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Court Limits Expert’s Testimony About Gender Equity in Student Athletic Programs

Written on Tuesday, August 14th, 2018 by T.C. Kelly
Filed under: ExpertWitness

Several members of women’s tennis and skiing teams at Minnesota’s St. Cloud State University began a class action lawsuit, alleging that the University’s decision to eliminate those sports violated Title IX’s prohibition against sex discrimination in educational institutions. The University moved to exclude the expert testimony from Dr. Donna Lopiano on behalf of the plaintiffs. The court’s ruling limited Dr. Lopiano’s testimony on legal issues while permitting her to express non-legal expert opinions.


St. Cloud State University’s enrollment declined significantly between its 2011 peak and 2016. The University’s administration asked the Athletic Department to devise a cost containment strategy. The proposed strategy eliminated six sports: men’s tennis, women’s tennis, men’s cross country, men’s indoor track, men’s outdoor track, and women’s Nordic skiing.

The plaintiffs contend that the plan ignored Title IX’s demand that male and female students be given equal athletic opportunities. They contend that the plan worsens an existing disparity between opportunities offered to male and female student athletes. To achieve equality, the plaintiffs contend that the University has two choices: it can further reduce the availability of athletic participation to male students or increase athletic opportunities for female students.

The University argues that it would lose its Division I NCAA membership if it equalized athletic opportunities by reducing opportunities for male students. The University’s male and female ice hockey teams compete at a Division I level. The University also argues that it lacks the funds to equalize opportunities by increasing the number of athletic programs available to women.

The court entered a preliminary injunction enjoining the University from eliminating its women’s tennis team. In granting that injunction, the court determined that the lawsuit had substantial merit and that the plaintiffs are likely to prevail.

Expert Testimony Regarding Legal Standards

The plaintiffs seek to support their claims with the expert testimony of Dr. Donna Lopiano. Dr. Lopiano has a Ph.D. in physical education, operates a company that helps educational institutions solve challenges in their athletic programs, and has served as a gender equity consultant for the Office of Civil Rights in the former Department of Health, Education, and Welfare. The University objected to her proposed testimony.

The court agreed that Dr. Lopiano cannot testify about the legal requirements imposed by Title IX and cannot opine whether the University met those requirements. The court held that “Dr. Lopiano may not testify regarding the requirements of law because it would give the jury the appearance that the Court is shifting to Dr. Lopiano the responsibility to decide the case.” Explaining the law is the judge’s job, not the expert’s.

Notwithstanding the federal rule that an expert opinion “is not objectionable just because it embraces an ultimate issue,” the court followed the Eighth Circuit’s holding that an expert cannot opine “whether federal law was contravened.” Dr. Lopiano was accordingly prohibited from testifying about the requirements of Title IX or whether SCSU has complied with those requirements.

Expert Testimony About Practices that Avoid Discrimination

On the other hand, the court permitted Dr. Lopiano to testify about the history and purposes of Title IX and about the steps other educational institutions have taken to comply with its mandates. While Dr. Lopiano must walk a fine line by explaining how institutions comply with the law without explaining the law, the court concluded that her testimony about educational practices, which is largely statistical in nature, represents a non-legal (and therefore admissible) expert opinion.

The court also agreed that Dr. Lopiano can testify about the University’s history of responding, or failing to respond, to the interests and abilities of female student-athletes (for example, by failing to add women’s sports that students had informally requested). She can also testify about the underrepresentation of female student athletes and the University’s longstanding failure to address underrepresentation by expanding athletic opportunities for women.

Expert Testimony About Financial Aid

Title IX regulations prohibit sex discrimination in financial aid awards, including those that are athletic-based. The regulations require universities to make a mathematical calculation about the financial aid awarded to male and female students and to eliminate disparities that are not explained by legitimate, nondiscriminatory factors.

The University moved to exclude Dr. Lopiano’s testimony about the mathematical calculation because she is not a mathematician. Alternatively, the University asked for her testimony to be excluded because the calculation is so simple that it requires no expert testimony.

The court, however, determined that Dr. Lopiano’s proposed testimony goes beyond the calculation by discussing the legitimate, nondiscriminatory factors that may or may not explain disparities in the allocation of athletic-based financial aid. As part of that testimony, she can discuss an admittedly simple calculation because all experts are entitled to testify about “basic math” that involves “simple deductive reasoning,” particularly when they have experience making such calculations.

Expert Testimony About Gender Equity in Athletic Benefits

To decide whether an educational institution is providing equal benefits and opportunities to student athletes of both sexes, the Office of Civil Rights examines a laundry list of factors that might differentiate the treatment of male and female students. Dr. Lopiano proposed to undertake that examination to demonstrate that the University failed to provide equal benefits to student-athletes of different sexes.

Dr. Lopiano based her opinions on interviews with a former Director of Athletics and a former Associate Director of Athletics, both of whom recently retired. For example, she asked them to rate facilities as “Superior, Adequate, or Inadequate.” She then compared the number of male students to the number of female students who were given Superior facilities, and so on. She did not independently verify those ratings.

The University objected that Dr. Lopiano based her opinions on hearsay, but experts are entitled to base opinions on inadmissible hearsay of a type reasonably relied upon by experts in a particular field. Dr. Lopiano was following a method she derived from the Athletic Director’s Desk Reference and that she routinely used in her private consulting practice. The court was satisfied that she relied on the kind of data that experts in her field would routinely use to form opinions about gender equity in athletic programs.

The hearsay opinions of the former employees, however, did not address current conditions at the University. The court therefore barred Dr. Lopiano from presenting those opinions to the jury, while allowing her to testify about her conclusion that the University did not provide equal benefits to student-athletes of different sexes under the “laundry list.”

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.