Title IX Claim: Selective Enforcement In, Same Decision Maker Rule Out (Part 3)


Soccer player running with ball while avoiding her opponent

This article is the third and final installment in a series on Radwan v. Manuel, a case recently decided by the U.S. Circuit Court for the second Circuit regarding discipline faced by a soccer player at the University of Connecticut, a public institution.  This week’s article centers on the Title IX aspects of the case.  Previous installments covered freedom of expression in athletics and due process for athlete misconduct.

The final cause of action ruled on by the Second Circuit on appeal was Radwan’s Title IX challenge. She argued that the University sanctioned her more seriously than it has male athletes for similar misconduct, which is a claim characterized as “selective enforcement.” This cause of action is used by plaintiffs who argue that the decision to initiate the proceeding and/or the severity of the penalty was affected by the student’s gender.[i] The District Court found that Radwan failed to present evidence of similarly situated male athletes who received better treatment as it related to serious misconduct violations such as the one in which Radwan engaged.

On appeal, the Second Circuit found that Radwan had indeed presented enough evidence to move the case past summary judgment and let the case be tried before a jury. Specifically, Radwan presented multiple forms of evidence related to discriminatory intent, including: evidence of similarly situated male athletes in multiple misconduct incidents who were not disciplined as harshly, inconsistent reasoning for the level of punishment by different administrators at the University, varying assessments over time regarding the consequences of her misconduct, the failure of the University to properly apply its own student conduct policy, and giving conflicting dates to Radwan for her to appeal the termination of her athletic scholarship.

The first comparator was a male football player who kicked a ball into the stands in a game and incurred an unsportsmanlike penalty. This football player received no out of game consequences for his actions. The second comparator was a male soccer player who was arrested for theft, and only received a warning from the school and had to complete the University’s “Live Your Values” seminar. While there were other male athlete comparators submitted, the Court found enough evidence with these two submissions to make the determination that male comparators had been treated better than Radwan in similar situations. The Court recognized that in one of these comparative situations, the behavior occurred outside the context of a school sponsored activity, and that the comparators’ actions were not necessarily completely equivalent, but there were still enough questions left about the evidence to hold a hearing and let the jury decide the case.  

The Court also addressed the “same decisionmaker” rule.   In Title VII employment cases in other circuits, courts sometimes apply this rule that a person cannot be similarly situated for the purpose of comparing discipline unless the two people were disciplined by the same decisionmaker. The University argued that this should defeat Radwan’s Title IX claim, as the male athletes were not ultimately punished by the same person as the one who punished Radwan.  However, the Court refused to apply the “same decisionmaker” rule to Title IX claims, as it stated the rule could serve as a way for schools to immunize themselves from suit under similar selective enforcement actions by using a different decision maker in every case.  

Unlike in our previous two installments, the Second Circuit reversed the District Court’s grant of summary judgment for the University and the case will be remanded back to the District Court for further proceedings.


Rarely do we see so many interesting legal issues addressed in one case involving higher education law. Administrators may wish to review the decision and evaluate whether changes to their institution’s athletic disciplinary procedures may be appropriate. 

[i] Yusuf v. Vassar Coll., 5 F.3d 709, 715 (2d Cir. 1994).

[ii] Radwan at 81.

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