facilities required for 9 competition, and the maintenance/ upkeep requirements of those facilities.” (Id. at 7.) 10 OCR determined that, “[f]or the most part, differences involving such factors will occur in 11 programs offering football” and are justifiable as long as “sport-specific needs are met 12 equivalently in both men’s and women’s programs.” (Id.) Under each of the above factors, 13 OCR provides additional sub-factors for consideration. (Id. at 7–8.) 14 1. Standing 15 Defendants assert that Plaintiffs lack standing to bring a claim for injunctive relief 16 for allocation of athletic benefits because “each named Plaintiff must plead a concrete, 17 redressable injury to proceed, but no named Plaintiff has cleared that bar.” (Mot. at 18.) 18 Plaintiffs, however, contend that they adequately state how “SDSU treated the women on 19 the track team, including Plaintiffs, less favorably than men.” (Opp’n at 19.) Plaintiffs 20 additionally note that only current student-athletes are asserting the claim for unequal 21 treatment and benefits. (Id. n. 7.) 22 The Court disagrees with Defendants’ contention that Plaintiffs do not allege how 23 the track and field team has been harmed by an unequal allocation of benefits. (See Mot. 24 at 19.) Plaintiffs clearly allege that, unlike men’s teams, the women’s track and field team 25 must “reuse equipment and supplies over a number of years” and schedule its practices 26 around men’s out-of-season team practices. (FAC ¶¶ 197, 200.) Additionally, Plaintiffs 27 provide numerous examples, see infra Section III.B.2, of disparities between men’s and 28 women’s teams, including the women’s track and field Plaintiffs. Accordingly, the Court 1 concludes that the current student-athlete Plaintiffs have standing to assert a claim for 2 denial of equal treatment and benefits. 3 2. Adequacy of Plaintiffs’ Allegations 4 In addition to challenging Plaintiffs’ standing, Defendants also contend that 5 Plaintiffs fail to state a claim because “(1) they conflate the provision of non-identical 6 benefits with unequal benefits, failing to account for sport-specific differences and failing 7 to address the specific factors that OCR considers; and (2) they attempt to elevate the 8 allegedly-unique level of benefits provided to football as the standard that must be provided 9 to all other teams.” (Mot. at 20) (emphasis in original). Plaintiffs respond that a 10 comparison to the football team is appropriate because if the football team is given a unique 11 benefit that is not provided to any other team, then “the men’s program is, on balance, 12 receiving unequal treatment and benefits.” (Opp’n at 22.) Plaintiffs further argue that 13 factual disputes over what equipment is necessary for each sport should not be resolved at 14 the motion to dismiss stage. (Id. at 21–22.) 15 Plaintiffs are correct and have sufficiently stated a claim for denial of equal athletic 16 treatment and benefits. Plaintiffs describe many differences in SDSU’s treatment of its 17 women’s versus men’s teams, (FAC ¶¶ 193–237), including the following examples: 18 • Some men’s teams receive “four or more pairs of athletic shoes for the 19 season,” while women’s teams receive two to three, with some receiving zero. 20 (Id. ¶ 195.) 21 • Women’s teams, like track and field, must schedule their practices around 22 men’s teams, like soccer, even when the men are out-of-season and the women 23 are in their competitive season. (Id. ¶ 200.) 24 • SDSU provides men’s teams with $200 to $300 per diem per athlete for a 25 competition weekend, while it provides women’s teams with $75 to $100 per 26 diem per athlete for a similar weekend. (Id. ¶ 204.) 27 • SDSU provides men’s teams with catered meals while traveling, while 28 women’s teams must provide their own lunch. (Id. ¶ 206.) 1 • Men’s teams have “priority access to scheduling tutoring.” (Id. ¶ 208.) 2 • Head coaches of women’s teams make an average of less than half of the 3 amount SDSU pays men’s team head coaches. (Id. ¶ 212.) 4 • Some women’s teams are required to share a locker room with each other, 5 whereas men’s teams do not share. (Id. ¶ 220.) 6 • Shared athletic trainers are present for every men’s team practice and 7 competition but are not present for every women’s team practice or 8 competition. (Id. ¶ 222.) 9 • SDSU provides more publicity to men’s teams than women’s teams, for 10 example by posting on the athletic department’s social media account when 11 men’s teams have competitions. (Id. ¶ 229.) 12 • SDSU women’s varsity teams have historically been given “much smaller 13 recruiting budgets” than the men’s teams. (Id. ¶ 234–35.) 14 Accepting the above examples—none of which include a comparison to SDSU’s football 15 team—as true, as the Court must at the pleading stage, Plaintiffs have stated a plausible 16 claim for relief. See Iqbal, 556 U.S. at 678 (a claim is plausible when the court can draw 17 “the reasonable inference that the defendant is liable for the misconduct alleged”). Thus, 18 the Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ second claim for denial of 19 equal athletic treatment and benefits. 20 C. Third Cause of Action: Retaliation 21 Finally, Plaintiffs plead a cause of action under Title IX for retaliation. (See FAC 22 ¶¶ 299–308.) “Title IX prohibits sex discrimination by recipients of federal education 23 funding.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). Actionable 24 “sex discrimination” includes retaliation “against a person because he complains of sex 25 discrimination.” Id. at 174, 178 (emphasis in original); see also Emeldi v. Univ. of Ore., 26 698 F.3d 715, 725 (9th Cir. 2012) (speaking out against sex discrimination is a protected 27 activity). “The Title VII framework generally governs Title IX retaliation claims.” Emeldi, 28 1 evidence. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003), as amended 2 (Jan. 6, 2004). “Direct evidence is evidence which, if believed, proves the fact of 3 discriminatory animus without inference or presumption.” Id. Plaintiffs lacking direct 4 evidence must establish a “prima facie case of retaliation by showing (a) that he or she was 5 engaged in protected activity, (b) that he or she suffered an adverse action, and (c) that 6 there was a causal link between the two.” Emeldi, 698 F.3d at 724. 7 1. Standing 8 In the First Amended Complaint, Plaintiffs allege that those who were not present 9 for the Track and Field Zoom meeting (the “Absent Plaintiffs”) have standing to assert a 10 Title IX retaliation claim because they are in the “zone of interest.” (FAC ¶ 251.) 11 Defendants challenge the Absent Plaintiffs’ standing, contending they “could not 12 reasonably have suffered any harm from a comment they did not hear” and thus do not 13 have standing. (Mot. at 23.) Plaintiffs do not directly address Defendants’ arguments, (see 14 generally Opp’n), which the Court could construe as a concession that the Absent Plaintiffs 15 lack standing. See, e.g., Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1205 (N.D. Cal. 2014). 16 Nonetheless, Plaintiffs appear to argue that the Absent Plaintiffs have standing because 17 “the prosecution of Plaintiffs’ claims and the ability of other female varsity student-athletes 18 to pursue their own Title IX claims [was] adversely affected” by SDSU’s conduct. (FAC 19 ¶ 251.) 20 Title IX permits plaintiffs who fall within the “zone of interest” to bring complaints. 21 See Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 866 (9th Cir. 2014). Any 22 plaintiff with an interest meant to be protected by the statute may bring a complaint. 23 Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 178 (2011). Title IX “is broadly worded; 24 it does not require that the victim of the retaliation must also be the victim of the 25 discrimination that is the subject of the original complaint.” Jackson, 544 U.S. at 179. 26 Plaintiffs’ arguments are unavailing. First, the Absent Plaintiffs—all former 27 student-athletes—do not demonstrate that they were meant to be protected by the zone as 28 they are no longer associated with the SDSU athletics program. Second, the Absent 1 Plaintiffs do not allege any actual damage or harm resulting from the alleged retaliatory 2 statement. While Plaintiffs allege a “chilling effect” on all female athletes’ willingness to 3 pursue Title IX claims, (FAC ¶ 251), the Absent Plaintiffs were evidently not deterred from 4 participating in this lawsuit given they are named Plaintiffs in the case. Moreover, 5 Plaintiffs’ conclusory allegation that a “chilling effect” would spread is insufficient to state 6 a claim under Rule 12(b)(6). See Iqbal, 556 U.S. at 663. 7 Because Plaintiffs cannot show how those absent from the Zoom meeting were 8 harmed by Defendants’ statement made at the meeting or fall within the zone of interest, 9 the Court GRANTS Defendants’ Motion to Dismiss the Title IX retaliation claim brought 10 by the Absent Plaintiffs. 11 2. Adequacy of Plaintiffs’ Allegations 12 The remaining Plaintiffs are four current track and field student-athletes, Carina 13 Clark, Erica Grotegeer, Kaitlin Heri, and Aisha Watt. Defendants assert that these 14 “Plaintiffs do not allege that SDSU ever took any actual adverse action against them” and 15 thus these Plaintiffs have failed to state a viable claim of retaliation in violation of Title IX. 16 (Mot. at 24.) Plaintiffs respond that the “adverse effect of SDSU’s conduct is a chilling 17 effect on current female student-athletes to assert their Title IX rights against the school.” 18 (Opp’n at 25.) Plaintiffs additionally note that the Title VII framework upon which SDSU 19 relies is irrelevant in this case because Plaintiffs “have direct evidence of retaliation” based 20 on the statement at the meeting. (Id. at 24 n. 8.) 21 Plaintiffs’ claim that they have “direct evidence of retaliation” amounts to no more 22 than a conclusory assertion devoid of fact. See Cholla Ready Mix, Inc. v. Civish, 382 F.3d 23 969, 973 (9th Cir. 2004) (“[T]he court is not required to accept legal conclusions cast in 24 the form of factual allegations if those conclusions cannot reasonably be drawn from the 25 facts alleged. Nor is the court required to accept as true allegations that are merely 26 conclusory, unwarranted deductions of fact, or unreasonable inferences.”) (citations and 27 internal quotation marks omitted). The First Amended Complaint does not include any 28 factual allegations constituting direct evidence of retaliation. The only “evidence” 1 Plaintiffs offer in support of their retaliation claim is that SDSU made the statement that 2 “the Title IX lawsuit [was] a distraction to the women participating in the lawsuit and to 3 the team as a whole” at the Zoom meeting. (FAC ¶ 242.) A single comment describing 4 the lawsuit as a “distraction,” however, does not amount to direct evidence of retaliation.7 5 See Jackson, 544 U.S. at 174 (defining retaliation as an “intentional response to the nature 6 of the complaint: an allegation of sex discrimination”). 7 Nor have Plaintiffs alleged facts to establish a “prima facie” case of retaliation based 8 on circumstantial evidence. Plaintiffs allege they participated in a protected activity, see 9 id. at 173; however, they do not allege any adverse action. To the extent Plaintiffs are 10 attempting to argue that the alleged “chilling effect” is the adverse action—though they 11 call it an “adverse effect,” (see Opp’n at 25)—that argument falls well short. Thus, the 12 Court DISMISSES the remaining Plaintiffs’ Title IX retaliation claim. 13 CONCLUSION 14 In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART 15 Defendants’ Request for Judicial Notice. (ECF No. 32.) Specifically, the Court TAKES 16 JUDICIAL NOTICE of Exhibit 1, INCORPORATES BY REFERENCE Exhibits 2 17 and 3, and DENIES Defendants’ Request for Judicial Notice of Exhibits 4 through 7. The 18 Court also GRANTS IN PART AND DENIES IN PART Defendants’ Motion to Dismiss. 19 (ECF No. 30.) Specifically, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ 20 first cause of action for Denial of Equal Allocation of Athletic Financial Aid in violation 21 / / / 22 23 24 7 Plaintiffs argue that in A. B. v. Hawaii State Department of Education, 30 F.4th 828, 833 (9th Cir. 25 2022), the Ninth Circuit “acknowledge[d] something as simple as a statement can have a chilling effect on students’ willingness to assert their civil rights.” (See Opp’n at 24). Plaintiffs’ reliance on A. B. is 26 misplaced. First, the A.B. court’s findings were made in the context of a class certification analysis of typicality, not a motion to dismiss. Moreover, the portion of A.B. to which Plaintiffs cite consists of the 27 court reciting the A.B. plaintiffs’ arguments, not making any finding. See A. B., 30 F.4th at 833 (“Plaintiffs further allege that these retaliatory actions created a ‘chilling effect among [plaintiffs] regarding 28 1 || of Title IX and third cause of action for Retaliation under Title IX. The Court otherwise 2 || DENIES Defendants’ Motion to Dismiss. 3 Plaintiffs MAY FILE an amended complaint curing the deficiencies outlined in this 4 || Order within fourteen (14) days of the electronic docketing of this Order. Should Plaintiff 5 || elect not to file a timely amended complaint, the Court will consider Plaintiff's first and 6 || third causes of action to be abandoned, and this action shall proceed solely as to Plaintiffs’ 7 || surviving second cause of action. 8 IT IS SO ORDERED. 9 Dated: November 1, 2022 —— (2 10 lad \& (are 11 Honorable Todd W. Robinson D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28