United States Court of Appeals

For the Eighth Circuit 

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Nos. 19-2921, 20-1366

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Alexie Portz; Jill Kedrowski; Abigail Kantor; Marilia Roque Diversi; Fernanda 

Quintino dos Santos; Maria Hauer; Haley Bock; Kaitlyn Babich; Anna Lindell; 

Kiersten Rohde, individually and on behalf of all those similarly situated

 Plaintiffs - Appellees

v.

St. Cloud State University; Minnesota State Colleges and Universities 

 Defendants - Appellants

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Appeal from United States District Court 

for the District of Minnesota

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Submitted: October 20, 2020

Filed: October 28, 2021

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Before COLLOTON, GRASZ, and STRAS, Circuit Judges. 

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GRASZ, Circuit Judge.

Faced with a budget crisis in 2016, St. Cloud State University shut down six 

of its sports teams—including the women’s tennis and Nordic skiing teams. Several 

female student-athletes from the disbanded teams sued the University in a class 

action alleging gender discrimination in violation of Title IX of the Education 

Amendments Act of 1972.
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After a bench trial, the district court ruled for the athletes. It held that the 

University violated Title IX by failing to provide equal athletic-participation 

opportunities and failing to provide equal treatment and distribution of benefits. The 

University now appeals that ruling. We affirm in part and reverse in part. 

I. Background

As a state university that receives federal financial assistance, Title IX’s 

requirements apply to the University. In the 2015–16 academic year, the University 

sponsored twenty-three sports teams, including twelve women’s teams and eleven 

men’s teams. Of the University’s twenty-three teams, two were National Collegiate 

Athletics Association (“NCAA”) Division I teams (men’s and women’s hockey); the 

rest were Division II teams. The district court also found that the school organizes 

its teams into three “tiers” and that it offers different levels of financial support for 

each tier.1

Before the 2016–17 academic yearstarted, the University faced a budget crisis 

after its enrollment declined. The Athletic Department responded by cutting six 

sports teams: (1) women’s tennis; (2) women’s Nordic skiing; (3) men’s tennis; 

(4) men’s indoor track and field; (5) men’s outdoor track and field; and (6) men’s 

cross country. In an attempt to comply with Title IX, the University also 

implemented a roster-management plan. That plan decreased the rosters for several 

men’s teams while increasing the rosters for several women’s teams.

1

Tier one, as found by the district court, includes men’s hockey, women’s 

hockey, men’s basketball, women’s basketball, men’s football, and women’s 

volleyball. Tier two includes baseball, softball, women’s soccer, men’s swimming 

and diving, women’s swimming and diving, men’s track and field, women’s track 

and field, and wrestling. Tier three includes men’s cross country, women’s cross 

country, women’s Nordic skiing, men’s golf, women’s golf, men’s tennis, and 

women’s tennis. The University contests the district court’s finding that the 

University separates its teams into three tiers and the court’s use of the three-tier 

system in its legal analysis.
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Ten female student-athletes—all recent members of the women’s tennis or 

Nordic skiing teams when the cuts were announced—brought a class action against 

the University and the Minnesota State Colleges and Universities system (the state’s 

governing body for public institutions of higher learning) alleging Title IX 

violations. 

The district court preliminarily enjoined the University from cutting the 

women’s tennis and Nordic skiing teams. It then certified a class and dismissed the 

athletes’ non-Title-IX claims. After a bench trial, the district court ruled for the 

athletes, holding that the University failed to comply with Title IX requirements in 

its allocation of athletic participation opportunities and treatment and benefits for 

student-athletes. The district court issued declaratory relief to the athletes and 

ordered the University to take immediate steps to give its female student-athletes 

equitable participation opportunities and equitable treatment and benefits. The 

district court also awarded attorney fees and costs to the athletes totaling more than

one million dollars.

II. Analysis

 “After a bench trial, we review the district court’s legal conclusions de novo 

and its factual findings for clear error.” Lawn Managers, Inc. v. Progressive Lawn 

Managers, Inc., 959 F.3d 903, 908 (8th Cir. 2020). We review the district court’s 

grant of a permanent injunction and its evidentiary rulings for abuse of discretion. 

Miller v. Thurston, 967 F.3d 727, 735 (8th Cir. 2020) (“A district court abuses its 

discretion by resting its decision on clearly erroneous factual findings or an 

erroneous legal conclusion.”); Holmes v. Slay, 895 F.3d 993, 998–99 (8th Cir. 2018) 

(noting that we will only reverse an evidentiary ruling “if there was a clear and 

prejudicial abuse of discretion” (quoting Der v. Connolly, 666 F.3d 1120, 1130 (8th 

Cir. 2012))).
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A. Title IX Background

Under Title IX, “[n]o 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 

assistance[.]” 20 U.S.C. § 1681(a) (emphasis added). In short, the statute bars 

federally funded educational institutions “from engaging in sex-based 

discrimination.” See Chalenor v. Univ. of N.D., 291 F.3d 1042, 1044 (8th Cir. 2002).

The Department of Health, Education, and Welfare (“HEW”)2 promulgated a 

regulation implementing Title IX in 1975. Id. at 1045; see McCormick ex rel. 

McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 286–93, 290 (2d Cir. 2004) 

(recounting the details of Title IX’s passage and implementation). That regulation

gives ten factors for the agency to consider in determining if an institution 

“provid[es] equal athletic opportunity for members of both sexes.” 34 C.F.R. 

§ 106.41(c) (2020) (ED regulation); 45 C.F.R. § 86.41(c) (2020) (HHS regulation). 

The first factor requires “effective[] accommodat[ion]” of the interests and abilities 

for both sexes (i.e., equitable participation opportunities). 34 C.F.R. § 106.41(c)(1). 

To determine whether the athletic programs are providing equitable treatment and 

benefits to their male and female athletes, courts look to the other nine factors. See 

McCormick, 370 F.3d at 291 (“Title IX claims alleging that a school provides 

unequal benefits and opportunities to its male and female athletes are generally 

referred to as ‘equal treatment’ claims and derive from factors two through ten of 

the regulations.” (quoting Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.2 (2d Cir. 

1999))). Those factors—sometimes known as the laundry list—are (2) 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 

2

The Department of Education and the Department of Health and Human 

Services have since succeeded the Department of Health, Education, and Welfare 

and have each promulgated identical versions of HEW’s original regulation. 
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facilities and services; (9) provision of housing, dining facilities, and services; and 

(10) publicity. 34 C.F.R. § 106.41(c)(2)-(10).

Title IX challenges usually fall into two groups: (1) participationopportunities challenges (governed by factor one) and (2) treatment-and-benefits 

challenges (governed by factors two through ten). This case involves both.

To clarify the meaning of its original regulation, HEW issued a policy 

interpretation in 1979. See 44 Fed. Reg. 71413–71423 (1979) (the “Interpretation”); 

see also Chalenor, 291 F.3d at 1047 (concluding that we owe “controlling 

deference” to the Interpretation). The Interpretation offers more guidance about

what constitutes a participation-opportunities violation and a treatment-and-benefits 

violation.

 To survive a participation-opportunities challenge under § VII.C.5(a) of the 

Interpretation—and show effective accommodation under factor one—athletic 

programs must meet one of three standards, known as the “three-part test.”3

 44 Fed. 

Reg. at 71418. Courts refer to the three standards in the three-part test as Prongs 

One, Two, and Three.

The three-part test gives institutions “three individual avenues to choose 

from” to comply with Title IX’s requirements that participation opportunities be 

offered to both sexes in an equal manner. See Chalenor, 291 F.3d at 1045–46 

(quoting Department of Education, Office for Civil Rights, Clarification of 

Intercollegiate Athletics Policy Guidance: The Three-Part Test (Jan. 16, 1996)). 

Prong One requires that the “participation opportunities” provided to male and 

3

Beyond the three-part test (§ VII.C.5(a)), “effective accommodation” under 

the Levels of Competition provision (§ VII.C.5) also requires that programs meet 

the levels-of-competition test (§ VII.C.5(b)). 44 Fed. Reg. at 71418. Here, the 

district court ruled that the University met the levels-of-competition test, and the 

athletes did not cross appeal, so this issue is not before us. See Duit Constr. Co. v. 

Bennett, 796 F.3d 938, 941 (8th Cir. 2015).
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female students be “substantially proportionate” in numbers “to their respective 

enrollments.” Id. (emphasis added). Prong Two requires a “history and continuing 

practice of program expansion” “responsive to the developing interests and abilities 

of the members of that sex.” Id. (emphasis added). Prong Three requires that the 

“present program” has “fully and effectively accommodated” “the interests and 

abilities of the members of that sex.” Id. (emphasis added). 

The Interpretation also offers guidance on how to evaluate a treatment-andbenefits challenge under § VII.B. Under the heading “Overall Determination of 

Compliance” within § VII.B.5, the Interpretation lays out three ways to determine if 

an institution is complying with § VII.B of the regulation by providing equitable 

treatment and benefits to its athletes: 

a. Whether the policies of an institution are discriminatory in language 

or effect; or

b. Whether disparities of a substantial and unjustified nature exist in 

the benefits, treatment, services, or opportunities afforded male and 

female athletes in the institution’s program as a whole; or 

c. Whether disparities in benefits, treatment, services, or opportunities 

in individual segments of the program are substantial enough in and 

of themselves to deny equality of athletic opportunities.

44 Fed. Reg. at 71417 (emphasis added). Under the emphasized language’s 

unambiguous text, in evaluating a program’s distribution of treatment and benefits, 

a court may find a program-wide violation (global) when “substantial and 

unjustified” disparities exist. The text also allows a court to find a violation where 

disparities in “individual segments of the program” (i.e., a specific laundry list 

factor) “are substantial enough in and of themselves” to deny “equality of athletic 

opportunities.” See Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 919–

20 (7th Cir. 2012) (discussing how disparities within an “individual segment[] of the 

program”—in that case the “scheduling” laundry list factor—may violate Title IX

(quoting 44 Fed. Reg. at 71417)); see also McCormick, 370 F.3d at 292–93 (calling 
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the laundry list factors “program components” and discussing how “a disparity in 

one program component . . . can alone constitute a Title IX violation”). 

The Interpretation also “contemplates that a disparity [in a program’s 

distribution of treatment and benefits] disadvantaging one sex in one part of a 

school’s athletics program can be offset by a comparable advantage to that sex in 

another area.” Id. at 293; see 44 Fed. Reg. at 71415 (“Institutions will be in 

compliance [under § VII.B.2] 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.” (emphasis added)). And even if “comparisons of program components 

reveal” that treatment, benefits, and opportunities “are not equivalent in kind, 

quality, or availability,” the agency may still deem institutions compliant if “the 

differences are the result of nondiscriminatory factors” such as “unique aspects of 

particular sports” or “legitimately sex-neutral factors related to special 

circumstances of a temporary nature.” Id. at 71415–16. 

B. The Tiers Finding

The University first challenges the district court’s factual finding that the 

University operates its athletic program according to tiers and that it allocates 

benefits based on such a system. It argues that this finding is clearly erroneous. We 

disagree. 

The district court found that the University “organizes its intercollegiate 

sports into three tiers offering three different levels of support to each tier.” At least 

two University-specific pieces of evidence support this conclusion. First, trial 

testimony from the University’s Title IX compliance officer indicates that the 

school’s Gender Equity Advisory Committee discussed the three tiers for sports in 

the University’s athletic program at a 2011 meeting. Second, the University’s 

athletic director clearly noted the distinction during a deposition.
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The University argues convincingly that the more noteworthy distinction is 

between its Division I teams (men’s and women’s hockey) and its Division II teams 

(all the rest). But the district court acknowledged the distinction between the 

divisions several times in its order. And, in any event, that distinction’s existence

does not preclude the existence of a separate, three-tiered rubric for dividing the 

teams at this particular school. 

Thus, we conclude there is no clear error in the district court’s finding that the 

University uses a tier system.

C. Participation Opportunities

The University next argues that the district court wrongly “applied its finding 

of tiers in its review of the allocation of athletic participation opportunities[.]” It 

argues that the district court committed legal error because it allegedly used the tiers 

finding in its conclusion that the University did not provide equal participation

opportunities.

But this argument fails before it starts. Simply put: the district court did not 

employ the tier finding in its participation-opportunity analysis at all. While the 

University correctly notes that the district court relied on the tiers concept in its 

treatment-and-benefits analysis, see infra, it did not rely on the tiers concept in its 

participation-opportunities analysis. Instead, the district court held that the 

University failed to comply with any prong from the three-part test. That part of the 

district court’s holding (and its reasoning) says nothing about the tier system. 4

4

As discussed in Section II.D.1., the district court did erroneously reference 

tiers when fashioning its remedy related to participation opportunities, and thus the 

injunction must be corrected. But unlike its treatment and benefits analysis, the 

district court did not utilize tiers when analyzing whether the University failed to 

provide equal participation opportunities. 
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Because the University does not advance any other substantive arguments 

against the district court’s participation-opportunity conclusions, we hold that the 

district court did not err in concluding that the University violated Title IX by not 

providing equitable participation opportunities for men and women.

D. Treatment and Benefits

The University further argues that the district court’s treatment-and-benefits 

analysis suffers from multiple defects. We agree that the district court erred in two 

meaningful ways when it conducted that analysis. 

1. Use of Tiers

 The district court concluded that the University failed to provide equitable 

treatment and distribution of benefits among the tiers of its program and that this 

failure violates Title IX. It began its analysis of treatment and benefits by stating:

[The University] has three tiers of support for its sports programs. On 

a global level, treatment and benefits are not equitable because 

substantially fewer women benefited from the Tier 1 level of support 

than men. Tier 1 teams generally have adequate or better equipment, 

supplies, locker rooms, practice and competitive facilities, and medical 

training facilities. . . . The substantial inequity results from a 

disproportionate number of male athletes benefitting from the better 

treatment and benefits conferred on Tier 1 teams over Tier 2 and 3 

teams. . . . For an institution to meet Title IX’s treatment and benefits 

requirement when it creates different tiers of support for its teams, a 

substantially equivalent number of men and women should be in each 

tier and receive the same quality of benefits and treatment.

That paragraph reveals the district court improperly relied on the tiers finding to 

conclude that “[o]n a global level” the University inequitably allocated treatment 

and benefits between men’s and women’s sports. Doing so amounted to legal error. 
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The Interpretation states that a treatment-and-benefits analysis under 

§ VII.B.5 involves examining disparities (1) “in the institution’s program as a 

whole” (global analysis) and/or (2) “in individual segments of the program” (factorby-factor analysis). 44 Fed Reg. at 71417. The global part of the treatment-andbenefits analysis calls for a holistic examination of how the University distributes 

treatment and benefits across the entire program. But the district court’s global 

analysis was improper because it only considered parts (e.g., tiers) of the athletic 

program rather than “the institution’s program as a whole.” 44 Fed Reg. at 71417

(emphasis added). 

The Interpretation supports the University’s argument that the district court 

was wrong to mandate equity among the “tiers.” In responding to commentators 

who suggested measuring equality of treatment and benefits using a “sport specific” 

comparison, the Interpretation states that “the regulation frames the general 

compliance obligations of recipients in terms of program-wide benefits and 

opportunities,” as opposed to a “sport-specific comparison.” Id. at 71422 (emphasis 

added); see Parker, 667 F.3d at 919. This logic illustrates why the district court 

erred in conducting the treatment-and-benefits analysis using tiers. By mandating 

equity “at every tier of its athletic department,” the district court failed to perform 

the global treatment-and-benefits analysis using the proper aperture. It should have 

focused on “program-wide benefits and opportunities” rather than on a smaller subdivision of the program (e.g., sports, tiers of sports, etc.). 

The district court’s use of the tiers concept in its injunction, both as to 

participation opportunities and as to treatment and benefits, highlights this error. In 

its current form, the injunction requires the University “take immediate steps” to 

provide “equitable athletic-related treatment and benefits at every tier of its athletic 

department.” And the injunction mandates that the University “take immediate steps

toward eliminating the inequity stemming from the unequal distribution of women 

and men’s participation opportunities among the tiers of support[.]” Right now, the 

injunction requires more than Title IX does and places the district court in the 

position of “de facto super-athletic department director,” which is to say, outside its 
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properly limited judicial role by going beyond the requirements of Title IX. 

Grandson v. Univ. of Minn., 272 F.3d 568, 573 (8th Cir. 2001).5

 We therefore 

conclude that the district court erred by requiring the University to provide equitable 

treatment and benefits “among the tiers of support,” and by mandating steps toward 

eliminating the unequal distribution of “participation opportunities among the tiers.”

2. Volleyball Team

Second, in conducting the treatment-and-benefits analysis, the district court 

made findings of fact as to each major team and the quality of its resources (e.g., 

facilities, equipment, coaching staff). But in making those findings, the district court 

failed to devote a section to the volleyball team and, consequently, did not mention 

any evidence related to that team in its treatment-and-benefits analysis. For 

example, when the district court discussed the “travel” factor, it failed to mention 

the volleyball team even though it is one of the few teams at the University that 

travels by plane. We view this as a significant omission, particularly considering 

women’s volleyball was one of the two women’s Tier I sports. The record indicates 

that the University has given the women’s volleyball team some of the finest

facilities and best resources of any of its teams. As a result, a more complete review 

of the evidence related to the volleyball team’s treatment and benefits has the 

potential to impact the analysis on the treatment-and-benefits issue generally or as 

to specific factors from the laundry list. We therefore conclude that this significant 

omission of important evidence from the analysis was error. See generally King v. 

United States, 553 F.3d 1156, 1161 (8th Cir. 2009) (explaining Fed. R. Civ. P. 52(a) 

5

The injunction’s reliance on a tier-based approach to treatment and benefits 

and participation opportunities fails to recognize the flexibility that Title IX affords 

to the University in providing equal athletic opportunity. If, for example, a collegiate 

sports program had predominantly men’s sports teams in what was considered Tier 

I and III, and predominantly women’s sports teams in Tier II, an analysis that failed 

to holistically examine the program would be faulty. The institution’s athletic 

program as a whole could, depending on the facts, be in compliance notwithstanding 

disparities among or within the tiers. 
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requires the district court conducting a bench trial to provide sufficient findings of 

fact to permit review of its decision).6

III. Conclusion

For these reasons, we affirm in part as to the district court’s conclusion that 

the University did not comply with Title IX in its allocation of athletic participation 

opportunities. We reverse as to its conclusion regarding treatment and benefits and 

remand for further proceedings not inconsistent with this opinion. We vacate the 

injunction as it relates to treatment and benefits and to the extent it requires equity

in participation opportunities among tiers rather than program wide. We also vacate

the attorney fees and costs award in light of our opinion.

COLLOTON, Circuit Judge, dissenting.

I would affirm the judgment of the district court. There is no legal error in the 

district court’s analysis. The record developed at trial amply supports the district 

court’s finding that the University did not provide equal athletic opportunity for 

members of both sexes. The majority asserts two errors, but neither justifies setting 

aside the judgment. 

6

The University also contends that the district court erred in admitting as 

evidence the athletes’ inspection of the University’s property following the close of 

discovery because that inspection violated the discovery scheduling order and failed 

to comply with Federal Rule of Civil Procedure 34. We review such an evidentiary 

ruling for abuse of discretion, Holmes, 895 F.3d at 999–1000 (quoting Der, 666 F.3d 

at 1130), and will only reverse an improper evidentiary ruling if the objecting party 

shows that the evidentiary error was “prejudicial[.]” Id. While we think that 

allowing this evidence to come in—in violation of both a scheduling order and Rule 

34—is troubling, we cannot say the district court abused its discretion because the 

University has failed to show it was prejudiced by the admission.
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First, the majority perceives error in the district court’s conclusion that “[o]n 

a global level, treatment and benefits are not equal because substantially fewer 

women benefited from the Tier 1 level of support than men.” This conclusion 

properly considered the University’s program as a whole. As the district court 

explained, more men than women participated in sports placed in Tier 1 and Tier 2; 

more women than men participated in sports in Tier 3. Yet the University provided 

greater support to athletic teams in Tier 1 and Tier 2, and the lowest level of support 

to teams in Tier 3. Considering the institution’s program as a whole, the district 

court reached the common-sense conclusion that where the highest level of support 

goes to the tiers in which men are over-represented, and the lowest level of support 

goes to the tier in which women are over-represented, the university on a global level 

does not provide equal athletic opportunity for members of both sexes. The 

injunction properly requires that if the University elects to retain a three-tier system, 

then it must rectify the inequity that stems from the unequal distribution of 

participation opportunities among the tiers of the support. There is no legal error in 

this conclusion.

7

The majority also says that the judgment cannot stand because the district 

court’s 65-page decision did not include a more lengthy discussion of the women’s 

volleyball program. This is not the stuff of reversible error. This court reviews 

judgments not opinions, and reversal is not warranted simply to require a more 

exhaustive opinion from the district court. The district court did not fail to resolve 

an important credibility question or other significant question of disputed fact. Cf. 

7

The University does not seek flexibility to adopt the majority’s unlikely 

hypothetical tiering plan. Ante, at 11 n.5. The University argues instead that it 

should be allowed to continue allocating a greater proportion of Tier 1 participation 

opportunities to men while female participants remain over-represented on teams in 

Tier 3. Appellant’s Br. 23-24. In any event, a dispute about the phrasing of the 

injunction would not justify setting aside the district court’s well-supported finding 

of liability for the University’s failure to provide equal treatment and benefits to 

women.
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King v. United States, 553 F.3d 1156, 1161 (8th Cir. 2009). The University’s brief 

on appeal adverted to the volleyball-related evidence only in a footnote, and 

consideration of that evidence does not establish that any factual finding of the 

district court was clearly erroneous.

The majority specifies only that the volleyball team is “one of the few teams 

at the University that travels by plane.” The district court found that the factor of 

“travel and per diem expenses” favored men over women, because “men’s teams are 

able to travel more frequently, more comfortably, and for longer periods of time, and 

[the University] funds more of the men’s teams’ expenses.” R. Doc. 380, at 55. The 

court discussed travel by the basketball, baseball, softball, skiing, tennis, swimming, 

and diving teams. The record showed that the men’s and women’s hockey teams 

traveled by a combination of bus and commercial flights, that no other team traveled 

regularly by air, and that other teams could travel by air for a preseason contest or 

over spring break in the case of baseball and softball. R. Doc. 361, at 93 (Tr. 1127). 

Brief testimony about the volleyball team showed only that the team could travel by 

air for a preseason contest. Id. Consideration of this testimony does not establish 

clear error in the district court’s overall finding about travel and per diem expenses.

The only other evidence about the volleyball program cited in the University’s 

footnote concerns the locker room. The district court found that the University’s 

provision of locker rooms, practice facilities, and competitive facilities substantially 

and inequitably favored male athletes. After discussing facilities for football, 

hockey, basketball, softball, soccer, skiing, baseball, and wrestling, the court found 

that “female athletes overall have lower quality locker rooms.” R. Doc. 380, at 56. 

The evidence showed that the women’s volleyball locker room was upgraded a few 

years ago, with wood and lockers, but it is not “full size” and is not as big as the 

expanded men’s basketball locker room. R. Doc. 362, at 63 (Tr. 1305). Adding this 

evidence to the mix with nine other teams does not undermine the district court’s 

finding as to locker rooms. Nor does it show clear error in the district court’s larger 

finding that female athletes are not afforded equal opportunity with respect to locker 

rooms, practice facilities, and competitive facilities taken together.
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The district court conducted a week-long bench trial that produced a transcript 

of nearly 1500 pages. The court rendered a thorough decision with detailed findings 

of fact and lengthy conclusions of law. The record well supports the determination 

that the University did not provide equal athletic opportunity for members of both 

sexes. There is no need for additional findings of fact or reformulated legal 

conclusions. I would affirm the judgment and the related order on attorney’s fees 

and costs.

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