Ng v. Board of Regents of the University of Minnesota

Background

Evan Ng, a sophomore at the University of Minnesota and former member of its men’s varsity gymnastics team, sued the Board of Regents, Mark Coyle in his official capacity as the University’s Athletic Director, and Joan T.A. Gable in her official capacity as the University’s President. He asserted a sex-discrimination claim under Title IX of the Education Amendments of 1972 and a civil-rights claim under 42 U.S.C. § 1983 alleging a violation of the Fourteenth Amendment’s Equal Protection Clause.

The University receives federal funding, so its athletics program is subject to Title IX. The Department of Education’s Office for Civil Rights had found that the University’s athletic participation opportunities were substantially proportionate to undergraduate enrollment for the 2016–2017 academic year. The court noted, however, that the number of female participation opportunities needed to achieve proportionality later increased, reaching 80 by 2019–2020. The University also projected losses of $45 million to $65 million during the 2020–2021 fiscal year because of the Covid-19 pandemic.

In September 2020, the Athletics Program developed a compliance plan intended to address participation numbers and reduce costs. The plan eliminated men’s gymnastics, along with men’s indoor track and field and men’s tennis; an amended version did not eliminate men’s outdoor track and field. The plan eliminated 118 male participation opportunities and 57 female opportunities and was expected to reduce annual costs by about $1.6 million. The Board approved the amended plan by a 7-to-5 vote in October 2020. The men’s gymnastics program was eliminated in April 2021.

Ng filed his complaint on October 29, 2021, and sought a preliminary injunction—a temporary court order intended to preserve the situation while a case proceeds. He asked the court to prevent the University from maintaining its decision to eliminate men’s gymnastics and to reinstate the team during the lawsuit.

Preliminary-Injunction Standard

The court applied four factors: irreparable harm, meaning harm that cannot adequately be repaired later; the balance of harms to the parties; the moving party’s likelihood of success; and the public interest. Ng had the burden of showing that these factors favored an injunction.

Irreparable Harm

The defendants did not dispute that Ng was harmed by losing the opportunity to compete in intercollegiate gymnastics. But they argued that Ng’s approximately 13-month delay in seeking an injunction showed that the harm was not irreparable. The court agreed.

The court explained that preliminary relief generally preserves the existing situation rather than recreating an earlier one. By the time Ng filed the motion, only four former gymnasts still attended the University, no coaches remained, and no Big Ten schedule existed. The record did not show that the team could compete during the 2021–2022 season, and counsel conceded at oral argument that it could not compete that year. The court also found that efforts to resolve the dispute without litigation had ended no later than May 7, 2021, followed by another six-month delay before Ng sought the injunction. The court therefore concluded that Ng had not shown irreparable harm.

Likelihood of Success on the Title IX Claim

The court held that Ng did not have a fair chance of succeeding on his Title IX claim at that stage. It relied on Chalenor v. University of North Dakota, an Eighth Circuit decision that upheld the elimination of a men’s wrestling program where the university cited gender-equity and budget concerns. That decision held that Title IX does not require proportionality but does not prohibit a university from pursuing it, and that private funding did not change the analysis.

The court found the circumstances materially similar. The University cited both financial problems and the need to address female underrepresentation in athletic participation opportunities. The court rejected Ng’s argument that the University could not eliminate men’s gymnastics because it had previously been substantially proportionate. The court found that the University had good reason to believe its situation had changed because the number of female participation opportunities needed for proportionality had risen from 28 in 2016–2017 to 80 later. The court also concluded that Ng had no fair chance of success against Coyle and Gable on the Title IX claims because official-capacity claims against those officials were functionally claims against the University, which was already named as a defendant.

Likelihood of Success on the Equal-Protection Claim

Ng argued that the team’s elimination was a gender-based decision that failed the Fourteenth Amendment’s intermediate-scrutiny test. The court first agreed with the defendants that this claim was an improper collateral attack on Title IX because Ng was challenging actions taken in an effort to comply with Title IX, rather than claiming that Title IX itself was unconstitutional.

The court also addressed the merits of the constitutional claim. Intermediate scrutiny requires the government to show an important objective and a substantial relationship between the gender-based classification and that objective. The court found that the University’s objectives—including addressing female underrepresentation, approaching statistical parity, reducing the risk of future team eliminations, and reducing costs—were important governmental objectives. It also found that the compliance plan was substantially related to those objectives because the University had evidence that participation was no longer substantially proportionate and had suffered major pandemic-related financial losses. The court therefore concluded that Ng did not have a fair chance of succeeding on this claim.

Other Injunction Factors and Disposition

The court found that the balance of harms did not support an injunction because reinstatement could not allow Ng to compete during that season. It also found that the public interest favored allowing the University to make good-faith decisions to comply with Title IX.

Judge Susan Richard Nelson denied Ng’s Motion for a Preliminary Injunction. The order addressed the temporary-relief request; it did not state that the underlying Title IX and equal-protection claims were finally resolved.