Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH C. BARRETT, JESSICA

:

DEUTSCH, ASHLEY GILLMAN,

:

MELANIE HECKERT, STEPHANIE

:

HERRMANN, CAROLINE KRYSTOPOLSKI, :

CARMEN MILLS, KYLA-DAWN LENTI, :

and CECILE ALLEN, on beha lf of themselves :

and all similarly situated individuals,

:

:

Plaintiffs,

:

:

v.

:

:

WEST CHESTER UNIVERSITY

:

OF PENNSYLVANIA OF THE STATE

:

SYSTEM OF HIGHER EDUCATION,

:

MADELEINE WING ADLER,

:

EDWARD M. MATEJKOVIC and

:

BARBARA CLEGHORN,

:

:

Defendants.

:

CIVIL ACTION NO.

COMPLAINT – CLASS ACTION I. Preliminary Statement
1. This is a class action lawsuit charging West Chester University of Pennsylvania of the State System of Higher Education (hereinafter “Wes t Chester University”) with systemic discrimination on the basis of gender in the operation of its intercollegiate athletic program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (hereinafter “Title IX”). The indiv idual Plaintiffs – participants in West Chester University’s intercollegiate athletic program – maintain that West Chester University has violated their statutory rights by failing effectively to accommodate the interests and abilities of women student-athletes and potential student-athletes, and by failing to accord women student -athletes equal treatment and benefits.

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 2 of 15
2. Under Title IX, West Chester University must structure its intercollegiate athletics program so that (1) the participation rate of women is “substantially proportionate” to their undergraduate enrollment rate; or (2) the program demonstrates a “history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities” of women; or (3) the p resent program “fully and effectively” accommodates women’s interests and abilities. See 44 Fed. Reg. 71418 (Dec. 11, 1979). West Chester University’s intercollegiate athletic program fails to meet any of these standards, and the recent elimination of its women’s gymnastics team perpetuates the continuing violation. Through this action, the Plaintiffs seek immediate reinstatement of the women’s gymnastics team and the other judicial remedies available to them to ensure Defendants’ compliance with Title I X.
II. Jurisdiction And Venue 3. This Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§ 1331, 1343, 2201 and 42 U.S.C. § 2000d-7. 4. Venue is proper in the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to Plaintiffs’ claim occurred within this judicial district.
III. Parties 5. Plaintiff Elizabeth C. Barrett is a resident of Stafford, Virginia. 6. Plaintiff Jessica Deutsch is a resident of Butler, Pe nnsylvania. 7. Plaintiff Ashley Gillman is a resident of Sidman, Pennsylvania. 8. Plaintiff Melanie Heckert is a resident of Mount Holly Springs, Pennsylvania. 9. Plaintiff Stephanie Herrmann is a resident of Harrisburg, Pennsylvania. 10. Plaintiff Caroline Krystopolski is a resident of West Chester, Pennsylvania.
2

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 3 of 15
11. Plaintiff Kyla-Dawn Lenti is a resident of Hatfield, Pennsylvania. 12. Plaintiff Carmen Mills is a resident of Harrisburg, Pennsylvania. 13. Plaintiff Cecile Allen is a resident of State College, Pennsylvania. 14. All of the individual Plaintiffs, except Cecile Allen, are now full-time students at West Chester University. Cecile Allen was a full- time student at West Chester University who was forced to transfer to Penn State this fall as a consequence of Defendants’ decis ion to eliminate the women’s gymnastics team. 15. All of the Plaintiffs, who are women, elected to attend West Chester University in significant part because West Chester University offered them an opportunity to compete on an intercollegiate gymnastics team. All of the Plaintiffs were members of the women’s gymnastics team last year, and desire to participate in the team this year and throughout their collegiate careers. 16. All of the Plaintiffs are eligible to participate in intercollegiate athletics under the applicable rules. Specifically, Stephanie Herrmann and Carmen Mills have one year of eligibility remaining; Cecile Allen, Ashley Gillman, Melanie Heckert and Elizabeth Barrett have two years of eligibility remaining; Caroline Krystopolski and Jessica Deut sch have three years of eligibility remaining; and Kyla-Dawn Lenti has four years of eligibility remaining. 17. Defendant West Chester University, which has its principal place of business in West Chester, Pennsylvania, is a public corporation and a member of the Pennsylvania State System of Higher Education. West Chester University receives federal financial assistance. 18. Defendant Madeleine Wing Adler is the President of West Chester University. As the President, Dr. Adler is responsible for the operation of West Chester University and for
3

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 4 of 15
ensuring that West Chester University complies with all federal and state anti -discrimination mandates. Dr. Adler is being sued in her official capacity.
19. Defendant Edward M. Matejkovic is the Director of Athletics of West Ch ester University. As the Director of Athletics, Dr. Matejkovic is primarily responsible for the day -today operation of West Chester University’s intercollegiate athletic program, including its compliance with Title IX. Dr. Matejkovic is being sued in hi s official capacity.
20. Defendant Barbara Cleghorn is the Assistant Director of Athletics for Eligibility and Compliance of West Chester University and, as such, is also responsible for West Chester University’s compliance with Title IX. Ms. Cleghorn is bein g sued in her official capacity.
IV. Class Action Allegations 21. The individual Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(b)(2) on behalf of themselves and on behalf of a class consisting of all present and future West Chester University female students, admitted students and potential students who participate, seek to participate, were deterred or prevented from participating in, or obtaining the benefits of, intercollegiate athletics sponsored by West Chester University. 22. All class members are a ggrieved persons under federal civil rights law as a result of the actions, policies and practices of Defendants. The named individual Plaintiffs seek declaratory and injunctive relief on behalf of themselves and all class members to prevent Defendants from engaging in future illegal conduct and to rectify the effects of present and past discrimination. 23. This matter is properly maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(2) in that:
4

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 5 of 15
(a) The class members are so numerous as to make the join der of all of them impracticable. Based on information and belief, while over 5000 women are enrolled in West Chester University’s undergraduate program as full -time students, and women compromise approximately 60 percent of the West Chester University’s full- time undergraduate student body, less than 50 percent of the participants in West Chester University’s intercollegiate varsity sports program are women. Each year new female students enroll in West Chester University who desire or seek to participate in such athletic activities but are either prevented or deterred from doing so because of the practices of Defendants. All women students at West Chester University face unlawful and inappropriate barriers to intercollegiate athletic opportunities. The failure of West Chester University to take remedial action to overcome the effects of past policies and practices that have discriminated against women in connection with the intercollegiate athletic program continues adversely to affect both individual Plaintiffs and potential class members. Furthermore, West Chester University’s recent decision to disband the women’s gymnastics team denies equal athletic opportunities to present and future West Chester University students who have the interest and ability to compete at the varsity level in gymnastics.
(b) There are questions of law and fact common to the class members. These common questions of law and fact predominate over questions affecting individual class members. Among the questions of law and fact c ommon to the class is whether the practices and conduct of Defendants, as described below, violate the class members’ right to enjoy the benefits of West Chester University’s athletic program on an equal basis with male students.
(c) The claims of the named in dividual Plaintiffs are typical of the claims of the proposed class members. They, as the other class members, are women and they
5

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 6 of 15
have participated in and/or desire to participate in an intercollegiate athletic program. They were members of a viable wome n’s gymnastics team that was disbanded by West Chester University in an illegal and discriminatory fashion. The named individual Plaintiffs, like the class as a whole, are victims of specific discriminatory practices described below. It is these discriminatory practices that form the bases of the named individual Plaintiffs’ and class members’ claims.
(d) The named individual Plaintiffs will fairly and adequately protect the interests of the class members. They are represented by counsel with extensive exper ience in Title IX, civil rights / civil liberties, and class action litigation.
(e) Defendants have acted on grounds generally applicable to the class, thereby making final declaratory and injunctive relief with respect to the class as a whole appropriate.
V. Facts 24. During the 2001-02 academic year approximately 8,725 undergraduate students attended West Chester University full time. Women then comprised roughly 61 percent of the undergraduate student body. Upon information and belief, the percentage of undergrad uate students who are women is approximately the same today, as it was in the 2002 -03 academic year, and in previous years. 25. According to the most recent publicly available report that West Chester University has apparently filed with the United States Depa rtment of Education pursuant to the Equity in Athletics Disclosure Act, 20 U.S.C. § 1092, during the 2001 -02 academic year 534 students participated in West Chester University’s varsity athletic program. Although women comprised over 60 percent of the student population, women comprised only 44.6 percent of the
6

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 7 of 15
participants on the intercollegiate varsity teams offered by West Chester University. Upon information and belief, the disparity between the rate of participation in intercollegiate athletics among women and women’s enrollment is approximately the same today.
26. West Chester University’s practice of providing its male students with greater athletic opportunities has continued over time. Upon information and belief, West Chester University does not offer its female students opportunities to participate in intercollegiate athletics substantially proportionate to the percentage of women enrolled as students. West Chester has favored male athletes in other ways as well, such as by consistently providing t he men’s teams with more coaches at higher salaries and allocating men’s teams greater resources for recruiting, student aid and operating expenses.
27. Gymnastics numbers among the women’s sports traditionally offered by West Chester University. West Chester University formed one of the first women’s collegiate gymnastics teams in the United States, and has regularly competed nationally since the 1960s, garnering, among other achievements, over 200 victories and two undefeated seasons while boasting numerous AIAW and NCAA All- Americans.
28. Despite this proud history, West Chester University has in recent years withheld adequate support from the women’s gymnastics team, frequently changing coaches, failing to hire assistant coaches, providing coaches with inadequate and unequal compensation, neglecting to provide the team with adequate publicity and recruiting resources, and denying the members of the team necessary equipment, practice opportunities and the chance to compete in meets and prestigious national competitions for which they have qualified.
7

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 8 of 15
29. Gymnastics continues to be a highly popular sport among girls of high school age in Pennsylvania, from which West Chester University draws approximately 90 percent of its undergraduate students.
30. Nine students particip ated in the West Chester University women’s gymnastics team in the 2002-03 academic year. One team member, Plaintiff Kyla -Dawn Lenti, could not compete last year due to injury but has now recovered. Only one member of the team graduated last year, while five newly recruited female students gained admission to West Chester University and were planning to join the team for the 2003 -04 season.
31. Last season, the West Chester University women’s gymnastic team, an NCAA Division II team, completed a full competit ive season of nine meets against schools in all three NCAA divisions, including Division I teams at the University of Pennsylvania and Temple University. The team bettered its record three times and two team members qualified to compete in the USAG National Collegiate Championship, while one team member, was named Eastern Collegiate Athletic Conference (“E.C.A.C”) Rookie of the Year in Division II women’s gymnastics.
32. Upon information and belief, the coach of the West Chester University women’s gymnastics team had arranged for a full schedule of meets for the upcoming season, which was scheduled to begin in January 2004.
33. On or about April 28, 2003, citing budgetary problems, West Chester University announced that it would be cutting women’s gymnastics team, as well as the men’s lacrosse team, in the 2003-04 academic year.
34. West Chester University simultaneously announced that it would add women’s golf to its roster of intercollegiate sports in the 2003 -04. Upon information and belief, the
8

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 9 of 15
number of slots on the golf team open to female students will be no greater than the number of female students who have participated in women’s gymnastics.
35. Upon information and belief, at the time that West Chester University made the announcement that it would add a women’s golf team, West Chester University had not undertaken adequate efforts to determine whether there presently were female students at West Chester University who had interest in participating in an intercollegiate golf team or the ability to compete at the varsity level.
36. Upon information and belief, although the West Chester University golf team engages in intercollegiate competition in September and October, and advertises its team as a men’s and women’s team in university-sponsored promotional literature, t here are now no women on the team.
37. Upon learning of West Chester University’s decision to eliminate the women’s gymnastics team, four of the five new recruits elected to enroll elsewhere. Plaintiff Cecile Allen reluctantly transferred to another school o ffering intercollegiate gymnastics, although she will have to try out for a spot on the team, she may not be permitted to complete her major, and the cost of her education has consequently increased significantly.
38. The remaining individual Plaintiffs cannot transfer to schools offering intercollegiate gymnastics without incurring similar significant costs and face the uncertainty of whether they will be permitted to join the schools’ gymnastics teams. They have the interest and ability to participate in women’s intercollegiate gymnastics at West Chester University this year and for the remaining years of their eligibility.
39. West Chester University has failed to provide equal opportunities for female athletes and has provided more opportunities for male athlet es than female athletes.
9

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 10 of 15
40. Notwithstanding the elimination of the men’s lacrosse team and the alleged addition of women’s golf, the opportunities available to female students at West Chester University to participate in intercollegiate athletics still are no t substantially proportionate to the enrollment of women at the institution.
41. West Chester University does not have a continuing practice of program expansion in response to the developing interests and abilities of women. West Chester University historically has made unsatisfactory efforts to equalize women’s and men’s athletic opportunities. Rather than significantly increasing support in a manner that would proportionately reflect West Chester University’s student population and enhance women’s athletic opportunities, West Chester continues to favor men’s athletic teams.
42. The interest and abilities of women are not fully and effectively accommodated by West Chester University’s present intercollegiate athletic program.
43. West Chester University fails and co ntinues to fail to provide women athletes with opportunities to participate in intercollegiate athletics equal to or similar to that provided to its male athletes. It has consistently provided greater athletic benefits and opportunities to male athletes.
44. Rather than increasing intercollegiate athletic opportunities for women so as to bring West Chester University into compliance with Title IX, West Chester University has implemented program cuts that perpetuate the gender -based inequalities historically present in its intercollegiate athletic program.
45. The individual Defendants have operated the intercollegiate athletic program in a manner that permits and fosters the gender -based inequalities described above. They are
10

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 11 of 15
responsible for the program cuts that have diminished participation opportunities for women at West Chester University.
46. Although the individual Defendants were put on notice that eliminating the women’s gymnastics team would violate Title IX, the individual Defendants nevertheless eliminated the team and have refused to reinstate it.
47. The individual Plaintiffs, who selected West Chester University due, in significant part, to its gymnastics program, have lost their opportunity to compete in intercollegiate athletics through Defendants’ actions. Each has also been placed in the position of attending a college that she would not have selected had she known that there would be no gymnastics team. Each has therefore lost the prestige, status, reputation, personal growth, development and financial support that come from participation on intercollegiate athletic teams.
48. The class Plaintiffs are deprived of opportunities to participate in intercollegiate athletics, the enjoyment derived from observing and following their school’s teams, and the pride inherent in being a part of a University which values and appreciates the accomplishments of women athletes, and the financial support that they would have received as members of the women’s gymnastics team.
COUNT I (Title IX, 20 U.S.C. § 1681(a) et seq.) 49. The preceding allegations are re-alleged and incorporated herein. 50. Title IX of the Education Amendments of 1972 provides in relevant part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . . 20 U.S.C. § 1681(a).
11

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 12 of 15
51. Regulations interpreting the requirements of Title IX were promulgated by the
United States Department of Education and/or its predecessor and have the force and effect of
law. The regulations enumerate specific requirements that apply to athletic programs.
34 C.F.R. §§ 106.37, 106.41.
52. The regulations require schools receiving federal financial assistance and offe ring
athletic programs to provide equal athletic opportunity for both men and women.
34 C.F.R. § 106.41(c).
53. The Office for Civil Rights (“OCR”) of the United States Department of
Education is charged with enforcement of Title IX. OCR and/or its predeces sor have
promulgated the 1979 Policy Interpretation of Title IX (the “Policy Interpretation”), the 1996
Clarification of Intercollegiate Athletics Policy Guidance: the Three -Part Test (the
“Clarification”), and the 2003 Further Clarification of Intercolle giate Athletics Policy Guidance
Regarding Title IX Compliance (the “Further Clarification”), which provide in pertinent part that
compliance with Title IX’s requirement of effectively accommodating the interests and abilities
of female students will be eva luated by determining:
(a) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
(b) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or
(c) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have b een fully and effectively accommodated by the present program.
12

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 13 of 15
Policy Interpretation, 44 Fed. Reg. 71418 (Dec. 11, 1979). If the institution cannot meet any of these three standards, then the institution is in violation of Title IX. See id.
54. As described above, West Chester University does not meet any of the three standards for compliance with Title IX.
55. The elimination of the women’s gymnastics team further violates the three -part accommodation compliance test because it further burdens women, who are a lready disadvantaged by the present athletic program, and deprives West Chester University female students of a viable program that has sufficient interest, ability and available competition to sustain it.
56. Defendants have a duty actively to encourage the d evelopment of intercollegiate competition for women’s gymnastics because overall athletic opportunities within West Chester University’s competitive region have been historically limited for women.
57. Under Title IX, West Chester University must also afford i ts female students equivalence of other athletic benefits. The implementing regulations consider, inter alia, the provision of equipment and supplies; scheduling of games and practice time; travel and per diem allowance; opportunity to receive coaching and academic tutoring; assignment and compensation of coaches and tutors; provision of locker rooms, practice and competitive facilities; provision of medical and training facilities and services; provision of housing and dining facilities and services; and publicity. 34 C.F.R. § 106.41(c)(2)-(10).
58. As described above, West Chester University does not afford its female students equivalent athletic benefits.
13

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 14 of 15
59. Defendants have intentionally adopted and implemented policies and have engaged in a course of conduct, as described above, which discriminates against the individual and class Plaintiffs on the basis of their gender.
60. Since the above-described conduct subjects Plaintiffs to exclusion from participation and/or discrimination on account of gender in an educat ional program or activity receiving Federal financial assistance, Title IX has been violated.
WHEREFORE, Plaintiffs request judgment in their favor and request that this Court:
(a) Certify this action as a class action for declaratory and injunctive relief on behalf of all present and future West Chester University female students, admitted students and potential students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics at West Chester University;
(b) Declare that Defendants have engaged in a past or continuing pattern and practice of discrimination against women on the basis of sex in intercollegiate athletics in violation of Title IX, the Title IX regulations, and Policy Interpretation, the Clarification, and the Further Clarification;
(c) Pending a trial on the merits, issue a preliminary injunction ordering Defendants to reinstate women’s gymnastics as a West Chester University- funded intercollegiate athletic team, to employ a fully qualified coach for the team , to provide the team with funding and other benefits commensurate with its status as an intercollegiate team, and prohibit Defendants from eliminating any West Chester University- funded women’s intercollegiate athletic team unless, both before and after t he elimination, equality of opportunity for women has been achieved;
14

Case 2:03-cv-04978-RBS Document 1 Filed 09/04/03 Page 15 of 15

(d) After a hearing on the merits, issue a final injunction ordering Defendants to reinstate women’s gymnastics as a West Chester University- funded intercollegiate athletic team and prohibit Defendants from eliminating any West Chester University- funded intercollegiate athletic team unless, both before and after the elimination, male and female students are provided equal opportunities to participate in West Chester University - funded intercollegiate athletics; and prohibit Defendants from treating West Chester University’s female athletes in a gender-discriminatory manner;
(e) Award Plaintiffs their expenses and costs, including reasonable attorneys’ fees;
(f) Award such other and further relief as the Court deems necessary and proper.
Respectfully submitted, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.

Dated: September 4, 2003

By: ____________________________________ William T. Hangley Sharon F. McKee Attorney I.D. Nos. 03533, 81499 HANGLEY ARONCHICK SEGAL & PUDLIN One Logan Square, 27th Floor Philadelphia, Pennsylvania 19103 (215) 568-6200 (215) 568-0300 (facsimile)
Leslie A. Brueckner TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. 1717 Massachusetts Avenue, NW, Suite 800 Washington, D.C. 20036-2001 (202) 797-8600 (202) 232-7203 (facsimile)
15

 
 Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 1 of 31
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH C. BARRETT, et al.,

:

:

:

v.

:

:

:

WEST CHESTER UNIVERSITY

:

OF PENNSYLVANIA OF THE

:

STATE SYSTEM OF HIGHER

:

EDUCATION, et al.

:

CIVIL ACTION NO. 03-CV-4978

Surrick, J.

MEMORANDUM & ORDER

November ___, 2003

I. INTRODUCTION Plaintiffs, eight1 members of the former West Chester University Women’s Gymnastics
Team, bring this lawsuit2 against West Chester University (“WCU”); Madeleine Wing Adler,

President of WCU; Edward M. Matejkovic, Director of Athletics; and Barbara Cleghorn, Assistant

1 As originally filed, this lawsuit included a ninth plaintiff, Cecile Allen. Plaintiffs subsequently withdrew Allen as a Plaintiff, agreeing that she lacked the requisite standing for the preliminary injunction because she had transferred to Penn State University after West Chester University announced its decision to eliminate the gymnastics program. Plaintiffs agreed to the withdrawal “so long as it was (i) without prejudice to any claim she [Allen] might make in separate proceedings, and (ii) without prejudice to her reentering this litigation in the event that the scope of remedies sought make that appropriate.” (Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss at 13.) We will dismiss Allen without prejudice.
2 As originally filed, Plaintiffs brought this lawsuit as a class action. However, Plaintiffs did not subsequently move for class certification. Accordingly, we proceed with only the eight named individuals as plaintiffs to this lawsuit.
1

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 2 of 31
Director of Athletics for Eligibility and Compliance, alleging gender discrimination in education under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. Presently before the Court is Plaintiffs’ Motion for a Preliminary Injunction Directing Defendants to Reinstate the West Chester University Women’s Gymnastics Team. For the following reasons, the Preliminary Injunction will be granted. II. FACTUAL BACKGROUND
WCU is a public university, one of fourteen universities that comprise the Pennsylvania State System of Higher Education. As a member of the National Collegiate Athletic Association (“NCAA”) Division II,3 WCU currently provides its students with twenty-two intercollegiate athletic teams, ten for men and twelve for women. The most recent change in the composition of these twenty-two teams came on April 28, 2003, when WCU announced that it would eliminate both women’s gymnastics and men’s lacrosse. At that same time, WCU added women’s golf to the already existing men’s golf program. Immediately upon hearing the announcement, Plaintiffs began their attempts to have the gymnastics program reinstated.
Plaintiffs wrote a letter to the Office of the President at WCU, expressing their desire to have the team reinstated. The letter went unanswered. (Tr. at 29:10-16, 33:12-15, S. Herrmann, Sept. 29, 2003.) Plaintiffs also consulted with concerned parents. One such parent, James Barrett, contacted the Department of Education’s Office for Civil Rights (“OCR”) and filed a complaint with that office on May 3, 2003. On May 7, 2003, Barrett received a notice indicating that his complaint was being processed. On or around May 18, 2003, Barrett also contacted Trial Lawyers for Equal Justice
3 While officially a Division II university, many of WCU’s intercollegiate athletic teams actually compete across the three NCAA divisions.
2

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 3 of 31
(“TLEJ”), and began the process of retaining their services.4 Before the end of May, Brenda Johnson, the Investigative Team Leader with OCR, contacted Barrett regarding the complaint. At that time, Barrett believed OCR was acting on the complaint. Sometime in early July, Barrett learned that OCR had drafted a letter to WCU, but that the letter was “hung up” in the Department of Education in Washington, DC. On or around July 7, 2003, Barrett withdrew the complaint with OCR because it became apparent that OCR would be unable to act quickly enough to have the team reinstated with sufficient time to prepare for the 2004 season. (Tr. at 15:9-25, 17:6-19:25, J. Barrett, Oct. 1, 2003.)
On July 25, 2003, shortly after TLEJ agreed to represent Plaintiffs, TLEJ mailed a demand letter to WCU. The July 25th letter stated that TLEJ believed that WCU violated Title IX when it eliminated the women’s gymnastics team. The letter went on to request a meeting with WCU in order to avoid costly litigation. TLEJ received no response. After one week, TLEJ contacted WCU and learned that many of the WCU representatives were on vacation and unavailable to meet. Sometime later, TLEJ spoke with Jeff Cooper, an attorney for WCU, who stated that his clients were not interested in meeting or settling the matter. Despite Cooper’s initial statement, a meeting finally took place. On August 26, 2003, TLEJ attorney, Leslie Brueckner, and Plaintiffs’ local counsel, Sharon McKee, represented Plaintiffs in a meeting with WCU Athletic Director, Edward Matejkovic; Vice President for Student Affairs, Matthew Brickett; and at least two other WCU administrators. Plaintiffs’ attorneys detailed what they believed to be the strengths of Plaintiffs’ case
4 As a public interest law firm, TLEJ must obtain the approval of its board before getting involved in any matter. In addition, TLEJ has a lengthy intake process where hundreds of claims are reviewed each month. It was not until late June or early July that Plaintiffs actually retained TLEJ as counsel. At that time, TLEJ also began the process of seeking local counsel to try the case, if needed. (Tr. at 30:3-15, 36:14-21, L. Brueckner, Oct. 1, 2003.)
3

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 4 of 31
and stated that they believed Plaintiffs would prevail in litigation, including damages for attorney’s fees, but did not want to waste “precious time” in litigating the matter. (Tr. at 31:25-34:14, 37:19, L. Brueckner, Oct. 1, 2003.) Defendants said they would need time to consider the matter. Plaintiffs set a deadline of noon on Friday, August 29, 2003. Plaintiffs heard nothing, and on September 4, 2003, Plaintiffs filed their Complaint and present Motion for a Preliminary Injunction Directing Defendants to Reinstate the West Chester University Women’s Gymnastics Team. (Id. at 37:19-21; Doc. Nos. 1-2.)
In examining the events culminating in WCU’s decision to eliminate the women’s gymnastics team, we begin with WCU’s Athletic Department. In 1995, Matejkovic began his tenure as athletic director, the eighth such director in eight years. Matejkovic inherited a department in chaos and was immediately faced with challenges in the area of gender equity. (Tr. at 39:6-24, E. Matejkovic, Oct. 1, 2003.) Sometime in 1995, Deborah Anekstein, an administrative assistant and “pseudo athletic administrator” in the Athletic Department, drafted a memo to Matejkovic explaining what she described as WCU’s shortcomings in the area of Title IX. (Id. at 40:18-42:10, E. Matejkovic, Oct. 1, 2003.) That memo indicated that Anekstein believed that WCU failed to meet the first two prongs of the accommodation test and that, at that time, it was impossible to determine whether WCU was fully and effectively meeting the interests of its female students under prong three.5 (Pls.’ Trial Ex. 86 at 553-54.)
In 1998, the Athletic Department created the Sports Equity Committee (“Committee”), “[t]o obtain a basic and working knowledge of Title IX in order to begin the task of ensuring that the athletics program is in compliance with the law.” (Pls.’ Trial Ex. 88 at unnumbered 2.) The
5 The three-part test for accommodation is hereinafter discussed in greater detail. 4

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 5 of 31
Committee’s report, issued on April 6, 2000, stated: “Upon examination of WCU’s athletics
program, it has been determined that (1) student athletic participation is not proportional to the rates
of enrollment, and (2) WCU does not have continuing program expansion for women (the
underrepresented sex).” (Pls.’ Trial Ex. 96; Recommendations of the Sports Equity Committee for
Achieving Gender Equity in Athletics at 1.) The Committee then stated that because it could not
initially determine whether WCU was in violation of prong three, it conducted a student survey.
Based on the results of this survey, the Committee determined that WCU was “meeting the
‘interests’ of its students.” (Id. at 1-2.) Plaintiffs question the reliability of this survey.
In May 2001, the Committee voiced its frustration with WCU’s failure to take sufficient
action to bring the school in compliance with Title IX in the area of coaching. In a strongly worded
letter to Matejkovic the Committee stated:
WCU continues to fall short regarding compliance. The Sports Equity Committee had been hopeful that the University would take a pro-active stand and address the coaching inequities that place the institution in violation of Title IX. We see the inaction of the University as placing West Chester University in jeopardy of civil litigation and/or investigation by the Office of Civil Rights.... We have presented a plan that will help eliminate the possibility of legal action and have been ignored. This work would be used effectively against us in a legal action. We will not be a part of setting up our institution for greater difficulties regarding a Title IX investigation or litigation.
(Pls.’ Trial Ex. 101 at 772.)
Additional information regarding WCU’s noncompliance with Title IX was directed to the
Office of the President. On April 26, 2001, Adler instructed the Athletics Advisory Board
(“Advisory Board”) to conduct a review of women’s gymnastics, men’s tennis, men’s golf, and
5

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 6 of 31
men’s lacrosse. The Advisory Board spoke with other athletic departments and WCU officials. After considering information gathered from these sources, the Advisory Board responded to Adler citing its concern in the area of Title IX and stating: “[W]e cannot recommend dropping Women’s Gymnastics.” (Pls.’ Trial Ex. 20; Memorandum from Moran to Adler of 11/15/01.)
During the first two months of 2003, WCU learned that it would likely suffer a five percent reduction in its state funding. The Office of Student Affairs, with the Athletic Department being its largest sub-division, was faced with the challenge of cutting $260,000 from its budget. The Athletic Department was asked to absorb between $95,000 and $98,000 of those cuts. This economic reality required that Matejkovic make difficult decisions regarding the status of WCU’s Tier C athletic teams.6 (Tr. at 166:23-25, 169:5-10, E. Matejkovic, Oct. 1, 2003.)
During the 2002-03 academic year, nine women participated on the WCU’s gymnastics team. Plaintiffs lost one teammate to graduation and claim that three of their five recruits for the year 2003-2004 decided to enroll elsewhere upon hearing of the team’s elimination. In addition, the announcement caused one teammate, Cecile Allen, to transfer to Penn State University. (Pls.’ Mem. of Law in Supp. of Pls.’ Mot. for a Prelim. Inj. Directing Defs. to Reinstate the West Chester University Women’s Gymnastics Team at 9 [hereinafter Pls.’ Mem. for Prelim. Inj.].) It appears that there are currently nine identifiable women who would participate on the gymnastics team if it were reinstated.
6 In 1999, the Athletic Department had relegated four intercollegiate teams – men’s lacrosse, tennis and golf, and women’s gymnastics – to Tier C status. As a result, these teams would operate on a smaller budget than those teams in Tiers A and B. (Pls.’ Trial Ex. 22 at 13435.)
6

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 7 of 31
Upon eliminating both the women’s gymnastics and the men’s lacrosse teams, WCU invited women to participate in the previously all male golf program. Plaintiffs claim that, prior to making its decision to include women in the golf program, WCU failed to investigate whether the university’s women athletes were interested in participating in the sport. The Athletic Department currently has a tentative spring schedule set for the women’s golf team. At this time, there is only one other competitor with a women’s golf program. In addition, the future coach of the women’s team, (currently serving as the coach of the men’s golf team), has corresponded with women who have an interest in the women’s golf team, but as of yet, there are no definite players for the team. (Tr. at 28:3-7, M. Maurer, Sept. 30, 2003.)
With this background, we turn to the role of Title IX in this case and its effect on the Athletic Department at WCU.
III. JURISDICTION This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331.
IV. LEGAL FRAMEWORK OF TITLE IX Title IX prohibits gender discrimination by educational institutions receiving federal
funding. The statute provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....”
20 U.S.C. § 1681(a). The parties agree that WCU is a public university and receives federal funding, thus
7

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 8 of 31
subjecting the university to Title IX and its regulations. The U.S. Department of Education has
promulgated regulations for programs that receive federal funds. Title IX regulations in the
realm of athletics provide:
General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.7
34 C.F.R. § 106.41(a).
The regulations further provide that “[a] recipient which operates or sponsors
interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic
opportunity for members of both sexes.” 34 C.F.R. § 106.41(c). The regulations instruct that
equal opportunity is defined by the following program factors:
1. Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
2. The provision of equipment and supplies; 3. Scheduling of games and practice time; 4. Travel and per diem allowance; 5. Opportunity to receive coaching and academic
tutoring; 6. Assignment and compensation of coaches and
tutors; 7. Provision of locker rooms, practice and
competitive facilities; 8. Provision of medical and training facilities and
7 Despite the wording, the regulations do make exceptions for gender-segregated teams. 34 C.F.R. § 106.41(b).
8

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 9 of 31
services; 9. Provision of housing and dining facilities and
services; 10. Publicity. 34 C.R.F. § 106.41(c). The Office for Civil Rights in the Department of Education is authorized to issue regulations effectuating the provisions of Title IX. 20 U.S.C. § 902. In 1979, OCR published Policy Interpretations to provide a better understanding of Title IX’s athletic provisions and the Department of Education’s regulations. More specifically, the Policy Interpretation’s purpose is to “‘clarif[y] the obligations which recipients of Federal aid have under Title IX to provide equal opportunities in athletic programs. In particular, the Policy Interpretation provides a means to assess an institution’s compliance with equal opportunity requirements of the regulation which are set forth at [34 C.F.R. §§ 106.37(c) and 106.41(c)].’” Cohen v. Brown Univ., 809 F. Supp. 978, 983 (D. R.I. 1992) [hereinafter Cohen I] (citing 44 Fed. Reg. 71,415 (Dec. 11, 1979)). The clarifications of the regulations state that the test for compliance does not require recipients of federal funds to provide identical opportunities for men and women, rather, the test is a comparison of the: [A]vailability, quality and kinds of benefits, opportunities and treatment afforded members of both sexes. Institutions will be in compliance if the compared program components are equivalent, that is, equal or equal in effect. Under this standard, identical benefits, opportunities, or treatment are not required, provided the overall effect of any differences is negligible. 44 Fed. Reg. 71,415 (Dec. 11, 1979). Focusing on the goal of equal opportunity, the Policy Interpretation examines three areas: athletic scholarship; equal treatment as determined by recruitment and the support services
9

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 10 of 31
outlined in factors two through ten of section 106.41(c); and “the effective accommodation of
student interests and abilities,” which is identified in the first of the ten section 106.41(c) factors.
Cohen I, 809 F. Supp at 984. As discussed below, Plaintiffs allege non-compliance in the areas
of both treatment and accommodation. However, as with most Title IX cases, the core of
Plaintiffs’ case falls in the area of accommodation. The Policy Interpretation outlines a three-
part test to determine compliance in the area of accommodation:
1. Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to the respective enrollments; or
2. Where the members of one sex have been and are underrepresented among intercollegiate athletics, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
3. Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as cited above, whether it can be demonstrated that the interests and abilities of the members of the sex have been fully and effectively accommodated by the present program.
44 Fed. Reg. 71,418 (Dec. 11, 1979).
Plaintiffs have the burden of proving that the school has failed to meet the first prong. If
successful, the burden then shifts to the Defendants who bear the burden under the second and
third prongs. Favia v. Indiana Univ. of Pa., 812 F. Supp. 578, 584 (W.D. Pa. 1993) [hereinafter
Favia I]. In Cohen v. Brown Univ., 991 F.2d 888, 897-98 (1st Cir. 1993) [hereinafter Cohen II],
the First Circuit explained that universities that wish to remain on the “sunny side” of Title IX
10

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 11 of 31
can do so by simply complying with the first factor.8 That is, compliance is satisfied when the school provides equal participation opportunities for men and women in proportion with the male to female ratio of the student body. However, the “second and third parts of the accommodation test recognize that there are circumstances under which, as a practical matter, something short of this proportionality is a satisfactory proxy for gender balance.” Cohen II, 991 F.2d at 898. In the instant case, the parties have stipulated to the fact that WCU does not meet the first prong. Therefore, the burden is on Defendants to prove that WCU complies with either the second or third prong. Favia I, 812 F. Supp at 584 (placing the burden of proof for the second and third prongs on the university).
V. DISCUSSION In seeking a preliminary injunction, a plaintiff must show: (1) a likelihood of success on
the merits; and (2) a probability of irreparable harm. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990) (citing Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989)). In addition, courts must consider the effect a preliminary injunction would have on other interested persons and the public interest. Arthur Treacher's Fish & Chips, Inc. v. A & B Mgmt. Corp., 689 F.2d 1137, 1143 (3d Cir. 1982).
A. The Likelihood of Success on the Merits 1. Plaintiffs’ Claim Under Title IX
8 The most recent guidance from OCR states that universities should not consider the first prong to be a “safe harbor” any more than the second or third. That is, a university can bring itself within compliance by proving it meets any one of the three prongs. (Pls.’ Mem. for Prelim. Inj. at Ex. 4.)
11

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 12 of 31
Plaintiffs make two distinct Title IX claims in the areas of equal treatment and equal accommodation.
a. Equal Treatment Plaintiffs contend that women have been denied equal treatment in two separate areas: coaching support and recruiting money. The Department of Education’s regulations list coaching opportunities and coaches’ compensation as two of the ten factors in determining equal opportunity. 34 C.F.R. § 106.41(c)(5-6). In the area of coaching, it is apparent that WCU fails to not only provide equal coaching services to its male and female athletes, but WCU also pays the coaches of its women’s teams less than the coaches of its men’s teams. (Decl. of Christine Grant at ¶ 13.) Prior to April 2003, WCU offered one more team for women than for men. Despite that fact, Plaintiffs present evidence that women’s teams receive “just 44% of the coaches and these coaches earn only about 40% of the dollars West Chester University spends on coaching salaries.” (Id.) In the area of assistant coaches, the disparity is even greater. Men’s teams benefit from twenty-one assistant coaches, while women’s teams have only fourteen. Id. In addition, assistant coaches of men’s teams earn nearly three times that of their counterparts on women’s teams. Id. There is even greater inequity in the number of dollars spent on recruiting for women’s teams as compared to men’s teams. Although recruiting is not listed as a factor under 34 C.F.R. section 106.41(c), the Policy Interpretations do identify this area as significant. Cohen I, 809 F. Supp. at 997 (identifying recruiting dollars as a “target area” under the Policy considerations and finding a disparity in Brown University’s allocation of those funds). In 2001-02, women’s
12

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 13 of 31
recruiting accounted for less than thirty-eight percent of that spent on recruiting male athletes to WCU. (Decl. of Christine Grant at ¶ 13 (analyzing the relevant figures in WCU’s Equity in Athletics Disclosure Act (“EADA”) reports).) Plaintiffs’ assertion that WCU has failed to comply with Title IX’s equal treatment requirement in the areas of coaching and recruiting appears to be correct.
b. Equal Accommodation As stated, the core of Plaintiffs’ complaint and present request for a preliminary injunction falls squarely within the area of equal accommodation. We are satisfied that Defendants have failed to meet all three prongs of the accommodation test.
i. Prong One The parties have stipulated that WCU does not meet prong one’s proportionality requirement. However, a brief discussion of this prong is helpful. According to the most recent EADA report, covering the 2001-02 academic year,9 WCU had a student body size of 8,725. Male undergraduates were 39.2% of the student body, while females comprised 60.8%. (Pls.’ Trial Ex. 33 at unnumbered 1.) However, the total number of female participants in intercollegiate athletics during that same year was only 44.6%, as compared to a male participation rate of 55.4%. (Id. at Table 1.) As both parties acknowledge, WCU fell short of compliance by 16.2%. With the elimination of both the men’s lacrosse and women’s gymnastics teams, that disparity will be closer to 12 or 13%. (Tr. at 185:17-187:11, B. Cleghorn, Sept. 30,
9 Defendants were required to make the 2002-03 statistics public on October 15, 2003, which was after the conclusion of this hearing. (Pls.’ Mot. for a Prelim. Inj. Directing Defs. to Reinstate the West Chester University Women’s Gymnastics Team at ¶ 9.)
13

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 14 of 31
2003.) ii. Prong Two
While admitting its failure in the area of proportionality, WCU contends that it meets the accommodation test by satisfying the second and third prongs. We disagree. Prong two saves non-proportional schools from violation if they can show “a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex.” 44 Fed. Reg. 71,418 (Dec. 11, 1979). In support if its contention, WCU points to its efforts in the area of gender equity through the formation of its Sport Equity Committee. While we applaud WCU’s recognition of its need to assess equality in athletics, we are concerned with WCU’s failure to heed that committee’s warning: “We see the inaction of the University [in the area of Title IX] as placing West Chester University in jeopardy of civil litigation and/or investigation by the Office of Civil Rights.” (Pls.’ Trial Ex. 101 at 772.) Furthermore, in its April 6, 2000, report, this same committee declared, “WCU does not have continuing program expansion for women (the underrepresented sex).” (Pls.’ Trial Ex. 96 at 694 (emphasis added).)
We agree with the Sports Equity Committee that there is no convincing evidence that WCU has a “history and continuing practice of program expansion.” WCU’s newest women’s team, soccer, was added more than ten years ago, in 1992. Prior to soccer, WCU added women’s cross country in 1979. While Defendants are correct in their assertion that “[t]here are no fixed intervals of time within which an institution must have added participation opportunities” (Defs.’ Mem. in Opp. to Pls.’ Mot. for a Prelim. Inj. at 16 (quoting Bryant v. Colgate Univ., No. 93-CV-
14

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 15 of 31
1029, 1996 WL 328446, at *11 (N.D.N.Y. June 11, 1996)).), we believe that periods in excess of a decade are too long to constitute continued expansion. We find support for this conclusion in Cohen I, where, in 1992, that court determined that “evidence has shown that Brown does not have a continuing practice of program expansion for women athletes, even though it can point to impressive growth in the 1970s.” Cohen I, 809 F. Supp. at 991 (emphasis in original). While Brown also added women’s indoor track in 1982, the Cohen I court was not convinced that these acts constituted continued expansion. Id. Like Brown University, WCU emphasizes its expansion during the 1970s and points to its one addition more than ten years ago. Now, eleven years after the Cohen I decision, we are equally unconvinced that the expansion that took place in the 1970s, followed by one additional women’s team over a decade ago, constitutes a continuing practice of expansion.10
It is also worth noting that the “Policy Interpretation directly links the ‘program expansion’ step to the number of teams and athletes participating in intercollegiate competition, regardless of whether the quality of the program has improved.” Cohen I, 809 F. Supp. at 991. Therefore, Defendants’ showing that coaching for women’s teams has improved, that space and equipment has equalized, and that Athletic Director Matejkovic has developed a plan to ameliorate many of the current inequities, while laudable, does not demonstrate program expansion.
iii. Prong Three
10 While Defendants claim that their expansion of women’s athletics took place in the 1970s, other sources suggest that WCU’s most significant growth in women’s athletics actually came in the 1960s. (Pls.’ Trial Ex. 26 (providing an informal list of WCU’s women’s athletic teams and the years the teams received varsity status).)
15

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 16 of 31
Regarding the third prong, Plaintiffs demonstrated interest by presenting evidence of the hours of training that they have dedicated, and continue to dedicate, to improving themselves as gymnasts. Despite the setbacks they have suffered as a team, Plaintiffs continue to express their interest in competing in gymnastics. For example, last fall Plaintiffs were without a coach until November 13th. As a result, WCU could not permit the team to train in the university’s facilities. During that time, Plaintiffs drove one hour each way to use a public gym in order to practice. Plaintiffs contributed their own money for this expense. (Decl. of Stephanie Herrmann at ¶ 10.) This dedication shows that Plaintiffs are indeed interested in competing.
During the course of testimony, we heard from several of the Plaintiffs regarding their ability to compete. Stephanie Herrmann has been participating in competitive gymnastics for fifteen years and was to be a co-captain for the 2004 season. In high school, Herrmann was named to the 1998 Mid-Penn Champions Team, was twice named to the USA Gymnastics Regional Team, and was Nations’s Capitol Cup Level 9 All-Around Champion. Herrmann was also Pennsylvania State Level 9 All-Around Champion, Regional Level 9 Floor Champion, and Level 9 National Qualifier. As a member of the WCU team, Herrmann gained honors, for herself and her university, as 2001 Eastern Collegiate Athletic Conference Division II Gymnastics Rookie of the Year.11 Herrmann also represented WCU at the USAG Collegiate National Championship. Several of Herrmann’s teammates also gave similar testimony, detailing their equally impressive individual and team achievements.
11 In fact, during each of the last four years a member of the WCU gymnastics team has been named Eastern College Athletic Conference Division II Gymnastics Rookie of the Year. (Decl. of Stephanie Herrmann at ¶ 13.)
16

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 17 of 31
We also heard from Thomas Kovic and Jeff Schepers, head women’s gymnastics coaches from the University of Pennsylvania and Ursinus College. Both coaches competed against WCU during the 2003 season. Kovic described the Plaintiffs’ ability as providing “good and consistent competition.” (Tr. at 9:15-10:1, T. Kovic, Sept. 30, 2003.) Schepers described the Plaintiffs as “very talented” and “capable of competing at the college level.” (Tr. at 18:5-10, J. Schepers, Sept. 30, 2003.)
Defendants present several arguments in support of their claim that the predominantly female student body at WCU is satisfied with forty-five percent of the participation opportunities that the school currently offers. First, Defendants point to the fact that, as a Division II program, gymnasts are unable to compete in the Division I-dominated NCAA national competition, and as a result, the gymnastics program does not serve to accommodate the interests of WCU’s female athletes. Like the district court in Favia I, we are not persuaded by this fact. 812 F. Supp. at 585 (disagreeing with Indiana University of Pennsylvania’s claim that because their gymnasts could not compete in NCAA post-season play that it was justified in eliminating the program). While it is true that WCU gymnasts do not have a realistic opportunity to qualify for the NCAA national competition, they regularly qualify for and compete in the USA Gymnastics National Championship. (Decl. of Carmen Mills at ¶ 6.) This alternative to the NCAA event provides a sufficient level of quality competition and further supports the conclusion that Plaintiffs possess the requisite ability to compete. Id.
Defendants point to their 1999 student survey as additional proof of their success in meeting prong three. However, the Sports Equity Committee failed to follow NCAA guidelines in conducting the 1,200-student survey. As a result, the findings are not reliable. NCAA
17

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 18 of 31
guidelines state that response rates below sixty percent “would almost always be cause for concern because almost half of those selected to represent your school did not participate in the study.” (Pl.’s Trial Ex. 77(a) at 531.) The guidelines further warn that a response rate below sixty percent, would result in findings that “could always be called into question and challenged for their representativeness.” (Id.) Defendants student survey achieved only a 39% response rate. (Tr. at 153:25, B. Cleghorn, Sept. 30, 2003.) In addition, this survey was conducted prior to WCU’s decision to eliminate the women’s gymnastics and men’s lacrosse teams, which, according to the Sports Equity Committee, causes the results to be even less reliable for the present analysis. (Pls.’ Trial Ex. 16 at 1 (“[I]f the University decides to drop women’s gymnastics the survey will become unusable.”).) Overall, the 39% response rate to WCU’s 1,200-student survey was not sufficient to provide the Committee with a reliable basis upon which to conclude that WCU was in compliance with Title IX.12
Defendants argue that they have simply replaced the participation opportunities in gymnastics with those of the future women’s golf team. In light of the present status of the women’s golf team, this argument is unpersuasive. Moreover, even if the golf team were to provide as many female participation opportunities as did the gymnastics team, there is still a significant disparity in proportionality. At present, what Defendants offer as a replacement for a team with a tradition and history of accomplishment is a mere promise of a golf team for next spring. As of now, the golf coach (who is currently coaching the men’s golf team), can only
12 The Sports Equity Committee tried to avert just this problem when it warned Matejkovic that, “Not to use the survey properly could be costly given the current state of affairs within the Department of Athletics; lawsuits or Title IX complaints could cost the University and the Department of Athletics much more than thorough investigation.” (Pl.’s Ex. 81 at 586.)
18

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 19 of 31
present this Court with the names of a few women who have expressed interest in joining the team, and nothing is known about the level of interest of these potential participants or their ability to compete. Again, we do not wish to discourage WCU from developing this opportunity for future women-athletes at the university, and we do not doubt that golf is growing in popularity among college women, but we cannot agree that this golf plan is a viable alternative for a previously successful gymnastic team with ten to fifteen participation opportunities.13
The court in Cohen I found that Brown University could not prove that it had met the interests and abilities of its female athletes because Brown had eliminated “varsity opportunities where there is great interest and talent, and where Brown still has an imbalance between men and women varsity athletes in relation to their undergraduate enrollments.” Cohen I, 809 F. Supp. at 992 (emphasis in original). Like the court in Cohen I, we cannot agree with WCU’s position that it has met the interests and abilities of its female athletes, while lacking proportionality and reducing the viable number of participation opportunities for women.
WCU also contends that its simultaneous decision to eliminate it’s thirty-member men’s lacrosse team actually brings the university closer to proportionality, and therefore entitles them to eliminate women’s gymnastics. We disagree. The court in Roberts v. Colorado State Bd. of Agric., squarely addressed this very issue:
We recognize that in times of economic hardship, few schools will be able to satisfy Title IX’s effective accommodation requirement by continuing to expand their women’s athletics programs. Nonetheless, the ordinary meaning of the word “expansion” may not be twisted to find compliance under this prong when schools
13 We note that reinstating the women’s gymnastics team and creating the women’s golf team would result in significant progress in WCU’s movement toward the goal of proportionality.
19

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 20 of 31
have increased the relative percentages of women participating in athletics by making cuts in both men’s and women’s sports programs. Financially strapped institutions may still comply with Title IX by cutting athletic programs such that men’s and women’s athletic participation rates become substantially proportionate to their representation in the undergraduate population.
998 F.2d 824, 830 (10th Cir. 1993). Accordingly, we conclude that unless and until WCU offers proportional participation opportunities to its male and female athletes, WCU violates the third prong of the accommodation test when it eliminates women’s intercollegiate teams.
2. Plaintiffs’ Right to Bring a Private Cause of Action
a. The Effect of Alexander v. Sandoval
Pursuant to the Supreme Court’s decision in Alexander v. Sandoval, Defendants challenge Plaintiffs’ standing to bring this complaint as a private cause of action. 532 U.S. 275 (2001). Defendants argue that under Sandoval, Plaintiffs, as private citizens, do not have a right to bring a claim for disparate impact discrimination under § 902.14 In Sandoval, the Supreme Court held that a private right of action was not available to enforce disparate impact regulations
14 Like its counterpart in Title VI, § 902 of Title IX states, in part: Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity ... is authorized and directed to effectuate the provisions of section 1681 [§ 901] of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. 20

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 21 of 31
under Title VI.15 Id. The Sandoval court began its analysis by stating three propositions that it
accepted as true. First, there is a private cause of action to enforce § 601 of Title VI. Sandoval,
532 U.S. at 279-80 (citing Cannon, 441 U.S. at 694). Second, “§ 601 prohibits only intentional
discrimination.” Sandoval, 532 U.S. at 280 (citing Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 272 (1978)). Third, “regulations promulgated under § 602 of Title VI may validly proscribe
activities that have a disparate impact on racial groups, even though such activities are
permissible under § 601.” Sandoval, 532 U.S. at 281 (admitting that no Supreme Court majority
opinion had yet held as such and discussing plurality opinions and dicta to support the
proposition). The Court went on to address the central issue before it – whether the plaintiff had
a private cause of action to enforce disparate impact regulations promulgated pursuant to § 602.
In Sandoval, the plaintiff claimed that Alabama’s Department of Public Safety’s policy of
administering all driving tests in English violated Title VI because it had a disparate impact on
15 Title IX was patterned after Title VI and the two statutes are similar both textually and structurally. As a result, courts have relied on precedents interpreting Title VI to guide their understanding of Title IX. Atkinson v. Lafayette Coll., No. 01-CV-2141, 2002 WL 123449, at *5 (E.D. Pa. Jan. 29, 2002) (applying Sandoval analysis to a claim under Title IX in denying a private cause of action under regulations promulgated under § 902). The two statutes have nearly identical wording and courts have construed the two statutes in a similar manner:
Title IX was patterned after Title VI of the Civil Rights Act of 1964. Except for the substitution of the word “sex” in Title IX to replace the words “race, color, or national origin” in Title VI, the two statutes use identical language to describe the benefitted class. Both statutes provide the same administrative mechanism for terminating federal financial support for institutions engaged in prohibited discrimination.
Cannon v. University of Chic., 441 U.S. 677, 694-96 (1979) (finding an implied private right of action for intentional discrimination under Title IX).
21

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 22 of 31
minorities. The plaintiff in Sandoval based the cause of action on a disparate impact regulation promulgated under § 602. The Court classified the regulation before it as “a Department of Justice regulation promulgated pursuant to § 602 of Title VI that forbade recipients of federal funding from ‘utilizing criteria or methods of administration which have the effect of subjecting individuals to discrimination because fo their race, color, or national origin.’” Johnson v. Galen Health Inst., Inc., 267 F. Supp. 2d 679, 693 (W.D. Ky. 2003) (citing 29 C.F.R. § 42.104(b)(2)(1999)). The plaintiff in Sandoval did not state a claim for intentional discrimination. Instead, the Sandoval plaintiff relied solely on a disparate impact theory and claimed that “implicit in the grant of § 602 authority to federal agencies to enact regulations was a private right to sue under § 602 for violations of those regulations.” Johnson, 267 F. Supp. 2d at 693 (discussing the holding in Sandoval). The Court disagreed.
The Sandoval Court marked a clear distinction between those § 602 regulations promulgated to enforce disparate impact claims and those promulgated to enforce claims of intentional discrimination. Regarding intentional discrimination, the Court explained:
We do not doubt that regulations applying to § 601's ban on intentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, ... and it is therefore meaningless to talk about a separate cause of action to enforce the regulations apart from the statute. A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well.
Sandoval, 532 U.S. at 284.
The Court then turned to the issue of disparate impact claims under § 602. It explained that the disparate impact regulations go beyond simply enforcing the § 601 ban on intentional
22

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 23 of 31
discrimination because “they indeed forbid conduct that § 601 permits.” Sandoval, 532 U.S. at 285. The Court further reasoned that because the disparate impact regulations go beyond § 601, it is “clear that the private right of action to enforce § 601 does not include a private right to enforce these [disparate impact] regulations.” Id. Sandoval denies a private right of action for disparate impact claims arising under § 602 of Title VI. We see no reason why Sandoval would not apply to disparate impact claims under § 902 of Title IX. Sandoval, 532 U.S. at 293. Accordingly, Plaintiffs in the instant case cannot pursue a private right of action to enforce disparate impact regulations under § 902.
b. Proving Intentional Discrimination Defendants argue that Plaintiffs do not have a claim of intentional discrimination because Plaintiffs simply cannot prove that WCU acted with animus in making its financially-motivated decision to eliminate both a men’s and a women’s athletic team, while also creating a new women’s team. In making this argument, Defendants point to several steps that the university has taken to address gender equity in athletics. Such steps include forming the Sports Equity Committee, conducting a survey on student participation interests so as to better address the interests of both male and female athletes, and improvements in the areas of equipment and facilities for women athletes. Defendants believe that in light of these acts, it is impossible to prove intentional discrimination. Defendants also state that “there certainly isn’t any question that both men’s lacrosse and women’s gymnastics suffered the same fate, at the same time, under the same circumstances. And since one of those teams is a women’s team and one is a men’s team, I think the implication that we had a decision made because of sex is farfetched.” (Tr. at 4:7-12, C. Tesoro, Oct. 1, 2003.) Defendants’ arguments misconstrue the meaning of “intent” in
23

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 24 of 31
the context of Title IX claims. In the athletics realm of Title IX, intent is found on the face of most decisions. In Neal v.
Board of Trs. of the Cal. State Univs., the Ninth Circuit stated: [A]thletic teams are gender segregated, and universities must decide beforehand how many athletic opportunities they will allocate to each sex. As a result, determining whether discrimination exists in athletic programs requires genderconscious, group-wide comparisons. Because men are not ‘qualified’ for women’s teams (and vice versa), athletics require a gender conscious allocation of opportunities in the first instance.
198 F.3d 763, 772 n.8 (9th Cir. 1999) (emphasis in original). In Haffer v. Temple Univ. of the Commonwealth Sys. of Higher Educ., the district court found that intent was demonstrated by the very existence of “Temple’s explicit classification of intercollegiate athletic teams on the basis of gender.” 678 F. Supp. 517, 527 (E.D. Pa. 1987) (defining intent for the purposes of equal protection). In Pederson v. Louisiana State Univ., the court found intentional discrimination where the university failed to effectively accommodate its female athletes. 213 F.3d 858, 880-81 (5th Cir. 2000). The Pederson court explained that the university’s “ignorance about whether they are violating Title IX does not excuse their intentional decision not to accommodate effectively the interests of their female students by not providing sufficient athletic opportunities.” Id. at 880. Like WCU, the Pederson defendants were already on notice of their potential Title IX violations when they made their decision not to field additional intercollegiate teams for women. Id. The Pederson court further explained that “intentional” simply means the university’s actions were not accidental and defendants “need not have intended to violate Title
24

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 25 of 31
IX, but need only have intended to treat women differently.” Id. at 881.16
WCU considered gender on the face of its decision. Its decision to eliminate the women’s gymnastics team was an intentional act based on gender. It was also a decision that was intentionally made after WCU was put on notice that eliminating the women’s gymnastics team would put it at odds with Title IX. Because the facts call for an analysis based upon intent, not disparate impact, Plaintiffs have a private cause of action under § 901.
c. Regulations Enforcing Intentional Discrimination
Defendants argue that, even if Plaintiffs’ claim were one of intentional discrimination, they would still be prohibited from bringing this cause of action because Plaintiffs do not seek to enforce the general statutory prohibition on sex discrimination, but instead rely on enforcement of the regulations promulgated under § 902. (Defs.’ Reply Mem. in Further Supp. of their Mot. to Dismiss at 8-9.) Defendants contend that “such disparate impact regulations do not invest individuals with a private cause of action, but rather, are guidelines for administrative agency enforcement.” (Mem. of Law in Supp. of Mot. to Dismiss at 3.) If Plaintiffs’ cause of action were premised on impact rather than intent, Defendants’ argument would be correct. However, because Plaintiffs’ claim is based on intent, we are satisfied that, pursuant to Sandoval, the regulations at issue confer a private cause of action. 532 U.S. at 284 (“We do not doubt that regulations applying § 601's ban on intentional discrimination are covered by the cause of action
16 It is worth noting that courts use a similar definition in the context of employment discrimination, where “‘intentional discrimination’ is treated as synonymous with discrimination resulting in ‘disparate treatment,’ which contrasts with ‘disparate impact.’” Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994) (rejecting the claim that plaintiffs must show discriminatory animus to make out a claim of intentional discrimination in employment discrimination).
25

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 26 of 31
to enforce that section.”).
As Defendants state: “Regulations which directly illuminate and effectuate the statutory bans on intentional discrimination are judicially enforceable as part and parcel of the implied causes of action whereby the statutory bans themselves may be enforced.” (Def.’s Reply Mem. in Further Supp. of their Mot. to Dismiss at 5.) See also Sandoval, 532 U.S. at 284 (“A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well.”). The regulation at issue, section 106.41, and its relevant policy interpretations clearly aim to enforce § 901's ban on intentional sex discrimination by demanding equal opportunity in athletics. Because section 106.41 seeks to enforce gender equity in athletics, (an area segregated by sex that triggers intentional discrimination), it follows that Plaintiffs’ claim of intentional discrimination permits a private right of action to enforce the regulation. Defendants agree that section 106.41(a) is enforceable as a private cause of action. “[W]hen it comes to an athletics-related Title IX claim, 34 C.F.R. § 106.41(a) translates the broad prohibition of 20 U.S.C. § 1681 into athletic terms and, as such, is as judicially enforceable as 20 U.S.C. § 1681(a).” (Def.’s Reply Mem. in Further Supp. of their Mot. to Dismiss at 6.) However, Defendants do not extend this reasoning to subsection (c) of section 106.41.17 Defendants’ distinction implies that we should view subsection (a) as enforcing
17 Section 106.41(c) states: Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors...
34 C.F.R. § 106.41(c) 26

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 27 of 31
intentional discrimination and subsection (c) as enforcing disparate impact discrimination because subsection (c) goes “beyond the scope of the main statutory prohibition on intentional discrimination” in § 901. (Defs.’ Reply Mem. in Further Supp. of their Mot. to Dismiss at 7.) We disagree.
Subsection 106.41(a) and subsection 106.41(c) both serve to prohibit intentional sex discrimination. Both authoritatively construe the statute. While subsection (a) admittedly tracts the language of § 901 more closely than subsection (c), we fail to see why that difference triggers a distinction between intentional and disparate impact discrimination. Subsection (a) prohibits sex discrimination in athletics. Subsection (c) prohibits sex discrimination in athletics by requiring equal treatment and prohibiting different treatment. Both subsections “directly illuminate and effectuate the statutory ban on intentional discrimination.” And both apply § 901's ban on intentional discrimination. Plaintiffs may rely on both subsections to enforce their claim of intentional discrimination under § 901.
Based upon the foregoing, we are satisfied that Plaintiffs are likely to prevail on the merits of their claim. Plaintiffs have therefore satisfied the first requirement for a preliminary injunction.
B. Irreparable Harm Plaintiffs have demonstrated a strong likelihood of irreparable harm if the preliminary injunction is not granted. In addressing whether the plaintiffs in Favia I had shown that they would suffer irreparable harm if their university did not reinstate the women’s field hockey and gymnastic teams, the court stated:
27

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 28 of 31
By cutting the women’s gymnastics and field hockey teams, IUP has denied plaintiffs the benefits to women athletes who compete interscholastically: they develop skill, selfconfidence, learn team cohesion and a sense of accomplishment, increase their physical and mental wellbeing, and develop a lifelong healthy attitude. The opportunity to compete in undergraduate interscholastic athletics vanishes quickly, but the benefits do not. We believe that the harm emanating from lost opportunities for the plaintiffs [is] likely to be irreparable.
812 F. Supp. 578, 583 (W.D. Pa. 1993).
Plaintiffs in this case would be subjected to the same irreparable harm if their request for an injunction were denied. In fact, Plaintiffs have already suffered harm. The gymnastics team lost three of its five recruits and one of its former participants when WCU eliminated the team. (Tr. at 5:6-14, S. Herrmann, Sept. 29, 2003 (correcting the numbers originally provided by Herrmann in her declaration at ¶ 14).) This loss adversely impacts the team’s ability to compete and to develop its program. Foregoing the 2004 season pending a full trial would eliminate the program’s ability to attract recruits for the 2005 season and would severely affect the team’s growth and development. Cohen I, 809 F. Supp. at 997-98 (describing the teams’ difficulties in attracting quality players after the teams were downgraded from their varsity status). In addition, November is already upon us and we have therefore passed the time when the team would have ideally begun its regular training. Further loss of training time could lead to a loss in a competitive edge and an increase in the potential for injury. (Tr. at 101:23-103:15, E. Ovalle, Sept. 30, 2003.)
Still another factor demonstrating irreparable harm is the fact that Plaintiffs have a finite period of time in which to compete. Preventing the 2004 season from moving forward will deny
28

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 29 of 31
players one of only four competitive seasons at the college level. Several of the players are in their final year of school and would be denied their last opportunity to compete. Only the reinstatement of the gymnastics program could avoid this harm.
C. Effect on Other Interested Persons This Court recognizes that a preliminary injunction requiring WCU to reinstate the women’s gymnastics team could affect those WCU students who are not currently before us as plaintiffs. Defendants claim that other student-athletes at WCU would suffer if we were to require reinstatement of the gymnastics team. Defendants contend that such an order would override the university’s discretion “regarding the best use of limited resources in its athletic programs with their [the Plaintiffs’] own self-interested proposition that West Chester is prohibited from eliminating a sport in which they participated, regardless of the impact on the University, its programs, and its other students.” (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss at 1.) In examining this factor, courts generally look to the school’s athletic budget and consider the overall expense of reinstating the program as compared with the entire athletic budget. Favia I, 812 F. Supp. at 584 (finding no irreparable harm to the university because the athletic budget had “space for reallocation and cutbacks in other areas”). In the instant case, the dispute actually concerns a relatively small sum of money. WCU could reinstate the women’s gymnastics team for $30,000.18 Athletic Director Matejkovic allocated some of the money previously earmarked for the women’s gymnastics and men’s
18 We understand that this figure does not account for the increased demand that an additional varsity sport would have on support staff such as athletic trainers. However, we also understand that while WCU allocated $30,000 to the women’s gymnastics team in 2002-03, that the failure to hire an assistant coach caused WCU to expend only $25,000 on the team.
29

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 30 of 31
lacrosse teams to make several of the pre-existing Pennsylvania State Athletic Conference (“PSAC”) teams at WCU more competitive. (Pls.’ Trial Ex. 22 at 134 (describing Matejkovic’s plan as one that “appropriates more resources to selected teams and less to others”).) The Athletic Department could reallocate that money from the PSAC teams to the women’s gymnastics team with little or no harm to those PSAC teams since they previously operated without those funds.
Plaintiffs have suggested that WCU could also look to its contingency funds. Currently, WCU has a “catastrophic circumstances” reserve fund of approximately $6 million and a fund earmarked for “critical needs” situations of $3,678,315. (Dep. of M. Mixner at 26:14-16, 28:1123, Sept. 26, 2003; Pls.’ Trial Ex. 75 at 1.) While it is not ideal for any university to dip into its emergency funds to sponsor an athletic team, this is a unique situation and the amount of money involved is not significant.19
We understand that WCU finds itself in a difficult economic situation. However, we observe that WCU could have heeded the warning of its internal committees and avoided this problem. WCU intentionally made the decisions that brought them to this courtroom, knowing full well the potential implications.
D. Public Interest Promoting compliance with Title IX serves the public interest. Cohen I, 809 F. Supp. at
19 We also note that Mark Mixner, Vice President for Administrative and Fiscal Affairs at WCU, testified that it is possible to shift money from these funds to remedy a violation of federal law, although it is not desirable. (Dep. of M. Mixner at 24:3-25:17, 26:1-11, 27:5-29:11, Sept. 26, 2003.)
30

Case 2:03-cv-04978-RBS Document 18 Filed 11/12/03 Page 31 of 31

1001 (stating that “the public interest will be served by vindicating a legal interest that Congress has determined to be an important one”); Favia I, 812 F. Supp. at 585 (“The public has a strong interest in prevention of any violation of constitutional rights.”). Defendants contend that the public interest is served by allowing WCU, a public university, the financial autonomy to decide both which intercollegiate sports best meet the needs and interests of its own students, and how to allocate resources during a difficult economic time. We do not disagree. However, the public interest demands that WCU comply with federal law and in this instance that means compliance with Title IX. “Title IX does not purport to override financial necessity. Yet, the pruning of athletic budgets cannot take place solely in comptrollers’ offices, isolated from the legislative and regulatory imperatives that Title IX imposes.” Cohen II, 991 F.2d at 905. For these reasons, we find the public interest is best served by upholding the goals of Title IX.

VI.

CONCLUSION

In light of West Chester University’s failure to comply with Title IX, we will grant Plaintiffs’ Motion for a Preliminary Injunction Directing Defendants to Reinstate the West Chester University Women’s Gymnastics Team.

An appropriate Order follows.

31

 
 Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH C. BARRETT, et al.,

:

:

:

v.

:

:

:

WEST CHESTER UNIVERSITY

:

OF PENNSYLVANIA OF THE

:

STATE SYSTEM OF HIGHER

:

EDUCATION, et al.

:

CIVIL ACTION NO. 03-CV-4978

SURRICK, J.

MARCH 31, 2006

MEMORANDUM & ORDER

Presently before the Court is Plaintiffs’ Motion For Award Of Attorney’s Fees And Costs

(Doc. No. 32). For the following reasons, Plaintiffs’ Motion will be granted in part and denied in

part.

I. BACKGROUND A. Underlying Litigation1 On April 28, 2003, West Chester University (“WCU”),2 announced its decision to

eliminate its women’s gymnastics and men’s lacrosse programs. At the same time, WCU stated

that it intended to add women’s golf to its athletic program. Immediately thereafter, Plaintiffs,

1 The facts related to the underlying litigation are addressed more thoroughly in our Memorandum and Order dated November 12, 2003 (Doc. No. 18).
2 In addition to WCU, Plaintiffs named the following individuals as defendants: Madeleine Wing Adler, President of WCU; Edward M. Matejkovic, Director of Athletics; and Barbara Cleghorn, Assistant Director of Athletics for Eligibility and Compliance.
1

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 2 of 37
eight members of the women’s gymnastics team,3 began their attempts to have the team reinstated.
James Barrett, a concerned parent of one of the team members, contacted Trial Lawyers for Public Justice (“TLPJ”), a public interest law firm based in Washington, D.C., which ultimately took on the case. TLPJ contacted Hangley Aronchick Segal & Pudlin (“Hangley firm”) and engaged the firm as co-counsel in the matter. TLPJ has been involved in Title IX litigation since 1985 when Arthur Bryant, the Executive Director of TLPJ, served as lead counsel in Haffer v. Temple University, 688 F.2d 14 (3d Cir. 1982). (Bryant Decl., Doc. No. 32 at Ex. 2.) William Hangley, a founder and shareholder of the Hangley firm, is an experienced litigator with experience in Title IX litigation, having participated in the Haffer case. (Hangley Decl., Doc. No. 32 at Ex. 4.) As a public interest law firm, TLPJ does not charge its clients for services rendered but does seek attorney’s fees pursuant to fee-shifting statutes. (Bryant Decl., Doc. No. 32 at Ex. 2.) The Hangley firm, which does charge clients for its services, agreed to work on this case because of the “important social value in enforcing Title IX.” The firm “viewed the risk of loss and the certainty that any payment would be delayed as a pro bono contribution on the firm’s part.” (Hangley Decl., Doc. No. 32 at Ex. 4.)
Plaintiffs’ attempts to have the gymnastics team reinstated without court involvement failed, and on September 4, 2003, Plaintiffs filed the instant lawsuit along with a motion for a preliminary injunction. Plaintiffs claimed that Defendants’ elimination of the women’s
3 As originally filed, this lawsuit included a ninth plaintiff, Cecile Allen. Plaintiffs subsequently withdrew Allen as a Plaintiff, agreeing that she lacked the requisite standing for the preliminary injunction because she had transferred to Penn State University after West Chester University announced its decision to eliminate the gymnastics program.
2

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 3 of 37
gymnastics team violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. Plaintiffs sought to restore the women’s gymnastics team and made specific requests as to the team’s funding and resources.
After the parties fully briefed the issues and following a hearing that spanned four days, we granted Plaintiffs’ request for a preliminary injunction and ordered Defendants to immediately reinstate the women’s gymnastics team. Following our decision, the parties agreed to a settlement which provided that the preliminary injunction would become permanent and that all claims that were not related to the discontinuance of the gymnastics team would be dismissed without prejudice. (Doc. No. 29.) The parties entered into an additional, separate agreement wherein Plaintiffs agreed not to seek a portion of the fees for work that their attorneys performed from January 1, 2004 through completion of the settlement negotiations. (Hangley Decl., Doc. No. 32 at Ex. 4 ¶ 32; McKee Decl., Doc. No. 32 at Ex. 5 ¶50.) Plaintiffs also agreed to forego a portion of the costs that they have incurred in preparing their fee petition. (Id.)
B. Fee Petition Pursuant to 42 U.S.C. § 1988, 28 U.S.C. §§ 1821 and 1920, and Federal Rule of Civil Procedure 54, Plaintiffs presently request attorney’s fees in the amount of $207,609.50 and costs in the amount of $12,477.82, for a total of $220,087.32.4 Defendants object to these totals, contending that the number of hours spent on the litigation and the hourly rate of some of Plaintiffs’ attorneys are unreasonable. Defendants contend that the costs should be reduced and suggest that a reasonable figure for attorney’s fees would be $81,858.10. (Doc. No. 35 at 55-58.)
4 Plaintiffs request that $169,661.28 be awarded to the Hangley Firm and that $50,426.04 be awarded to TLPJ.
3

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 4 of 37
C. Public Policy Concerns WCU is a public university, supported by the taxpayers of Pennsylvania and federal funds. In concluding that the preliminary injunction was appropriate and ordering that the university reinstate its women’s gymnastics program, we recognized the financial problems that WCU faced. Barrett v. West Chester Univ. of Pa., No. Civ. A. 03-4978, 2003 WL 22803477, at *15 (E.D. Pa. Nov. 12, 2003). Like many public universities across the country in 2004, WCU was required to cut expenses as its university-wide budget was reduced.5 We concluded, nevertheless, that Title IX prohibited the reduction of participation opportunities for women athletes at the university. WCU complied, and Plaintiffs competed in the 2004 gymnastics season. Presently before us is Plaintiffs’ detailed request for attorney’s fees and costs. Defendants agree that, pursuant to 42 U.S.C. § 1988, Plaintiffs are entitled to recover fees and costs. However, Defendants suggest that Plaintiffs’ request is unreasonable and that an amount significantly less than Plaintiffs’ request is appropriate. Our task is to carefully review the fee request and determine whether the evidence presented supports the request. In so doing, we will consider the public nature and financial circumstances of Defendants. Alizadeh v. Safeway Stores, 910 F.2d 234, 238 (5th Cir. 1990) (while the non-prevailing party’s financial condition is not appropriate to consider in determining whether to award attorney’s fees, it is appropriate to consider when determining the amount of the attorney’s fees). In a case like this, where the award of attorney’s fees will affect the public treasury and will have a direct impact on the
5 The yearly budget for the women’s gymnastics program at WCU in 2002-2003 was $30,000. Barrett, 2003 WL 22803477, at *29 n.18.
4

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 5 of 37
students at the university, our review must be particularly careful. See Keyes v. Sch. Dist. No. 1, Denver, Colo., 439 F. Supp. 393, 415 (D. Colo. 1977) (in school desegregation case, court considers the fact that “the very entity mandated to restructure its school system . . . will have to further expend public funds for attorneys who brought the restructuring to fruition”). II. LEGAL STANDARD
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, authorizes the district courts to award a reasonable attorney’s fee to prevailing parties in civil rights litigation.6 The purpose of § 1988 is to “ensure ‘effective access to the judicial process for persons with civil rights grievances.’” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 941558, at 1 (1976)). Accordingly, a prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id. (quoting S. Rep. No. 94-1011, at 4 (1976)).
The Supreme Court in Hensley noted that both the House and Senate Reports referred to the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), when describing how courts should determine the amount of a reasonable fee. Hensley, 461 U.S. at 430. Those factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of
6 42 U.S.C. § 1988(b) provides: “In any action or proceeding to enforce a provision of . . . title IX of Public Law 92-318 . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
5

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 6 of 37
the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. at 430 n.3. In assessing the reasonableness of attorney’s fees, courts apply the “lodestar” formula, which multiplies “the number of hours reasonably expended by a reasonable hourly rate.” Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). “When the applicant for fee has carried his burden of showing that the claimed rates and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled.” Id. (quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986)). In determining whether hours were reasonably expended, courts should “review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are excessive, redundant, or otherwise unnecessary.” Id. (quoting Pub. Int. Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995)). Thus, courts have “a positive and affirmative function in the fee fixing process, not merely a passive role.” Id. In calculating a reasonable hourly rate, courts look to the prevailing market rates in the relevant community. Blum v. Stenson, 465 U.S. 886, 895 (1984). The attorney’s typical billing rate is a starting point for the court’s determination, but it is not dispositive. Windall, 51 F.3d at 1185.
6

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 7 of 37
III. DISCUSSION A. Attorney’s Fees 1. Hourly Rate for the Hangley Firm While Defendants acknowledge, and we agree, that William Hangley has an excellent
reputation in the Philadelphia legal community as a litigator and an accomplished advocate, Defendants contend that Hangley’s regular rate of $500 per hour is unreasonable in this situation. In Maldonado, the Third Circuit observed that an attorney’s normal hourly fee is a “starting point” in evaluating what is reasonable in a given case. Maldonado, 256 F.3d at 184-85. In Daggett v. Kimmelman, 811 F.2d 793 (3d Cir. 1987), the Third Circuit affirmed the district court’s reduction of an attorney’s hourly fee and concluded that the district court’s decision was a “matter of judicial discretion.” Id. at 800. In reaching that conclusion, the Court drew a distinction between the rates that private clients are willing to pay and the appropriate amount that one can charge his or her adversary:
While it may be appropriate for a lawyer of Mr. Hellring’s standing at the bar . . . to charge his private clients $300.00 or more per hour, there nevertheless comes a point where a lawyer’s historic rate, which private clients are willing to pay, cannot be imposed on his or her adversaries. . . . [Section] 1988 use[s] the words “reasonable” fees, not “liberal” fees. Such fees are different from the prices charged to well-to-do clients by the most noted lawyers and renowned firms in a region. . . . If we were confronted with a case where a litigator of national repute charged $1,000 per hour in the legal marketplace and nevertheless had innumerable clients waiting at his or her door to pay such rates, that extraordinary level of remuneration could not be legally imposed as a matter of course on an adversary in a prevailing party’s counsel fee case.
Daggett, 811 F.2d at 799-800 (internal citations omitted); see also Del. Valley Citizens’ Council for Clean Air, 478 U.S. at 565 (fee shifting “statutes were not . . . intended to replicate exactly
7

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 8 of 37
the fee an attorney could earn through a private fee arrangement with his client”). We have no doubt, considering Hangley’s stature in the legal community, that he can command—and private clients will pay—$500 per hour for his services. However, this is not a private client. The Hangley firm agreed to assist TLPJ, a public interest law firm, in this public interest litigation. The Hangley firm admittedly considered it a pro bono contribution by the firm. Although they are entitled to be compensated for their services, we are satisfied that an adjustment in Hangley’s hourly rate is appropriate under the circumstances.
Defendants propose the Community Legal Services (“CLS”) schedule as an alternative to Hangley’s usual hourly rate. We note that in reducing an attorney’s normal rate, the Third Circuit and several courts in this District, have turned to the CLS schedule for guidance. Maldonado, 256 F.3d at 187; Sheffer v. Experian Info. Solutions Inc., 290 F. Supp. 2d 538, 54344 (E.D. Pa. 2003); Reynolds v. USX Corp., 170 F. Supp. 2d 530, 532-33 (E.D. Pa. 2001); Skaggs v. Hartford Fin. Group, No. Civ. A. 99-3306, 2001 WL 1665334, at *20 (E.D. Pa. Sept. 28, 2001). Under the CLS schedule, attorneys with more than twenty-five years of experience are compensated at between $310 and $400 per hour. In light of Hangley’s stature in the Philadelphia legal community, we will set his hourly compensation at $400, the highest rate on the CLS schedule.
Defendants also object to the hourly rates of the Hangley firm’s paralegals, Gisela Miller and Barbara Giordano, which are $125 and $140, respectively. Plaintiffs state that these rates fall within the Hangley firm’s rates for paralegals, and provide the declaration of Barbara Mather, which indicates that these rates “are well within the reasonable range charged by law firms for similar work.” (Doc. No. 32 at Ex. 6 ¶ 12.) Again, while we do not question whether the
8

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 9 of 37
Hangley firm’s private clients would pay these rates for Miller and Giordano’s services, we cannot agree that they are reasonable rates to charge in this instance. Instead, we will apply the CLS schedule for Miller and Giordano’s services. According to Plaintiffs, Miller was relatively inexperienced and Giordano had “substantial litigation experience” when they worked on this case. (Doc. No. 32 at 26.) We will set Miller’s rate at $90 per hour (the highest rate in the Paralegals I and II category) and Giordano’s rate at $120 per hour (the highest rate in the Senior and Supervisory Paralegals category).
We note also that Defendants do not contest the rates requested by Sharon McKee and Shawn Weede, both attorneys at the Hangley firm. We will set their rates at $235 per hour and $150 per hour respectively.7
2. Hourly Rate for TLPJ Defendants’ primary objection with regard to the hourly rates for TLPJ attorneys involves TLPJ’s use of the Laffey matrix,8 as opposed to the CLS schedule.9 Under the Laffey schedule, which is used in Washington, D.C., where TLPJ is located, Plaintiffs submit that the TLPJ hourly rates would be as follows: Bryant at $380; Brueckner at $335; Epstein at $220; and Kimmel at $335. Defendants contend that the TLPJ attorneys should be paid at the forum rate rather than
7 While Defendants do not challenge Weede’s hourly rate, they do challenge the inclusion of Weede’s time in the lodestar calculation.
8 The Laffey matrix was developed in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), overruled on other grounds, 746 F.2d 4 (D.C. Cir. 1984). The matrix is updated annually by the United States Attorney’s Office for the District of Columbia. (Doc. No. 32 at Ex. 2 ¶ 44; id. at Ex. 2B.)
9 It is undisputed that the TLPJ attorneys do not have regular billing rates. 9

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 10 of 37
their home rate. While the Third Circuit has not articulated a bright line rule for determining the relevant market, we find the analysis in Windall to be instructive. In Windall, the court discussed the findings of a court-appointed task force, which recommended the adoption of a forum rate rule. In reaching this conclusion, the task force observed that the home rule could complicate matters for courts and could create problems in “selecting hourly rates for visiting lawyers from other parts of the country litigating in [this] forum.” Windall, 51 F.3d at 1186. The task force “concluded that the best rule is the ‘forum rate’ rule” and recommended deviation “only when the need for ‘special expertise of counsel from a distant district’ is shown or when local counsel are unwilling to handle the case.” Id. (quoting Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 260-62 (1986)).
While courts have applied the home rate of attorneys when special expertise or inability to find local counsel has been demonstrated, we are not persuaded that there is a need to do so here. Cf. Church of the Am. Knights of the Ku Klux Klan v. City of Erie, No. Civ. A. 98-337, 2000 WL 33201872, at *6-7 (W.D. Pa. Nov. 24, 1998); Charles Q. v. Houstoun, No.1: CV-95280, 1997 WL 827546, at *3 (M.D. Pa. Sept. 30, 1997). It is clear that TLPJ is among the most experienced public interest organizations in dealing with Title IX litigation. However, we are not convinced that the Hangley firm and/or other members of the Philadelphia legal community would have been unwilling or unable to handle this case without TLPJ’s expertise. See Playboy Enters., Inc. v. Universal Tel-A-Talk, Inc., No. Civ. A. 96-6961, 1999 WL 712580, at *3 (E.D. Pa. Sept. 10, 1999) (applying forum rate where there has been no showing of special skill or expertise and no showing that Philadelphia attorneys are unwilling or unable to represent Playboy). This case was litigated in Philadelphia and involved Philadelphia-area defendants.
10

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 11 of 37
Defendants were represented by the Office of the Attorney General of Pennsylvania. There is nothing, other than TLPJ’s location, that would tie this case to the Washington, D.C. market.
In support of their claim that the TLPJ attorneys offered expertise that justifies applying the Washington, D.C. rates, Plaintiffs cite the district court decision in Cohen v. Brown University, Civ. A. No. 92-197, 2001 U.S. Dist. LEXIS 22438, at *134 (D.R.I. Aug. 10, 2001). In Cohen, the district court found that Bryant and Brueckner’s expertise was of the sort that could not be found in the Providence, Rhode Island legal community in 1991 when Title IX litigation was a relatively new phenomenon. As stated above, the TLPJ attorneys are leaders in the field of Title IX litigation, and we do not doubt that TLPJ played a significant role in representing Plaintiffs. However, unlike the plaintiffs in the Cohen case, Plaintiffs here were able to retain very competent local counsel with experience in litigating Title IX cases. (Hangley Aff., Doc. No. 32 at Ex. 4 ¶ 2.) Plaintiffs have not demonstrated a need to import special expertise nor have they shown an inability to find local counsel with the required experience. Accordingly, we conclude that the forum rate, as established in the CLS schedule, should govern TLPJ’s hourly rates.
Under Philadelphia’s CLS schedule, Bryant, who has more than twenty years of experience, would be compensated between $270 and $310 per hour. Defendants acknowledge that Bryant is at the top of the range and should receive $310 per hour. Brueckner (sixteen years experience) and Kimmel (nineteen years experience) fall in the $250-$270 range. Defendants submit that Brueckner should be compensated at $260 and Kimmel at $270. Defendants do not object to the requested hourly rate of $220 for Epstein, who has between six and ten years of experience (Doc. No. 32 at 29), which correlates to $200-$250 on the CLS schedule. We will
11

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 12 of 37

therefore approve of the requested rates. These figures are a fair and accurate application of the CLS schedule. Thus, with respect to the hourly rates of the members of Plaintiffs’ legal team, we will apply the following rates:

Hangley: McKee: Weede: Miller: Giordano: Bryant: Brueckner: Kimmel: Epstein:

$400 $235 $150 $90 $120 $310 $260 $270 $220

3. Hours Expended

When reviewing the number of hours spent by each member of Plaintiffs’ legal team, we examine the requested fees for redundancy and excessiveness. Hensley, 461 U.S. at 434. The Supreme Court points out that “cases may be overstaffed . . . . Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Id. Plaintiffs seek attorney’s fees for seven attorneys and two paralegals, who spent a combined total of 694.45 hours on this case. We will examine these hours in five time-frames: (1) the period encompassing the beginning of the case through the July 25, 2003 demand letter, (2) the period during which the Complaint and Motion for Preliminary Injunction were filed, (3) the period of preparation for the hearing on the Preliminary Injunction Motion, (4) the hearing itself, and (5) the period after the hearing.

Hours Through the July 25, 2003 Demand Letter

12

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 13 of 37
Defendants seek to exclude all hours claimed in June 2003 because Plaintiffs did not officially retain counsel until the end of June or beginning of July. Barrett, 2003 WL 22803477, at *1 n.4. We recognize, however, that “[i]nterviews, correspondence, and meetings with a potential plaintiff may yield factual information which will be utilized in pursuing the litigation so that the time billed for those activities can be considered time expended on the litigation.” ACLU of Ga. v. Barnes, 168 F.3d 423, 436 (11th Cir. 1999); see also Schlimgen v. City of Rapid City, 83 F. Supp. 2d 1061, 1071 (D.S.D. 2000) (“Attorney’s fees may be granted for investigative work that was used for and, in fact, gave rise to the pending [civil rights] action.” (citing McDonald v. Armontrout, 860 F.2d 1456, 1461-62 (8th Cir. 1988))). We find it perfectly reasonable that TLPJ and the Hangley firm would preliminarily gather facts and research before agreeing to represent Plaintiffs and that they would use this information during the course of the litigation. Therefore, we will not eliminate these hours across the board, but will look at the individual entries for redundancy and excessive hours.
Defendants contend that all of Bryant’s time in June should be excluded because it was before TLPJ took the case. However, as mentioned above, time spent on a potential plaintiff may be included in a fee award. Bryant’s 0.9 hours in June were reasonable and properly billed to Defendants.
In addition to Bryant, Rebecca Epstein of TLPJ also spent significant time on this matter in June and July. Defendants contend that 2.49 hours of Epstein’s time was spent on administrative matters relating to the relationship between TLPJ and the plaintiffs and that this time should not be charged to Defendants. We agree that WCU should not have to pay for Epstein’s time spent on formalizing the attorney-client relationship and the relationship between
13

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 14 of 37
TLPJ and the Hangley firm attorneys. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004) (“The [Defendant] should not have to pay for administrative matters relating to the formal relationship between [Plaintiff] and its attorneys.”). We calculate that Epstein spent 2.32 hours during this phase working on the retainer agreement.10 Accordingly, we will deduct these hours from the lodestar figure. Contrary to Defendants contention, however, we find that Epstein’s 3.09 hours spent on preparing the demand letter was not excessive and was a reasonable expenditure of time for the task, as was McKee’s 0.6 hours spent speaking with Epstein and reviewing the draft demand letter. We will not exclude that time.
With regard to William Hangley, he spent 1.6 hours on this matter in July. Defendants contend that his entry for one hour on July 8, 2003, which simply states, “Rebecca Epstein,” should be excluded for vagueness. We agree and will strike that hour for failure to provide more precise information as to how the time was spent. See Washington v. Phila. County Ct. Com. Pl., 89 F.3d 1031, 1038 (3d Cir. 1996) (an attorney’s submissions should “provide[] enough information as to what hours were devoted to various activities and by whom for the district court to determine if the claimed fees are reasonable”).
a. July 26 – September 4, 2003 (Filing Complaint and Motion)
During this period of the litigation, Plaintiffs conducted factual and legal research, unsuccessfully attempted to negotiate a settlement agreement with Defendants, and prepared the Complaint and Motion for Preliminary Injunction. Plaintiffs seek fees for a total of 197.59 hours
10 Epstein spent time on the retainer agreement on 6/25, 7/15, 7/16, 7/17, 7/21, 7/22, and 7/28. (Doc. No. 32 at Ex. A.) See infra Part III.A.3.b. for additional discussion of time spent on the retainer agreement by Brueckner and Epstein.
14

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 15 of 37
for five attorneys and two paralegals during this phase of the litigation. Defendants claim that this number is “grossly unreasonable.” (Doc. No. 35 at 24.) Plaintiffs submit that the fifteenpage Complaint took McKee 11.0 hours to draft on August 10th and August 29th.11 (Doc. No. 32 at Ex. A.) However, in comparing Plaintiffs’ Complaint with the one filed in Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1992), we note that the two documents are strikingly similar, with entire passages that are almost exactly the same. (Doc. No. 35 at Ex. D.) We also note that Plaintiffs’ Complaint dedicates two full pages to “Class Action Allegations.” Class certification was never pursued. Under the circumstances, we conclude that McKee’s time for drafting the Complaint should be reduced from 11.0 hours to 8.0 hours.
Defendants also assert that the number of hours spent on drafting and revising the Motion for Preliminary Injunction was unreasonable. In total, between August 11, 2003 and September 4, 2003, McKee spent 69.6 hours preparing the Motion for Preliminary Injunction.12 Defendants contend that this is unreasonable. However, the hours are supported by the time sheets and explanatory notes, and we cannot conclude that it would be unreasonable for an attorney to devote this kind of time to a thirty-page motion that included 161 pages of exhibits.
However, we will review specific entries for excessiveness, vagueness, and redundancy. First, on September 1, 2003, McKee spent 4.8 hours revising the declaration of expert witness Christine Grant. We note that much of Grant’s declaration is word-for-word the same as her declaration in the Favia case. In fact, the first six and one-half pages of the eleven-page
11 Research was listed as separate entries on Plaintiffs’ counsel’s time sheets. 12 McKee actually spent 70.6, but as discussed infra, we will strike the 1.0 hour entry for Cecile Allen’s declaration.
15

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 16 of 37
declaration is almost exactly the same. The remaining pages follow the same model as used in the Favia case, and simply insert facts specific to the instant case. In light of this, we will reduce the time by 2.0 hours.
In addition, we review a number of Hangley’s entries, which Defendants contend should be excluded for vagueness. Hangley submitted two time entries for September 4, 2003. The first, for 1.8 hours, states: “Review materials, declarations as filed.” The entry does not provide enough information for the Court to make a full evaluation of the time, but it seems to pertain to a review of the motion, after it was filed. We cannot agree that it was necessary or reasonable for Hangley to spend this time reviewing the documents after they were filed. We will exclude this entry. See Role Models Am., 353 F.3d at 973 (excluding time spent reviewing summary of argument by Plaintiff’s lead attorney after oral argument). The second entry, for 2.0 hours, states: “Various re filed suit.” We find this entry to be vague and conclude that it does not adequately support the request of the corresponding fee. We will strike this entry (2.0 hours). Accordingly, we deduct 3.8 hours from Hangley’s time during this period.
Defendants also object to the time spent by counsel on Cecile Allen’s declaration. Our decision of November 12, 2003 concluded that because Allen had transferred to Pennsylvania State University, she lacked standing as a Plaintiff to this lawsuit. We will deduct the hour spent by McKee on Allen’s declaration. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1985) (courts can reduce the hours claimed by the number of hours “spent litigating claims on which the party did not succeed and that were ‘distinct in all respects from’ claims on which the party did succeed” (quoting Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897, 919 (3d Cir. 1985))).
16

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 17 of 37
In addition, Defendants also object to the time spent by Brueckner and Epstein on the retainer agreement during this time frame. As previously discussed, we will not permit time associated with drafting retainer agreements. Plaintiffs contend that such time is compensable, and cite to Bailey v. District of Columbia, 839 F. Supp. 888, 891 (D.D.C. 1993). However, we conclude that this activity does not constitute time “reasonably expended on the litigation.” Webb v. Bd. of Educ. of Dyer County, Tenn., 471 U.S. 234, 242 (1985) (quoting Hensley, 461 U.S. at 433); see also Role Models Am., 353 F.3d at 973 (excluding time spent on drafting and revising the firm’s the engagement letter with Role Models). Accordingly, we will deduct the 0.60 hours for retainer work submitted by Brueckner on August 25 and August 26, 2003, and the 0.17 hours submitted by Epstein for filing the completed retainers on July 28, 2003.
b. Hearing Preparation (September 5 – September 28, 2003) During this phase of the litigation, Plaintiffs spent a total of 206.50 hours preparing for the preliminary injunction hearing. Defendants contend that this amount of time is unreasonably excessive, as compared to the hearing itself, which lasted approximately twenty-four hours over the course of four days. Defendants contend that a two-thirds reduction in the number of hours is appropriate. The Third Circuit has found that the court “may reduce the number of hours prong of the lodestar only ‘if the adverse party has . . . raised a material fact issue as to the accuracy of representations as to hours spent, or the necessity for their expenditure.’” Rainey v. Phila. Hous. Auth., 832 F. Supp. 127, 129 (E.D. Pa. 1993) (quoting Bell v. United Princeton Props., 884 F.2d 713, 719 (3d Cir. 1989)). The Court has wide discretion to reduce fees in light of objections. Id. Rainey points out that, “the higher the allowed hourly rate commanded based on skill and experience, the shorter the time it should require an attorney to perform a particular task.” Id. In
17

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 18 of 37
the instant case, McKee devoted at least 100 hours to preparations for the hearing. At least 90 of those hours were delineated for general “preparation for hearing” or “revising outlines.” The Hangley firm is a highly skilled, experienced law firm and, at the time of the hearing, McKee was a seventh-year associate with the firm. (McKee Decl., Doc. No. 32. at Ex. 5 ¶ 4.) We agree that the amount of time spent by McKee on general preparation for the hearing is unreasonable. We will reduce the number of general preparation hours by 25%, deducting 22.5 hours from McKee’s time.
In addition to McKee’s hours, Defendants also object to the time spent by Gisela Miller, one of the Hangley paralegals, on the preparations for the preliminary injunction hearing, the depositions, and the witness preparation. During this time frame, Miller spent at least 4.9 hours on purely administrative calls, letters, and faxes. She consistently spent 18 minutes or more on calls to the clerk of court or to the court reporting service to schedule depositions. We find these time submissions to be excessive for the listed tasks and will therefore deduct 2.5 hours from Miller’s overall time spent in this phase of the litigation.
We also note that during the hearing-preparation phase, Plaintiffs’ counsel devoted time to preparing Cecile Allen for the hearing. As discussed above, Allen was never called as a witness. Accordingly, we will deduct this time from Plaintiffs’ request—specifically, 1.6 hours spent by McKee preparing Cecile Allen for the hearing.
Defendants also claim that time spent by McKee (0.10) and Miller (1.10) on September 10th and September 12th concerning Brueckner’s application for admission pro hac vice is not compensable. Defendants cite to Sheffer, 290 F. Supp. 2d at 552, which states that pro hac vice
18

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 19 of 37
fees are not recoverable under § 1920. However, we assess fees in this case under § 1988 and not § 1920. Under § 1988, a court may award costs that are appropriately billed to Plaintiff’s client. Hensley, 461 U.S. at 434. In P.R. Hall v. Lowder Realty Co., Inc., 263 F. Supp. 2d 1352, 1369-70 (M.D. Ala. 2003), the court concluded that pro hac vice fees are recoverable under § 1988 when the fees are of the kind that would normally be charged to a fee-paying client. As will be discussed below, we conclude that pro hac vice fees are recoverable as costs and find that the hours spent on Plaintiffs’ application for admission pro hac vice should likewise be covered in the fees application.
c. The Hearing (September 29 – October 6, 2003) During this phase of the litigation, Plaintiffs seek compensation for 131.9 hours spent at the four-day hearing on their motion for a preliminary injunction. (Doc. No. 32 at 44.) The hearing took place for half a day on September 29, 2003, for two full days on September 30 and October 1, and for half a day on October 6, 2003. (Doc. No. 35 at 31.) Defendants do not propose across-the-board reductions during this stage of the litigation, but do object to specific entries. (Doc. No. 35 at 35.) First, Defendants object to Miller’s phone calls to court personnel to obtain transcripts. Defendants contend that transcripts were unnecessary at this stage of the litigation. We disagree. We find that Plaintiffs’ measures to prepare for an anticipated appeal were reasonable. We approve the time spent on ordering transcripts after the hearing. Defendants also object to time entries by Hangley and McKee for the last day of the hearing, October 6, 2003. Defendants correctly point out that the hearing lasted approximately
19

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 20 of 37
3.5 hours on that day.13 Hangley’s entry lists 8.0 hours on that day for “Hearing and Closing Argument. Cleanup.” (Doc. No. 32 at Ex. 5A.) While Hangley’s time spent on the hearing and closing argument are reasonable, the term “cleanup” is not specific enough to permit us to determine whether the hours were reasonably spent. We therefore deduct 4.4 hours from Hangley’s claims for that day. Because McKee lists 4.3 hours for “Preliminary Injunction Hearing” on that day, we deduct 0.7 hours from her claim. (Id.)
Defendants also protest Brueckner’s 20.5 hours for attendance at the hearing on September 29th, September 30th, and October 1st.14 Defendants argue that this time was wholly unnecessary because Plaintiffs were already represented by a senior partner and a seventh-year associate throughout the hearing. (Doc. No. 35 at 37.) Plaintiffs argue that Brueckner’s participation at the hearing was appropriate because she brought special Title IX expertise to the team. In Lanni v. New Jersey, 259 F.3d 146, 151 (3d. Cir. 2001), the Court approved the finding that the presence of two named partners at trial was excessive and disallowed the claimed hours of the second partner. Id. The Court explained that “trial courts should not accept passively the submission of counsel to support the lodestar amount. . . . For example, where three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time.” Id. (quoting Rendine v. Pantzer, 661 A.2d 1202, 1226 (N.J. 1995)); see also Apple Corps. v. Int’l Collectors Soc’y, 25 F. Supp. 2d 480, 489 (D.N.J. 1998) (“In certain cases, the attendance of additional counsel representing the same interests as the attorney actually participating in a
13 The hearing on October 6, 2003 began at 9:00 a.m. and ended at 12:35 p.m. (3.6 hours). 14 Defendants do not object to Brueckner’s 0.5 hours spent arguing before the Court on October 1, 2003 but contest all of the rest of her time spent in attendance at the hearing.
20

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 21 of 37
hearing is wasteful and should not be included in a request for counsel fees from an adversary.” (internal quotation omitted)). While Defendants argue that Brueckner’s Title IX expertise surpasses that of Hangley or McKee, Plaintiffs could have chosen another combination of attorneys to be present at the hearing at all times. Ms. Brueukner testified and presented her Oral Arguments on October 1, 2003. We find that it was reasonable for her to be present for the full day of the hearing (8.5 hours) because she did not know when she would be called upon to present. However, we find that the remainder of the 20 hours is not reasonable. Accordingly, we deduct 12.0 hours from Brueckner’s time, finding her presence on the first two days to be duplicative.
In addition to the time spent at the preliminary injunction hearing, this phase of the litigation also includes time spent on Plaintiffs’ reply and sur-reply briefs in opposition to Defendants’ Motion to Dismiss. Defendants object to the amount of time Brueckner spent responding to Defendants’ Motion to Dismiss. Plaintiffs respond that the reply and sur-reply briefs involved a novel issue of Title IX law, because Defendants moved to dismiss the action on the basis of Alexander v. Sandoval, 532 U.S. 275 (2002), arguing that there was no private right of action for disparate impact claims under Title IX. This motion was of critical importance to Plaintiffs. Had we accepted Defendants’ argument, it would have negated Plaintiffs’ claim and set a precedent with which future Title IX plaintiffs would have had to contend. In addition, the second factor in the Hensley twelve-factor test is the “novelty and difficulty of the questions.” Hensley, 461 U.S. at 430. We agree with Plaintiffs that the Sandoval issue presented novel issues of Title IX law that justified significant time. Therefore, we approve the time spent by Brueckner on this issue.
21

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 22 of 37
In addition to Brueckner’s time spent on the Motion to Dismiss, Defendants also object to McKee’s 6.3 hours spent reading, reviewing, and revising Plaintiffs’ sur-reply brief. Defendants argue that “in view of the large of amounts of time Ms. Brueckner seeks to be paid for completing this brief, and in view of the fact that Mr. Hangley’s time for 10/3 was partly devoted to editing the brief” these hours were duplicative. (Doc. No. 35 at 36.) We agree. Accordingly, we deduct McKee’s 6.3 hours spent working on this brief.
d. Post-hearing (October 7 – December 31, 2003)15 The post-hearing phase of the litigation consisted of time spent by Plaintiffs monitoring Defendants’ compliance with the preliminary injunction and preparing for Defendants’ eventual appeal. In addition, this phase also included time spent preparing for and attending settlement conferences. Plaintiffs do not seek fees for any time spent after the new year, nor do they seek fees for time spent on the fee application itself, which also occupied their time during this phase. Defendants, however, contend that “almost none” of the 73 hours Plaintiffs request during this period should be included in Plaintiffs’ lodestar figure. (Doc. No. 35 at 39.) Defendants object to numerous time entries by Miller. First, Defendants argue that Miller’s time spent securing transcripts was not necessary. We have already determined that this is a reasonable expense because Plaintiffs needed the transcripts for use on appeal. As such, we approve the time spent by Miller on this task. Defendants also contend that Miller’s time (0.3 hours on October 8th) spent to obtain the court’s docket was unreasonable because Plaintiffs could have obtained a copy of the docket from PACER in several minutes. We agree and deduct
15 Plaintiffs do not seek reimbursement for time spent in 2004. 22

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 23 of 37
0.3 hours from Miller’s time. Finally, Defendants point to Miller’s entry on November 11th and argue that the notation “telephone call” is too vague. We agree and strike the 0.3 hours of Miller’s time.
In addition, Defendants contend that none of Weede’s time (6.4 hours) was reasonable or necessary because the work was in anticipation of an appeal. (Doc. No. 35 at 40.) We note that Plaintiffs have considerably reduced the number of Weede’s hours for which they seek payment because many of those hours were spent on the fee petition. However, some of those hours also involve research on a potential appeal and were nevertheless deducted. Plaintiffs argue that the research on appeals that was not deducted was necessary and reasonable because Defendants did, in fact, file a notice of appeal of the Court’s November 12, 2003 decision. (McKee Decl., Doc. No. 32 at Ex. 5 ¶ 46.) Attorneys cannot always predict precisely how litigation will unfold. See Graham v. Johnson, No. Civ. A. 02-7794, 2003 WL 22352729, *2 (E.D. Pa. Oct. 15, 2003) (“[T]his Court does not require counsel to sit on his hands waiting for a ruling when he should be actively preparing his case.”). We conclude that time spent preparing for a potential appeal is reasonable and recoverable from Defendants. We find Weede’s 6.4 hours to be reasonable.
Defendants’ primary objection during this phase is to the time Hangley and McKee devoted to the case after the hearing. Defendants claim that as of the November 26, 2003 followup status conference with the Court, Defendants had “made clear their desire to settle” (Doc. No. 35 at 41) and argue that only time that facilitated this result should be charged to Defendants. Plaintiffs argue that the “fact that it took six months for the parties to reach agreement demonstrates on its face that settlement was not a done deal when Defendants indicated interest on November 26, 2003.” (Doc. No. 38 at 17.) While we will scrutinize Plaintiffs’ hours during
23

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 24 of 37
this phase in accordance with Defendants’ objections, we consider time spent to facilitate a settlement agreement to be recoverable.
With this in mind, we will deduct a number of hours from Hangley’s time because of vague descriptions which prevent the Court from determining the nature of the activity and its reasonableness. We deduct 1.0 hour of Hangley’s time on October 13th because the entry “Update” is indeterminate; 1.0 hour of Hangley’s requested 4.0 hours on November 12th because the task “Make various arrangements” is vague; 1.0 hour from Hangley’s time on November 21st (“Various details and emails.”); and 1.5 hours of Hangley’s time on November 24th because Plaintiffs have agreed to forego fees on the fee petition and this entry deals specifically with the fee petition.
Defendants object to time spent by McKee and Hangley on preparation for settlement conferences and on status and phone conferences with the Court. Defendants argue that McKee’s 8.0 hours spent preparing Plaintiffs’ settlement conference memorandum on December 18th and 19th is an excessive amount of time. We disagree and find this time to be reasonable considering the importance of this document in reaching an acceptable settlement and considering the detailed nature of the end product. In addition, Defendants object to the presence of both Hangley and McKee for the November 20th status conference and the November 26th and December 5th follow-up telephone conferences, arguing that Hangley’s time is duplicative.16 We agree that Hangley’s time on those dates was unnecessary and duplicative and will therefore
16 Defendants agree that the presence of Hangley and McKee at the settlement conference on December 23rd was not duplicative because of the complexity of discussions at that meeting. (Doc. No. 35 at 42.)
24

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 25 of 37

strike 0.6 hours from Hangley’s time to account for this. See Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 362 (3d Cir. 2001) (remanding to District Court to determine whether the hours set out could have reasonably been completed by one attorney).17
e. Fee Calculation Table The following table provides the Court’s calculation of the lodestar figure, including each attorney’s and paralegal’s reasonable hourly rate, the number of hours deducted by the Court, the resulting number of hours per person, and the total amount recoverable by each member of Plaintiffs’ team.

Attorney/ Paralegal Hangley
McKee Weede Giordano Miller Bryant Brueckner Kimmel Epstein

Hourly Rate $ 400 $ 235 $ 150 $ 120 $ 90 $ 310 $ 260 $ 270 $ 220

Hours Deducted by the Court 14.3 37.1 0 0 3.1 0 12.6 0 2.49

Resulting Hours
129.3 297.3 6.4 9.3 46.3 3.6 109.3 7.8 15.56

Lodestar
$ 51,720.00 $ 69,865.50 $ 960.00 $ 1,116.00 $ 4,167.00 $1,116.00 $28,418.00 $ 2,106.00 $ 3,423.20

17 Plaintiffs contend that it was more effective to have both Hangley and McKee present for those conferences than to have one attorney attend and then spend extra time updating the other. However, we conclude that given Hangley’s high hourly rate, the more cost-effective approach would be for McKee to attend the conferences and then quickly summarize and update them for Hangley. We conclude that their dual presence was duplicative and unnecessary.
25

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 26 of 37
Total Fees for Hangley firm: $ 127,828.50 Total Fees for TLPJ: $ 35,063.20 Total Overall Fees: $ 162,891.70
B. Costs and Expenses Plaintiffs seek a total of $12,477.82 in costs and expenses. Many of Defendants’ original objections to these costs were remedied when the Hangley firm withdrew several requests in Plaintiffs’ Reply Memorandum.18 We will address only those objections that remain. First, Defendants claim that TLPJ’s expenses should be disallowed because they are only generally supported by Bryant’s declaration and because “[t]here is no supporting documentation whatsoever.” (Doc. No. 35 at 56). It is well established that under § 1988 a prevailing party may recover reasonable costs and expenses that would normally be charged to fee-paying clients. Hensley, 461 U.S. at 429 (1983). However, such requests must be properly documented. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 181 (3d Cir. 2001). In the instant case, TLPJ lists their expenses in their original Motion. Specifically, TLPJ seeks $471.18 for duplicating and telephone expenses, $205.71 for computer research, $62.67 for messenger and delivery services, and $897.98 for travel expenses. In response to Defendants’ objections, Plaintiffs’ Reply Brief includes TLPJ’s list of expenses with amounts and dates specified along with invoices, receipts, and affidavits in support thereof. (Doc. No. 38 at Ex. 1.) Because Defendants object to all of TLPJ’s costs, we will review them individually.
18 In total, Plaintiffs withdrew $2,707.54 in costs. 26

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 27 of 37
It is clear that TLPJ’s costs for delivery, phone calls, duplicating, and research fees are reasonable given the facts of this case. TLPJ’s telephone and duplicating costs are one of the few expenses not well-documented. However, these costs, which consist of $67.18 for telephone charges, $382.00 for duplication, and $22.00 for facsimiles, are reasonable in light of the extent of involvement that TLPJ has had with this lawsuit. In support of its Federal Express charges totaling $62.67, TLPJ provides invoices documenting the three mailings.19 While Defendants question the use of overnight delivery, we note that two of the packages were sent in the weeks leading up to Plaintiffs’ decision to file its Motion for a Preliminary Injunction, and the third was sent less than two weeks before the hearing began. We conclude that the Federal Express charges are reasonable given that Plaintiffs were attempting to resolve the matter quickly so the team could be reinstated before January. TLPJ’s Westlaw charges are also well-documented and corroborated by invoices. Accordingly, we will permit these charges as reasonable.
TLPJ’s travel expenses relate to Brueckner’s trips from Washington, D.C. to Philadelphia. Brueckner made her first trip on August 27, 2003, when she and McKee met with WCU representatives. Defendants do not dispute that Brueckner’s presence at that meeting was necessary. We find the costs associated with this trip, including travel, gas, and food, to be reasonable expenses and adequately documented by corresponding receipts.20
19 Plaintiffs explain that the Federal Express packages contained Title IX resources for McKee.
20 Defendants object to the fact that Brueckner purchased an Amtrak business-class ticket, for $108 one-way, as opposed to a coach ticket. Brueckner then traveled back to Washington with a friend, saving the cost of a return ticket. We find this cost to be reasonable. Defendants also object to Brueckner’s request for gas reimbursement for $13.32 because the receipt is dated August 26, 2003, the day before the trip. However, it is reasonable to fill one’s gas tank the day before a trip. Defendant’s also object to Brueckner’s food-related expenses during this trip. We
27

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 28 of 37
TLPJ’s second travel-related costs relate to Brueckner’s attendance at the hearing before this Court, which took place from September 29 to October 1, 2003.21 TLPJ requests reimbursement for Brueckner’s four nights in a Philadelphia hotel (September 28th to October 1st). Defendants object to these costs, claiming that Brueckner’s presence at the hearing was unnecessary. As previously discussed, we determined that Brueckner’s presence was duplicative on the first two days of the hearing, but obviously necessary on the day in which she argued before the Court regarding Defendants’ Motion to Dismiss, October 1, 2003.22 Accordingly, we will permit Brueckner’s hotel and related expenses for her participation on October 1, 2003 only.23 After a thorough analysis of TLPJ’s affidavits, invoices, and expense summary, we conclude that TLPJ has reasonably and adequately supported a request for costs in the amount of $1,094.37.
With regard to the costs submitted by the Hangley firm, Defendants primarily object to Plaintiffs’ duplicating costs, suggesting that they are inflated. Specifically, Defendants contend that over 5,000 pages of photocopying (at $0.20 per page, for a total of more than $1,000) is
conclude that Brueckner’s request for $21.10, for meals during her trip on August 27, 2003, is reasonable and adequately documented by corresponding receipts. Becker v. ARCO Chem. Co., 15 F. Supp. 2d 621, 637 (E.D. Pa. 1998) (“In order for counsel to receive reimbursement for the cost of meals, the expense must be adequately documented and reasonable.”).
21 The hearing concluded on October 6, 2003, but Brueckner was not in attendance. 22 See supra Part III.A.3.d. 23 According to the invoice that TLPJ has submitted, those costs, which total $214.49, include the following: guest room, $139.00; state tax, $9.73; city tax, $9.73; overnight parking charge, $22.00; and dinner on September 29, 2003, $34.03.
28

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 29 of 37
excessive.24 The Hangley firm initially requested $1,261.71 in duplicating and telephone expenses, but subsequently withdrew $116.00 in velobinding costs and $40.50 in outside duplicating costs, bringing the total duplicating and telephone charges to $1,105.21. Of that amount, Plaintiffs contend that $21.01 was spent in long distance telephone charges, and $1,084.20 in duplicating.
Plaintiffs explain that the Hangley firm made four copies of the pleadings and briefs, (filing, courtesy, Defendant, and time-stamp for file). Plaintiffs also made five copies of the trial exhibits (witness, the Court, defense counsel, McKee, and Hangley). Plaintiffs contend that these copies totaled 5,979 pages. (Doc. No. 38 at 22.) At $0.20 per page, the copying fees for these documents alone total $1,195.80. Plaintiffs seek $1,084.20. Based on the foregoing, we cannot agree with Defendants’ contention that the amount is excessive.
Plaintiffs also seek $617.65 in outside duplicating for expenses related to the videotape that was used during the course of the hearing. (Doc. No. 32 at 48.) Defendants object to this cost as unnecessary and contend that Plaintiffs have failed to explain this expense. We disagree. Plaintiffs state that the costs were for the editing and copying of the tape that accompanied the testimony of Plaintiff Stephanie Hermann. In addition, Plaintiffs provide the invoices for these services, which total $617.65. Accordingly, we will permit the charge.
Defendants object to Plaintiffs’ request for $3,216.31 in legal research costs, claiming that Plaintiffs failed to provide explanatory documentation. In response, Plaintiffs reduced this expense by $1,486.82, leaving a balance of $1,729.49. Plaintiffs provide supporting invoices for
24 Defendants also objected to outside duplicating costs, but the Plaintiffs subsequently withdrew that expense.
29

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 30 of 37
all of these charges. Accordingly, we conclude that this adjusted sum is reasonable and adequately supported.
Defendants also contend that Brueckner’s pro hac vice admission fee is not compensable. As discussed above, pro hac vice admission costs are recoverable under § 1988 when the fees are of the kind that would normally be charged to a fee-paying client. P.R. Hall, 263 F. Supp. 2d at 1369-70. Accordingly, we will allow Plaintiffs’ pro hac vice admission fee to be included in the cost calculation.
In addition, Defendants contest the $1,368.88 that was spent on trial transcripts, claiming that the transcripts were unnecessary in the instant litigation.25 Plaintiffs claim that they ordered the transcripts in anticipation of Defendants’ appeal. After we issued our decision on November 12, 2003, Defendants did in fact appeal. (Notice of Appeal, Doc. No. 24.) As was previously discussed, we are persuaded that the transcripts were a necessary expense, and we note that all of the transcript fees are properly supported by invoices.
Finally, Defendants object to Plaintiffs’ request of $2,000 for Christine Grant’s expert witness fees. Defendants object to this fee because they claim there is insufficient documentation and explanation provided for Grant’s $100 hourly rate and the 20 hours she devoted to the case. We agree that this fee is impermissible, but on other grounds. In West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), the Supreme Court concluded that the term “attorney’s fees” in § 1988 did not include fees for experts’ services. Id. at 97. The Court explained that “Congress could easily have shifted ‘attorney’s fees and expert witness fees,’ or
25 The total costs submitted for transcripts is $3,809.43. However, Defendants object only to the trial transcript expenses, not the deposition transcripts.
30

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 31 of 37
‘reasonable litigation expenses,’ as it did in contemporaneous statutes; it chose instead to enact more restrictive language, and we are bound that restriction.” Id. at 99. The Court concluded that “§ 1988 conveys no authority to shift expert fees. When experts appear at trial, they are of course eligible for the fee provided by § 1920 and § 1821.” Id. at 102.
In response to this decision, in 1991, Congress amended the Civil Rights Act, providing in 42 U.S.C. § 1988(c) that expert fees may be included as part of the attorney’s fee in actions brought under 42 U.S.C. §§ 1981 and 1981a. 42 U.S.C. § 1988(c). Congress made a similar change to Title VII of the Civil Rights Act of 1964 in 42 U.S.C. § 2000e-5(k) and incorporated the same remedy into the Americans with Disabilities Act. See BD v. DeBuono, 177 F. Supp. 2d 201, 206 (S.D.N.Y. 2001). However, Title IX did not benefit from such an amendment and thus lacks explicit authorization for an award of expert fees. As such, the holding in Casey, which was superseded in some statutes by Congress’s 1991 amendments, still applies to Title IX, making expert fees unavailable under that statute. See Gordon J. Beggs, Novel Expert Evidence in Federal Civil Rights Litigation, 45 Am. U. L. Rev. 1, 7 n.38 (1995) (“Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 . . . lack[s] explicit authorization for an award of expert fees, and such awards appear to be unavailable under [this] provision[] at present.” (citing Casey, 499 U.S. at 96-97)). Accordingly, we conclude that the $2,000 expert fee for Grant cannot be recovered from Defendants.
Despite this conclusion, Plaintiffs may recover standard witness fees for Grant under 28 U.S.C. § 1821. Section 1821 provides, “a witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such
31

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 32 of 37
attendance or at any time during such attendance.” 28 U.S.C. § 1821(b). Plaintiffs contend and we agree that Grant is entitled to fees for two days of attendance, totaling $80. (Doc. No. 32 at 49.)
After thorough analysis, we conclude that the total sum recoverable by Plaintiffs for their costs and expenses is $1,094.37 for TLPJ and $8,920.28 for the Hangley firm.
C. Defendants’ Contention That Plaintiffs Did Not Fully Prevail. Defendants argue that the Court should adjust the lodestar downward because Plaintiffs did not fully prevail on their claims. (Doc. No. 35 at 54.) Defendants acknowledge that Plaintiffs prevailed on their central claim: reinstating the WCU women’s gymnastics team. However, they point to Plaintiffs’ Complaint which sought additional relief for all present and future WCU female students and requested that the Court “prohibit Defendants from eliminating any West Chester University-funded intercollegiate athletic team unless, both before and after the elimination, male and female students are provided equal opportunities to participate in West Chester University-funded intercollegiate athletics.” (Doc. No. 1 at 14.) Defendants argue that because Plaintiffs never pursued class certification despite having initially filed this case as a class action, they did not fully prevail on all of their claims—in particular, the claim originally brought on behalf of all present and future WCU female students. It is not at all clear that class certification would have enabled Plaintiffs to succeed any more than they did. The reinstatement of the women’s gymnastics team benefitted all women students at WCU, not merely named Plaintiffs. Moreover, none of the time for which Plaintiffs seek payment was expended on class certification. In addition, the injunction granted by the
32

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 33 of 37
Court and made permanent by the settlement provides Plaintiffs with full funding as an intercollegiate team, a coaching staff and all of the facilities necessary to train and compete. In determining whether a party is a “prevailing party” under § 1988, “the proper focus is whether plaintiff has been successful on the central issue as exhibited by the fact that he has acquired the primary relief sought.” Taylor v. Sterrett, 640 F.2d 663, 669 (5th Cir. 1981). The Supreme Court in Hensley stated: “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. . . . In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.” Hensley, 461 U.S. at 435. In the instant case, Plaintiffs have clearly obtained “excellent results” and succeeded on the central issue: reinstatement of WCU women’s gymnastics team. Their victory was a complete victory. Accordingly, we will not reduce the lodestar based upon a failure to fully prevail.
D. Reduction of the Lodestar Having determined the lodestar, we now consider whether the overall sum is reasonable or whether downward adjustment is appropriate. In holding that WCU violated Title IX, we noted that WCU received warnings of this violation from its own internal committees and chose not to heed the warnings. This choice resulted in this very costly litigation. Nevertheless, it is appropriate to consider the financial circumstances of these defendants. WCU is a public university with limited funds. At the beginning of 2003, the university anticipated a five percent cut in state funding, which ultimately materialized as a budget cut totaling $256,019 in 2004 for the Division of Student Affairs. (Tr. Ex. Pl. 9.) The financial condition of the non-prevailing party in § 1988 cases is a factor that courts may consider when determining the amount of an
33

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 34 of 37
award for attorney’s fees. See Alizadeh, 910 F.2d at 238 (stating that while the non-prevailing party’s financial condition is not appropriate to consider in determining whether to award attorney’s fees, it is appropriate to consider when determining the amount of the attorney’s fees); Knighton v. Watkins, 616 F.2d 795, 799 (5th Cir. 1980) (explaining that defendant’s ability to pay may be a factor in determining attorney’s fees); Hughes v. Repko, 578 F.2d 483, 488 (3d Cir. 1978) (it is within district court’s discretion whether to consider defendant’s ability to pay attorney’s fees). It is a matter of public knowledge that WCU’s financial circumstances are even more difficult today than they were in 2004. The Pennsylvania Legislature has not been particularly understanding of the plight of its state universities. It is appropriate to consider WCU’s financial condition in determining what are reasonable attorney’s fees here.
In addition to considering WCU’s financial circumstances, we are also mindful that in this case, the award of attorney’s fees will not only affect the taxpayers of Pennsylvania, it will also have a direct impact on the students of WCU. While the Supreme Court, in Hutto v. Finney, 437 U.S. 678, 692-96 (1978), acknowledged Congress’s intent that “defendant state governmental bodies, rather than prevailing parties . . . bear the burden of civil rights litigation, even when budgets are small,” Knighton, 616 F.2d at 799-800, we cannot overlook “the fact that the public fisc must bear the financial burden.” Keyes, 439 F. Supp. at 415; see id. (in school desegregation case, court considers fact that “the very entity mandated to restructure its school system . . . will have to further expend public funds for attorneys who brought the restructuring to fruition”); see also Foley v. City of Lowell, Mass. 948 F.2d 10, 18 (1st Cir. 1991) (“At least where public funds are involved or the public interest is otherwise implicated, the court has a duty to consider the application critically to ensure overall fairness.”); Oliver v. Kalamazoo Bd.
34

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 35 of 37
of Educ., 73 F.R.D. 30, 48 (W.D. Mich. 1976), rev’d on other grounds, 576 F.2d 714 (6th Cir. 1978) (“[T]he court is aware that this fee award will draw upon public funds at a time when financial resources are especially dear. While this does not diminish petitioners’ right to recover just compensation, it is a factor which the court feels may properly be considered in determining what amount is reasonable.”). In fact, because WCU is a public university, we “have a special responsibility . . . to ensure that taxpayers are required to reimburse prevailing parties for only those fees and expenses actually needed to achieve the favorable result.” Role Models Am., 353 F.3d at 975.
Finally, fee awards under § 1988 were never intended to “produce windfalls to attorneys.” Riverside v. Rivera, 477 U.S. 561, 580 (1986) (quoting S. Rep. No. 94-1011 at 6 (1976)). A prevailing party in a civil rights action is entitled to only reasonable attorney’s fees. Hensley, 461 U.S. at 429. A party “is not entitled needlessly to accumulate exorbitant legal fees with the expectation that the losing party will be called upon to pick up the entire tab.” Planned Parenthood of Minn. v. Citizens for Cmty. Action, 558 F.2d 861, 871 (8th Cir. 1977). Courts must “exercise vigilance and pare down needless and unconscionably high legal fees.” Id.
Considering the fact that this is public interest litigation, that TLPJ and the Hangley firm became involved in this matter as a public service, that the attorney’s fees here will be paid by the taxpayers and will directly reduce the funds available to West Chester University to educate its students and that the university is already experiencing financial difficulty, we are satisfied that a reduction of the lodestar calculation by a figure of fifteen percent (15%) is fair, reasonable, and appropriate. Accordingly, we will award attorney’s fees and costs to TLPJ and the Hangley firm as follows.
35

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 36 of 37

Attorney’s Fees: Hangley firm: TLPJ:
Costs and Expenses: Hangley firm: TLPJ:
Total:

$108,654.22 $29,803.72
$8,920.28 $1,094.37 $148,472.59

An appropriate Order follows.

36

Case 2:03-cv-04978-RBS Document 44 Filed 03/31/06 Page 37 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH C. BARRETT, et al.,

:

:

:

v.

:

:

:

WEST CHESTER UNIVERSITY

:

OF PENNSYLVANIA OF THE

:

STATE SYSTEM OF HIGHER

:

EDUCATION, et al.

:

CIVIL ACTION NO. 03-CV-4978

ORDER

AND NOW, this _31st__ day of March, 2006, upon consideration of Plaintiffs’ Motion for Award of Attorney’s Fees and Costs (Doc. No. 32), it is ORDERED that Plaintiffs are awarded counsel fees and costs as follows:
Hangley, Aronchik, Segal & Pudlin fees: $108,654.22 Trial Lawyers for Public Justice, P.C. fees: $ 29,803.72

Hangley, Aronchik, Segal & Pudlin costs: $ 8,920.28 Trial Lawyers for Public Justice, P.C. costs: $ 1,094.37

IT IS SO ORDERED.

BY THE COURT:

S/ R. Barcaly Surrick U.S. District Court Judge

 
 636 F.Supp.2d 439
United States District Court,
E.D. Pennsylvania.
Elizabeth C. BARRETT, et al.,
v.
WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF the STATE SYSTEM OF HIGHER EDUCATION, et al.
Civil Action No. 03–4978.April 24, 2009.
Attorneys and Law Firms
Leslie A. Brueckner, Trial Lawyers for Public Justice PC, Washington, DC, Sharon F. McKee, William T. Hangley, Hangley, Aronchick, Segal and Pudlin, Phila, PA, for Elizabeth C. Barrett, et al.
Claudia M. Tesoro, Office of Attorney General, Philadelphia, PA, for West Chester University of Pennsylvania.
Opinion
MEMORANDUM
SURRICK, District Judge.
Presently before the Court is Plaintiffs' Motion for a Reconsideration and Amendment of Award of Attorney's Fees. (Doc. No. 45.) For the following reasons, Plaintiffs' Motion will be denied.
I. BACKGROUND
A. Underlying Litigation1
On April 28, 2003, West Chester University (“WCU”) announced its decision to eliminate its women's gymnastics and men's lacrosse programs. At the same time, WCU stated that it intended to add women's golf to its athletic program.
A concerned parent of one of the eight members of the women's gymnastics team contacted Trial Lawyers for Public Justice (“TLPJ”), a public interest law firm based in Washington, D.C., which ultimately took on the case. TLPJ contacted Hangley Aronchick Segal & Pudlin (“Hangley firm”) and engaged the firm as co-counsel in the matter. TLPJ has been involved in Title IX litigation since 1985 when Arthur Bryant, the Executive Director of TLPJ, served as lead counsel in Haffer v. Temple University, 688 F.2d 14 (3d Cir.1982). (Doc. No. 32, Ex. 2 (hereinafter, “Bryant Decl.”).) William Hangley, a founder and shareholder of the Hangley firm, is an experienced litigator with experience in Title IX litigation, having participated in the Haffer case. (Doc. No. 32, Ex. 4 (hereinafter, “Hangley Decl.”).)

As a public interest law firm, TLPJ does not charge its clients for services rendered but does seek attorney's fees pursuant to fee-shifting statutes. (Bryant Decl.) The Hangley firm, which does charge clients for its services, agreed to work on this case because of the “important social value in enforcing Title IX.” (Hangley Decl.) The firm “viewed the risk of loss and the certainty that any payment would be delayed as a pro bono contribution on the firm's part.” (Id.)
Plaintiffs' attempts to have the gymnastics team reinstated without court involvement failed, and on September 4, 2003, Plaintiffs filed a lawsuit along with a motion for a preliminary injunction. Plaintiffs claimed that Defendants' elimination of the women's gymnastics team violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq.
After the parties fully briefed the issues and following a hearing that spanned four days, we granted Plaintiffs' request for a preliminary injunction and ordered Defendants to immediately reinstate the women's gymnastics team. See generally Barrett v. W. Chester Univ. of Pa., No. 03–4978, 2003 U.S. Dist. LEXIS 21095, 2003 WL 22803477 (E.D.Pa. Nov. 12, 2003) (hereinafter, “Doc. No. 18”). Following our decision, the parties agreed to a settlement, which provided that the preliminary injunction would become permanent and that all claims that were not related to the discontinuance of the gymnastics team would be dismissed without prejudice. (Doc. No. 29.) The parties entered into an additional, separate agreement wherein Plaintiffs agreed not to seek a portion of the fees for work that their attorneys performed from January 1, 2004, through completion of the settlement negotiations. (Hangley Decl. ¶ 32; Doc. No. 32, Ex. 5, ¶ 50 (hereinafter, “McKee Decl.”).) Plaintiffs also agreed to forego a portion of the costs that they incurred in preparing their fee petition. (Id.)
B. Fee Petition
On June 21, 2004, Plaintiffs requested attorney's fees from WCU in the amount of $207,609.50 plus costs in the amount of $12,477.82, for a total of $220,087.32, pursuant to 42 U.S.C. § 1988, 28 U.S.C. §§ 1821, 1920, and Federal Rule of Civil Procedure 54. (See Doc. No. 32.)
Defendants objected to these totals, contending that the number of hours spent on the litigation and the hourly rate of some of Plaintiffs' attorneys were unreasonable. Defendants contended that the costs should be reduced and suggested that a reasonable figure for attorney's fees would be $81,858.10. (Doc. No. 35 at 55–58.)
C. Memorandum and Order of March 31, 2006
In a Memorandum and Order dated March 31, 2006, we granted in part and denied in part Plaintiffs' motion for attorney's fees and costs. See Barrett v. W. Chester Univ., No. 03–4978, 2006 U.S. Dist. LEXIS 15332, 2006 WL 859714 (E.D.Pa. Mar. 31, 2006) (hereinafter, “Doc. No. 44”). We stated that:
[o]ur task is to carefully review the fee request and determine whether the evidence presented supports the request. In so doing, we will consider the public nature and financial circumstances of Defendants. Alizadeh v. Safeway Stores, 910 F.2d 234, 238 (5th Cir.1990) (while the non-prevailing party's financial condition is not appropriate to consider in determining whether to award attorney's fees, it is

appropriate to consider when determining the amount of the attorney's fees). In a case like this, where the award of attorney's fees will affect the public treasury and will have a direct impact on the students at the university, our review must be particularly careful. See Keyes v. Sch. Dist. No. 1, Denver, Colo., 439 F.Supp. 393, 415 (D.Colo.1977) (in school desegregation case, court considers the fact that “the very entity mandated to restructure its school system ... will have to further expend public funds for attorneys who brought the restructuring to fruition”).
(Doc. No. 44 at 4–5 (emphasis in original).) After establishing a lodestar—the product of the reasonable number of hours worked and the rate per hour—we considered whether that figure was reasonable or whether a downward adjustment was appropriate. (Id. at 33.) As we did when granting the preliminary injunction, we noted that WCU is a public university that is supported by the taxpayers of Pennsylvania and federal funds. (Id.) Moreover, we noted that an award of attorneys' fees would negatively impact the students of WCU, including the Plaintiffs for whose benefit the preliminary injunction was imposed. (Id. at 34.) With these factors in mind and considering the fact that counsel had accepted representation of Plaintiffs as a public service, we stated: “[W]e are satisfied that a reduction of the lodestar calculation by a figure of fifteen percent (15%) is fair, reasonable, and appropriate.” (Id. at 35.) Counsel fees and costs in the total amount of $148,472.59 were awarded.
On April 14, 2006, Plaintiffs filed the instant Motion for Reconsideration, arguing that “the Court erred when it reduced the lodestar by 15 percent.” (Doc. No. 45.)
II. LEGAL STANDARD
“The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). A motion for reconsideration should be granted only upon (1) the availability of new evidence; (2) an intervening change in the law; or (3) the need to correct a clear error of law or prevent a manifest injustice. See Marriott Senior Living Quarters, Inc., v. Springfield Twp., No. 97–3660, 2000 U.S. Dist. LEXIS 17529, at *4, 2000 WL 1781937, at *2 (E.D.Pa. Nov. 20, 2000). “Dissatisfaction with the Court's ruling is not a proper basis for reconsideration.” Id. (citing Burger King Corp. v. New England Hood & Duct Cleaning Co., No. 98–3610, 2000 U.S. Dist. LEXIS 1022, at *2, 2000 WL 133756, at *1 (E.D.Pa. Feb. 4, 2000)); see also Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D.Pa.1993) (finding that a motion for reconsideration is not properly grounded on request to rethink a decision the court has already made). A motion for reconsideration may not be used as a vehicle to assert new arguments that could have been but were not previously presented to the court. See Assisted Living Group, Inc., v. Upper Dublin Twp., No. 97–3427, 1997 U.S. Dist. LEXIS 19554, at *4–5, 1997 WL 762801, at *1–2 (E.D.Pa. Dec. 8, 1997). Due to the strong interest in the finality of judgments, courts should grant motions for reconsideration sparingly. See Slagan v. John Whitman & Assoc., Inc., No. 97–3961, 1997 U.S. Dist. LEXIS 14910, at *1, 1997 WL 611587, at *1 (E.D.Pa. Sept. 26, 1997). In considering the instant motion for reconsideration, we must determine whether (1) a clear error of law or manifest injustice was committed; (2) there has been an intervening change in controlling law; or (3) new evidence has become available.

III. DISCUSSION
Plaintiffs argue in their motion for reconsideration that, in order to prevent manifest injustice, there is a need to correct clear errors of law and fact in our March 31, 2006 Memorandum and Order. Plaintiffs contend that (1) the Court is bound by Third Circuit precedent that holds “that a non-prevailing defendant's financial circumstances may not be weighed when determining attorney's fees under Section 1988, nor may fees be reduced because the attorneys have taken a lawsuit on as a matter of public interest,” (2) the Court's decision “represents a clear error of law because Defendants did not raise these objections to Plaintiffs' fee application, and the Court may not sua sponte reduce fees on grounds Defendants did not raise,” and (3) “the reduction would be manifestly unjust, since it would burden Plaintiffs with Defendants' own decision to risk taxpayer dollars when they refused Plaintiffs' repeated pleas to restore the gymnastics team and avoid litigation.” (Doc. No. 45 at 2.)
We disagree. We are satisfied that our decision to reduce the lodestar amount by fifteen percent was reasonable and justified. The Third Circuit has instructed district courts to adopt “a positive and affirmative function in the fee fixing process.” Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir.2001), cert. denied, 526 U.S. 1130, 119 S.Ct. 1802, 143 L.Ed.2d 1007 (1999). Supreme Court case law instructs district courts to analyze the reasonableness of attorneys' fees in light of the following twelve factors:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Hensley v. Eckerhart, 461 U.S. 424, 430 n. 3, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
We assess the reasonableness of attorney's fees by applying the “lodestar” formula, which multiplies “the number of hours reasonably expended by a reasonable hourly rate.” Maldonado, 256 F.3d at 184. Having calculated the lodestar, “the resulting product is presumed to be the reasonable fee to which counsel is entitled.” Id. (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)). Nevertheless, “the district court has the discretion to make certain adjustments to the lodestar.” Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990); see also Hughes v. Repko, 578 F.2d 483, 488 (3d Cir.1978) (stating that after a district court calculates the lodestar, “the court must decide whether the lodestar itself, or some greater or lesser sum, is a reasonable fee”).
As described in our Memorandum of March 31, 2006, we took the Hensley factors into consideration in reaching the lodestar figure. Even after reducing the number of hours and rate per hour requested by Plaintiffs' counsel, however, we found that the resulting figure did not fairly reflect the fact that the taxpayers of Pennsylvania, as well as WCU students, would ultimately be responsible for the large attorneys' fee award. We were concerned that WCU was a public university which was facing major budgetary concerns. In fact, budgetary concerns were a major factor in the decision to eliminate the

gymnastics team in the first instance. We recognized that during early 2003, WCU faced significant financial problems, as did many other public universities. When WCU foresaw a five percent reduction in its state funding, the Office of Student Affairs, with the Athletic Department being its largest subdivision, was faced with the challenge of cutting $260,000.00 from its budget. The Athletic Department was asked to absorb between $95,000.00 and $98,000.00 of those cuts. Such financial circumstances meant that the individuals that would be most affected by WCU's payment of a large attorneys' fee would be the WCU students. It seems obvious that the financial circumstances at WCU would be no better now.
In Choike v. Slippery Rock University of Pennsylvania, No. 06–622, 2007 U.S. Dist. LEXIS 78148, 2007 WL 3120097 (W.D.Pa. Oct. 22, 2007), the district court considered a Title IX case involving a public university and decided that reducing the lodestar was not appropriate. Id. at 2007 WL 3120097, *19–20, 2007 U.S. Dist. LEXIS 78148, *53–55. The court considered our March 31, 2006 decision, but factually distinguished the two cases. Id. The court found that “a closer review of the evidence reveals that the ‘financial plight’ was not the real cause of SRU's noncompliance with Title IX.” Id. at 2007 WL 3120097, *19–20, 2007 U.S. Dist. LEXIS 78148, *54. Interestingly, the court stated: “Had noncompliance with Title IX been limited to this period of time, I likely would have reduced the lodestar as did the Barrett court.” Id.
The fact that we granted the preliminary injunction reflects our conclusion that economic distress does not justify federal civil rights violations. Moreover, we did not find that WCU's financial crisis was a “special circumstance” that wholly excused it from paying attorneys' fees. Nevertheless, we felt and continue to feel that it is a relevant factor to consider when determining the reasonableness of the attorneys' fees under the particular circumstances of this case. See Roth v. Green, 466 F.3d 1179, 1194 (10th Cir.2006) (“ ‘[A]ll the courts of appeals which have addressed the issue have concluded that a nonprevailing [party's] ability to pay is not a proper factor to consider in determining whether to award attorneys' fees against [the non-prevailing party], but may be considered when determining the amount of the attorneys' fees to be awarded against that party.’ ” (quoting Wolfe v. Perry, 412 F.3d 707, 723–24 (6th Cir.2005))) (emphasis in original), cert. denied, 552 U.S. 814, 128 S.Ct. 69, 169 L.Ed.2d 18 (2007); Alizadeh v. Safeway Stores, 910 F.2d 234, 238 (5th Cir.1990) (holding that while the non-prevailing party's financial condition is not appropriate to consider in determining whether to award attorney's fees, it is appropriate to consider when determining the amount of the attorney's fees); Moosa v. Dolan Foster Enters., No. 95–03099, 2009 WL 1650063, at *9, 1998 U.S. Dist. LEXIS 8609, at *28 (N.D.Cal. Jan. 13, 1998) (“The court may not consider [the non-prevailing party's] ability to pay in deciding whether to award attorneys' fees, but it may be a valid factor in determining the amount of fees to be awarded.”); Moore v. County of Muskegon, No. 93–236,1993 U.S. Dist. LEXIS 18879, at *7 (W.D.Mich. Dec. 14, 1993) (“ ‘Because fees are at bottom an equitable matter, ... the courts should not hesitate to take the relative wealth of the parties into account.’ ” (quoting Rogers v. Kroger Co., 586 F.Supp. 597, 601 (S.D.Tex.1984))).
In addition, courts “have a special responsibility t ensure that taxpayers are required to reimburse prevailing parties for only those fees and expenses actually needed to achieve the favorable result.” Role Models Am., v. Brownlee, 353 F.3d 962, 975 (D.C.Cir.2004); see also Foley v. City of Lowell, 948 F.2d 10, 19 (1st Cir.1991) (“At least where public funds are involved or the public interest is otherwise

implicated, the court has a duty to consider the application [for attorneys' fees] critically to ensure overall fairness—a duty that abides even when a fee target is slipshod in its opposition to a fee application.”); Northcross v. Bd. of Educ., 611 F.2d 624, 644 (6th Cir.1979) (“I do not believe it is wrong for us to be conservative in the allowance of attorney's fees to be paid from public funds.”), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980); Green v. Nevers, 92–76881, 1993, U.S. Dist. LEXIS 7348, at *50–51, 1993 WL 1620511, at *16 (E.D.Mich. Apr. 13, 1993) (“[T]he Court believes that review and approval of attorneys' fees, as an independent part of a settlement proposal, is singularly within the province of the court.... The Court believes this is particularly true where one of the settling parties is a public entity and the attorneys' fee award is being financed by public funds.”); Tonti v. Petropoulos, No. 79–729, 1979 U.S. Dist. LEXIS 15365, at *10–11 (S.D.Ohio 1979) (“It should be noted that a major concern of courts dealing with an award of plaintiff's fees is not present here. This award will not be paid from public funds. In school desegregation cases, therefore, our Court of Appeals has been careful to hold awards to the amount necessary to achieve the purpose of the award and no more. The use of public funds for attorney fees in those cases makes less funds available for the education of the children sought to be benefitted.”) (internal citations omitted); Keyes v. Sch. Dist. No. 1, Denver, Colo., 439 F.Supp. 393, 415 (D.Colo.1977) (“[T]he fact that the public fisc ... must bear the financial burden [of an award of attorneys' fees] must not be overlooked. Attorney fee entitlement cannot jeopardize the financial realities of the agency paying the fees. Certainly the payment of fees awarded herein—and not budgeted—will affect school programming.... While this aspect of the case is not pivotal to our overall determination of fees, it certainly cannot be blindly disregarded.”); Oliver v. Kalamazoo Bd. of Educ., 73 F.R.D. 30, 48 (W.D.Mich.1976), rev'd on other grounds, 576 F.2d 714 (6th Cir.1978) (“[T]he court is aware that this fee award will draw upon public funds at a time when financial resources are especially dear. While this does not diminish petitioners' right to recover just compensation, it is a factor which the court feels may properly be considered in determining what amount is reasonable.”); Baldridge v. Nicholson, 19 Vet.App. 227, 233 (2005) (finding that when taxpayers are required to pay for attorneys' fees under the Equal Access to Justice Act, courts have a “ ‘special responsibility’ ” to award only the fees and costs needed to prevail (quoting Role Models, 353 F.3d at 975)).
We are fully aware that Plaintiffs' counsel, both at the Hangley Firm and TLPJ, demonstrated admirable lawyering skills during the course of this litigation. Moreover, there is no doubt that Plaintiffs' lawsuit, preliminary injunction, and settlement vindicated an important social interest. We also recognize that the award of attorneys' fees in such cases can serve as a deterrent against future violations of civil rights, as well as a tool to convince recalcitrant authorities that federal civil rights violators never prosper. Furthermore, we recognize that attorneys' fees must be available in order to entice counsel to assist in vindicating such civil rights.
Nevertheless, we continue to believe that the award of almost $150,000.00 in counsel fees and costs provides a reasonable balance between the competing interests here and accomplishes the desired goals. Plaintiffs' counsel receive significant compensation for a job well done and the students of WCU and the taxpayers of Pennsylvania are not punished for the error that resulted in this litigation.

We reject Plaintiffs' assertions that we committed a clear error of law when we considered Defendants' financial circumstances in determining the proper amount of counsel fees to be awarded. We also reject the assertion that we created a manifest injustice when we reduced the lodestar figure by fifteen percent. As we view the matter, it would have created an injustice if we had not. Accordingly, Plaintiffs' motion for reconsideration will be denied.
An appropriate Order will follow.
ORDER
AND NOW, this 24th day of April, 2009, upon consideration of Plaintiffs' Motion for a Reconsideration and Amendment of Award of Attorney's Fees (Doc. No. 45), and all documents submitted in support thereof and in opposition thereto, it is ORDERED that the Motion is DENIED.
IT IS SO ORDERED.
Footnotes
1
The facts related to the underlying litigation are addressed more thoroughly in our Memorandum and Order dated November 12, 2003 (Doc. No. 18), as well as our Memorandum and Order dated March 31, 2006 (Doc. No. 44).

 
 Case: 2:03-cv-04978-RBS As of: 01/31/2014 01:00 PM EST 1 of 8
CLOSED,SPECIAL
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:03−cv−04978−RBS

BARRETT et al v. WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION et al Assigned to: HONORABLE R. BARCLAY SURRICK
Case in other court: Third Circuit, 03−04635
Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/04/2003 Date Terminated: 04/09/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

ELIZABETH C. BARRETT

represented by LESLIE A. BRUECKNER TRIAL LAWYERS FOR PUBLIC JUSTICE PC 1717 MASSACHUSETTS AVE., NW SUITE 800 WASHINGTON, DC 20036−2001 202−797−8600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

SHARON F. MCKEE HANGLEY, ARONCHICK, SEGAL AND PUDLIN ONE LOGAN SQUARE 27TH FLOOR PHILA, PA 19103−6933 TEL 215−496−7060 Email: smckee@hangley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM T. HANGLEY HANGLEY ARONCHICK SEGAL &PUDLIN ONE LOGAN SQUARE, 27TH FLOOR PHILADELPHIA, PA 19103−6933 215−496−7001 Email: whangley@hangley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JESSICA DEUTSCH

represented by LESLIE A. BRUECKNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SHARON F. MCKEE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM T. HANGLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ASHLEY GILLMAN

represented by

Case: 2:03-cv-04978-RBS As of: 01/31/2014 01:00 PM EST 2 of 8

LESLIE A. BRUECKNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SHARON F. MCKEE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM T. HANGLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MELANIE HECKERT

represented by LESLIE A. BRUECKNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SHARON F. MCKEE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM T. HANGLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff STEPHANIE HERRMANN

represented by LESLIE A. BRUECKNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SHARON F. MCKEE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM T. HANGLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff CAROLINE KRYSTOPOLSKI

represented by LESLIE A. BRUECKNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SHARON F. MCKEE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM T. HANGLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:03-cv-04978-RBS As of: 01/31/2014 01:00 PM EST 3 of 8

Plaintiff CARMEN MILLS
Plaintiff KYLA−DAWN LENTI
Plaintiff CECILE ALLEN ON BEHALF OF THEMSELVES AND ALL SIMILARLY SITUATED INDIVIDUALS

represented by LESLIE A. BRUECKNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SHARON F. MCKEE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM T. HANGLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LESLIE A. BRUECKNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SHARON F. MCKEE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM T. HANGLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LESLIE A. BRUECKNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SHARON F. MCKEE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM T. HANGLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION
Defendant

represented by CLAUDIA M. TESORO OFFICE OF ATTORNEY GENERAL 21 S. 12TH ST., 3RD FL PHILADELPHIA, PA 19107−3603 215−560−2908 Email: ctesoro@attorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:03-cv-04978-RBS As of: 01/31/2014 01:00 PM EST 4 of 8

DR. MADELEINE WING ADLER

represented by CLAUDIA M. TESORO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant EDWARD M. MATEJKOVIC

represented by CLAUDIA M. TESORO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant BARBARA CLEGHORN

represented by CLAUDIA M. TESORO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/04/2003
09/04/2003 09/04/2003
09/09/2003 09/12/2003 09/15/2003 09/16/2003

# Docket Text
1 COMPLAINT against MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION ( Filing fee $ 150 receipt number 897083.), filed by CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS. (Attachments: # 1 Civil Cover Sheet)(ti, ) (Entered: 09/05/2003)
Four Original Summons Issued as to MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION. Forwarded To: Counsel on 9/5/03 (ti, ) (Entered: 09/05/2003)
2 MOTION FOR PRELIMINARY INJUNCTION DIRECTING DEFTS TO REINSTATE THE WEST CHESTER UNIVERSITY WOMEN'S GYMNASTICS TEAM, FILED BY PLFFS' CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS, CERTIFICATE OF SERVICE. (Attachments: # 1 Memo of Law# 2 Cert of Service)(gn, ) (Entered: 09/05/2003)
3 SCHEDULING ORDER THAT A HEARING ON PLFFS' MOTION FOR A PRELIMINARY INJUNCTION AND DEFTS' RESPONSE SHALL BE HELD ON 9/22/03 AT 10:00AM. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/8/03. ) 9/9/03 ENTERED AND COPIES MAILED.(gn, ) (Entered: 09/09/2003)
4 APPLICATION by plffs' CECILE ALLEN, ELIZABETH C. BARRETT, BARBARA CLEGHORN, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS for pro hac vice admission of LESLIE A. BRUECKNER, Esq., Certificate of Service. (gn, ) (Entered: 09/15/2003)
6 ENTRY OF APPEARANCE by CLAUDIA M. TESORO on behalf of MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION with CERTIFICATE OF SERVICE (ss, ) (Entered: 09/16/2003)
5 WAIVER OF SERVICE Returned Executed by CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS. MADELEINE WING ADLER waiver sent on 9/4/2003; BARBARA CLEGHORN waiver sent on 9/4/2003, answer due

Case: 2:03-cv-04978-RBS As of: 01/31/2014 01:00 PM EST 5 of 8

09/18/2003 09/26/2003
09/29/2003
09/29/2003
10/03/2003
10/05/2003
10/07/2003 10/15/2003 10/15/2003 10/15/2003 10/15/2003 11/12/2003 11/13/2003

11/3/2003; EDWARD M. MATEJKOVIC waiver sent on 9/4/2003, answer due 11/3/2003; WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION waiver sent on 9/4/2003, answer due 11/3/2003. (gn, ) (Entered: 09/16/2003)
7 ORDER THAT THE APPLICATION OF LESLIE A. BRUECKNER, ESQ., TO APPEAR PRO HAC VICE FOR PLFFS IS GRANTED. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/18/03. 9/19/03 ENTERED AND COPIES MAILED.(md, ) (Entered: 09/19/2003)
8 MOTION TO DISMISS, FILED BY DEFTS' MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, MEMORANDUM, CERTIFICATE OF SERVICE.(gn, ) (Entered: 09/29/2003)
9 Memorandum in Opposition to plffs' 2 motion for Preliminary Injunction filed by defts' MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, Certificate of Service. (gn, ) (Entered: 09/30/2003)
10 Memorandum in Opposition to defts' 8 motion to Dismiss, filed by plffs' CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS, Certificate of Service. (gn, ) Additional attachment(s) added on 10/10/2003 (gn, ). (Entered: 09/30/2003)
12 Reply Memorandum in further Support of motion to Dismiss filed by MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, Certificate of Service. (td) Additional attachment(s) added on 10/8/2003 (gn, ). (Entered: 10/06/2003)
11 Plaintiffs' Surreply Brief in Opposition to Defendants' Motion to Dismiss filed by CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS, Certificate of Service. (ar, ) (Entered: 10/06/2003)
13 TRANSCRIPT of Proceedings held on 10/1/03 before Judge R. BARCLAY SURRICK. ESR Operator: JIM FINEGAN. (gn, ) (Entered: 10/08/2003)
14 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Preliminary Injunction Hearing held on 9/29/03. ESR Operator: P. Rosser. (gn, ) (Entered: 10/15/2003)
15 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Preliminry Injunction Hearing (Day 2) held on 9/30/03. ESR Operator: P. Rosser. (gn, ) (Entered: 10/15/2003)
16 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Preliminary Injunction Hearing (Day 3) held on 10/1/03. ESR Operator: P. Rosser. (gn, ) (Entered: 10/15/2003)
17 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Preliminary Injunction Hearing (Day 4) held on 10/6/03. ESR Operator: P. Rosser. (gn, ) (Entered: 10/15/2003)
18 MEMORANDUM AND ORDER GRANTING 2 MOTION FOR PRELIMINARY INJUNCTION. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 11/12/03.) 11/13/03 ENTERED AND COPIES MAILED. (gn, ) (Entered: 11/13/2003)
19 TRANSCRIPT of Proceedings held on 9/29/03 before Judge Surrick. ESR Operator: Peggy Rosser. (gn, ) (Entered: 11/13/2003)

Case: 2:03-cv-04978-RBS As of: 01/31/2014 01:00 PM EST 6 of 8

11/13/2003 11/13/2003 11/17/2003
12/02/2003 12/02/2003
12/02/2003 12/05/2003
12/05/2003 12/09/2003
12/12/2003 01/08/2004
05/07/2004
05/07/2004 06/04/2004

20 TRANSCRIPT of Proceedings held on 9/30/03 before Judge Surrick. ESR Operator: James Finnegan. (gn, ) (Entered: 11/13/2003)
21 TRANSCRIPT of Proceedings held on 10/1/03 before Judge Surrick. ESR Operator: James Finnegan. (gn, ) (Entered: 11/13/2003)
22 ORDER THAT THE 18 MEMORANDUM AND ORDER FILED 11/12/03 BE AMENDED AS FOLLOWS: ALL REFERENCES TO "TRIALLAWYERS FOR EQUAL JUSTICE" SHALL READ "TRIAL LAWYERS FOR PUBLIC JUSTICE.". ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 11/17/03. ) 11/18/03 ENTERED AND COPIES MAILED.(gn, ) (Entered: 11/18/2003)
23 ORDER THAT A SETTLEMENT CONFERENCE HAS BEEN SCHEDULED FOR 12/23/2003 AT 10:00 AM IN ROOM 3041. ( SIGNED BY JUDGE JACOB P. HART ON 12/2/03. ) 12/2/03 ENTERED AND COPIES FAXED BY CHAMBERS.(gn, ) (Entered: 12/02/2003)
24 Notice of Appeal as to 18 Order on Motion for Preliminary Injunction by DEFENDANTS' MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, Certificate of Service. Copies to Judge, Clerk USCA, Appeals Clerk and Opposing Counsel. (TESORO, CLAUDIA) Modified on 12/4/2003 (fh) (Entered: 12/02/2003)
25 Clerk's Notice to USCA re 24 Notice of Appeal. (fh) (Entered: 12/04/2003)
USCA Appeal Fees received $ 255 receipt number 900043 re 24 Notice of Appeal, filed by MADELEINE WING ADLER, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, EDWARD M. MATEJKOVIC, BARBARA CLEGHORN (gn, ) (Entered: 12/05/2003)
26 ORDER DENYING AS MOOT DEFTS' 8 MOTION TO DISMISS. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 12/5/03.) 12/8/03 ENTERED AND COPIES MAILED. (gn, ) (Entered: 12/08/2003)
NOTICE of Docketing Record on Appeal from USCA re 24 Notice of Appeal, filed by MADELEINE WING ADLER, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, EDWARD M. MATEJKOVIC, BARBARA CLEGHORN. USCA Case Number 03−4635 (gn, ) (Entered: 12/10/2003)
27 Copy of TPO Form re 24 Notice of Appeal, : (gn, ) (Entered: 12/15/2003)
28 ORDER THAT A SECOND SETTLEMENT CONFERENCE IN THE ABOVE CAPTIONED MATTER WILL BE HELD BEFORE THE UNDERSIGNED ON 2/10/2004 AT 10:00 A.M., ETC. SIGNED BY JUDGE JACOB P. HART ON 1/7/04. 1/9/04 ENTERED AND COPIES FAXED BY CHAMBERS ON 1/7/04.(kw, ) (Entered: 01/09/2004)
29 STIPULATION AND ORDER THAT ALL CLAIMS OTHER THAN THE CLAIM THAT DEFT WCU VIOLATED TITLE IX WHEN IT SOUGHT TO ELIMINATE THE WOMEN'S GYMNASTICS TEAM AS OF THE 2003−04 ACADEMIC YEAR ARE DISMISSED WITHOUT PREJUDICE. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 5/7/04. ) 5/7/04 ENTERED AND COPIES MAILED.(gn, ) (Entered: 05/07/2004)
30 ORDER of USCA dated 5/6/04 re: Order that it is entered dismissed by the Clerk under the authority conferred upon her by Rule 42(b), FRAP Procedure without cost to either party. (Remove APPEAL FLAG) (gn, ) (Entered: 05/10/2004)
31 ORDER THAT PLFFS SHALL FILE THEIR PETITION FOR ATTORNEY'S FEES AND COSTS NO LATER THAN 6/21/04. IN ALL OTHER RESPECTS THE STIPULATION APPROVED BY THIS COURT ON 5/7/04 SHALL REMAIN IN FULL FORCE AND EFFECT. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 6/4/04. ) 6/7/04 ENTERED AND COPIES FAXED BY CHAMBERS.(gn, ) (Entered: 06/07/2004)

Case: 2:03-cv-04978-RBS As of: 01/31/2014 01:00 PM EST 7 of 8

06/21/2004 06/23/2004 07/01/2004 07/29/2004 07/29/2004 08/04/2004 08/09/2004 08/12/2004 08/18/2004 08/24/2004 08/25/2004 09/30/2004

32 MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS, FILED BY PLFFS' CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS.MEMORANDUM, CERTIFICATE OF SERVICE.(gn, ) Additional attachment(s) added on 6/22/2004 (gn, ). (Entered: 06/22/2004)
33 Revised Table of Authorities to Plaintiffs' Motion for Award of Attorney's Fees and Costs by CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS. Certificate of Service (stb, ) Additional attachment(s) added on 6/23/2004 (stb, ). (Entered: 06/23/2004)
34 Amended Certificate of Service of Sharon F. McKee re: copy of the Revised Table of Authorities to plffs' motion for award of attorney's fees and costs and memorandum of law upon Claudia M. Tesoro, Esq., Certificate of Service. (gn, ) (Entered: 07/02/2004)
35 RESPONSE in Opposition re 32 MOTION for Attorney Fees filed by MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, Certificate of Service. (TESORO, CLAUDIA) Modified on 8/2/2004 (np). (Entered: 07/29/2004)
36 EXHIBITS by deft MADELEINE WING ADLER, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, Certificate of Service. (gn, ) (Entered: 07/30/2004)
37 ORDER THAT PLFFS MAY FILE A REPLY IN SUPPORT OF PLFFS' MOTION FOR ATTORNEY'S FEES AND COSTS ON OR BEFORE 8/9/04. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 8/4/04. ) 8/5/04 ENTERED AND COPIES MAILED.(gn, ) (Entered: 08/05/2004)
38 Plaintiff's reply brief in support of the motion for attorney's fees and costs filed by CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS, certificate of service. (mac, ) (Entered: 08/10/2004)
39 Correction to Plffs' Reply Brief in support ot their motion for attorney's fees and costs filed by plffs' CECILE ALLEN, ELIZABETH C. BARRETT, JESSICA DEUTSCH, ASHLEY GILLMAN, MELANIE HECKERT, STEPHANIE HERRMANN, CAROLINE KRYSTOPOLSKI, KYLA−DAWN LENTI, CARMEN MILLS, Certificate of Service. (gn, ) Additional attachment(s) added on 8/12/2004 (gn, ). (Entered: 08/12/2004)
40 ORDER THAT DEFTS MAY FILE A SURREPLY IN OPPOSITION TO PLFFS' MOTION FOR ATTORNEY'S FEES AND COSTS ON OR BEFORE 8/24/04. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 8/18/04. ) 8/18/04 ENTERED AND COPIES MAILED.(gn, ) (Entered: 08/18/2004)
41 Memorandum of law in opposition re 32 MOTION for Attorney Fees (surreply) filed by MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, Certificate of Service. (TESORO, CLAUDIA) Modified on 8/25/2004 (np). (Entered: 08/24/2004)
42 EXHIBITS by defts' MADELEINE WING ADLER, BARBARA CLEGHORN, EDWARD M. MATEJKOVIC, WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION Surreply in opposition to plffs' motion for attorney's fees and costs, Certificate of Service. (gn, ) (Entered: 08/25/2004)
43 TRANSCRIPT of Proceedings held on 10/6/03 before Judge Surrick. ESR Operator: Jim Finegan. (gn, ) (Entered: 09/30/2004)

Case: 2:03-cv-04978-RBS As of: 01/31/2014 01:00 PM EST 8 of 8

03/31/2006
04/14/2006 04/28/2006 05/05/2006 04/24/2009 04/24/2009

44 MEMORANDUM AND ORDER THAT PLFFS ARE AWARDED COUNSL FEES AND COSTS AS FOLLOWS: HANGLEY, ARONCHICK, SEGAL &PUDLIN FEES: $108,654.22; TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. FEES: $29,803.72, ETC. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 3/31/06.) 4/3/06 ENTERED AND COPIES MAILED, E−MAILED AND FAXED BY CHAMBERS. (gn, ) (Entered: 04/03/2006)
45 MOTION for Reconsideration filed by ELIZABETH C. BARRETT.Order, Motion, Memorandum, Certificate of Service.(MC KEE, SHARON) (Entered: 04/14/2006)
46 STIPULATION AND ORDER THAT DEFTS MAY HAVE AN EXTENSION UNTIL 5/5/06 WITHIN WHICH TO RESPOND TO PLFFS' PENDING MOTION FOR RECONSIDERATION. ( SIGNED BY JUDGE R. BARCLAY SURRICK ON 4/28/06. ) 4/28/06 ENTERED AND COPIES MAILED AND FAXED BY CHAMBERS.(gn, ) (Entered: 04/28/2006)
47 Memorandum in Opposition re 45 MOTION for Reconsideration filed by WEST CHESTER UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, MADELEINE WING ADLER, EDWARD M. MATEJKOVIC, BARBARA CLEGHORN, Certificate of Service. (TESORO, CLAUDIA) Modified on 5/8/2006 (np). (Entered: 05/05/2006)
48 MEMORANDUM. ( SIGNED BY HONORABLE R. BARCLAY SURRICK ON 4/24/09. ) 4/27/09 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(gn, ) (Entered: 04/27/2009)
49 ORDER THAT PLFFS' MOTION FOR A RECONSIDERATION AND AMENDMENT OF AWARD OF ATTORNEY'S FEES (DOC #45) IS DENIED. ( SIGNED BY HONORABLE R. BARCLAY SURRICK ON 4/24/09. ) 4/27/09 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(gn, ) (Entered: 04/27/2009)