Becker et al v. North Dakota University System

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
Emily Becker, Calli Forsberg, Morgan
Stenseth, and Maya Tellman,
Plaintiffs,
vs.
The North Dakota University System,
Defendant.
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ORDER GRANTING MOTION TO
DISMISS
Case No. 3:22-cv-100
Before the Court is Defendant North Dakota University System’s (“NDUS”) motion to
dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)
and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 21.
Plaintiffs Emily Becker, Calli Forsberg, Morgan Stenseth, and Maya Tellman (together, the
“Plaintiffs”) oppose the motion. Doc. No. 22. For the reasons below, and because the Plaintiffs
lack Article III standing to pursue their claim, the motion is granted.
I. 	BACKGROUND
At the center of this dispute is the elimination of the University of North Dakota’s (“UND”)
intercollegiate women’s ice hockey program in 2017.1 Doc. No. 1. The Plaintiffs are four women,
who describe themselves (at least in part) as “would-be members” of UND’s women’s hockey
program. 	They allege an effective accommodation claim under Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681, et seq., (“Title IX”) against NDUS as a result of the
elimination of the women’s ice hockey program. Id.
1 And to date, the women’s ice hockey program has not been reinstated. Doc. No. 1 ¶ 1.
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NDUS “is a state public entity that owns and operates [UND][.]” Id. ¶ 11. Because NDUS
receives federal funding, “all of [NDUS’s] its programs and activities, including its intercollegiate
athletics program,” are subject to Title IX. 	Id. ¶ 12. This includes the intercollegiate athletic
programs at UND and its women’s ice hockey program.
As to the four Plaintiffs, the complaint contains the following factual allegations as to each:
7. Plaintiff EMILY BECKER, a native of Grand Forks, North Dakota, is 19
years old, a 2022 graduate of Red River High School in Grand Forks, and a skilled
and experienced ice hockeyplayer. Ms. Becker has played ice hockey since she was
a young child and played on her high school ice hockey team for four years. Ms.
Becker would enroll at the University of North Dakota and play on its women’s ice
hockey team if UND offered that opportunity. Ms. Becker has four remaining years
of eligibility to play intercollegiate athletics under the rules and regulations of the
National Collegiate Athletic Association (“NCAA”).
8. Plaintiff CALLI FORSBERG is 20 years old and a resident of Devils
Lake, North Dakota. She is a skilled ice hockey player and was recruited from high
school to play on the University of North Dakota’s women’s intercollegiate ice
hockey team in 2016. After the University eliminated the woman’s ice hockey team
at the conclusion of the 2016-17 season, Ms. Forsberg decided to attend Bermidji
[sic] State University in Minnesota. She would have remained at UND if the ice
hockey program had not been eliminated and would return to UND if the program
is reinstated. Ms. Forsberg has three remaining years of eligibility to play
intercollegiate athletics under the rules and regulations of the National Collegiate
Athletic Association (“NCAA”).
9. Plaintiff MORGAN STENSETH, a resident of ,Grand Forks, North
Dakota, is 19 years old and a 2021 graduate of Red River High School in Grand
Forks. She is an experienced and skilled ice hockey player, having played
competitively since she was nine years old and throughout high school and on club
teams. She was accepted at the University of North Dakota and attended [sic]
10. Plaintiff MAYA TELLMANN, a resident of Grand Forks, North
Dakota, is 18 years old and a 2021 graduate of Red River High School in Grand
Forks. She is an experienced and skilled ice hockey player, having played since she
was in kindergarten. Ms. Telman has played competitive ice hockey at the high
school and club levels and was a member of two state championship teams. She
was accepted as a student at UND, continues to play ice hockey, and would attend
UND and play on its women’s ice hockey team if the program were to be reinstated.
Ms. Tellman has four remaining years of eligibility to play intercollegiate athletics
under the rules and regulations of the National Collegiate Athletic Association
(“NCAA”).
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Id. ¶¶ 7-10. 	Additionally, Emily Becker and Calli Forsberg have never applied to UND, Maya
Tellman applied to UND in 2021 but never enrolled, and Morgan Stenseth applied to and attended
UND for two months in the fall of 2021 until she withdrew in October 2021. See Doc. No. 21-1. 2
The Plaintiffs filed their complaint against NDUS on June 16, 2022. Doc. No. 1. They
bring their claims on behalf of themselves and a putative class “of all current, prospective, and
future female students who are harmed by and want to end [NDUS’s] sex discrimination and
violation of Title IX . . .” and “on behalf of women who wish to participate in varsity women’s ice
hockey at [UND], or who want to participate in varsity sports eliminated or not offered [UND].”
Id. ¶¶ 26-27. 	They allege a Title IX effective accommodation claim and seek declaratory and
injunctive relief. Id. ¶¶ 36-41. NDUS moves to dismiss the complaint pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), asserting the Plaintiffs lack standing because they are
not students at UND, and that the complaint fails to state a claim upon which relief may be granted.
Doc. No. 21.
II. 	LAW AND ANALYSIS
Turning first to the standing and subject matter jurisdiction challenge, NDUS argues the
Plaintiffs lack Article III standing to bring their claims in federal court. More specifically, NDUS
posits that only current UND students have standing to bring a Title IX claim, and because none
of the Plaintiffs are current students at UND, they do not have standing. The Plaintiffs, for their
2 In the Court’s view, the Declaration of Scott Correll, the University Registrar for UND, is a
document embraced by the pleadings. See Ashanti v. City of Golden Valley, 666 F.3d 1148,
1150-51 (8th Cir. 2012) (“Documents necessarily embraced by the pleadings include documents
whose contents are alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the pleading.”).
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part, disagree, asserting that “would-be students” have standing to bring Title IX claims against
universities they do not attend.
A federal court “must be satisfied that it has jurisdiction before it turns to the merits of
other legal arguments” in each case. Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046,
1050 (8th Cir. 2006). “Subject matter jurisdiction defines the court’s authority to hear a given type
of case.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (quoting United States
v. Morton, 467 U.S. 822, 828 (1984)). Federal Rule of Civil Procedure 12(b)(1) requires dismissal
if the court lacks subject matter jurisdiction over a claim. 	Because the facts are essentially
undisputed and the challenge is based on the complaint, the motion is a facial attack on jurisdiction.
Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 637 (8th Cir. 2003).
To invoke subject matter jurisdiction in federal court, a plaintiff must have Article III
standing. See Disability Support All. v. Heartwood Enterprises, LLC, 885 F.3d 543, 545 (8th Cir.
2018); Wolfe v. Gilmour Mfg. Co., 143 F.3d 1122, 1126 (8th Cir. 1998). “To establish Article III
standing, plaintiffs must show (1) an injury in fact, (2) a causal relationship between the injury and
the challenged conduct, and (3) that a favorable decision will likely redress the injury.” Animal
Legal Def. Fund v. Vaught, 8 F.4th 714, 718 (8th Cir. 2021). An injury in fact is “the actual or
imminent invasion of a concrete and particularized legal interest.” Kuehl v. Sellner, 887 F.3d 845,
850 (8th Cir. 2018) (citations omitted).
As to injury-in-fact, a plaintiff must show “an invasion of a legally-protected interest which
is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical.”
Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994). “For an injury to be ‘particularized,’
it must affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, 578 U.S. 330,
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339 (2016), as revised (May 24, 2016) (internal citation and quotation omitted). “A ‘concrete’
injury must be ‘de facto’; that is, it must actually exist.” Id. at 340.
As to the requirement that the injury be “actual or imminent,” the Supreme Court has
opined that “‘some day’ intentions—without any description of concrete plans, or indeed even any
specification of when the some day will be” are insufficient. Lujan v. Defs. of Wildlife, 504 U.S.
555, 564 (1992). As such, “[a]ssertions of potential future injury do not satisfy the injury-in-fact
test.” Id. (emphasis added). A future injury can be sufficient to establish standing, however, if a
plaintiff demonstrates “‘the threatened injury is “certainly impending,” or there is a “substantial
risk” that the harm will occur.’” Alleruzzo v SuperValu, Inc. (In re SuperValu, Inc.), 870 F.3d 763,
769 (8th Cir. 2017) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)) (cleaned
up). Finally, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be
‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561.
If a plaintiff lacks Article III standing, a federal court has no subject-matter jurisdiction
over the claim and the action must be dismissed. Higgins Elec., Inc. v. O’Fallon Fire Prot. Dist.,
813 F.3d 1124, 1128 (8th Cir. 2016). And “[t]he requirements for standing do not change in the
class action context.” In re SuperValu, Inc., 870 F.3d at 768 (citing Spokeo, 136 S. Ct. at 1547
n.6). “A putative class action can proceed as long as one named plaintiff has standing.” Id. (first
citing Horne v. Flores, 557 U.S. 433, 446, (2009); then citing Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 264 & n.9 (1977)).
“Because this case is at the pleading stage, plaintiffs ‘must “clearly allege facts”
demonstrating’ the elements of standing.” Id. (quoting Spokeo, 136 S. Ct. at 1547); see also Sch.
of the Ozarks, Inc. v. Biden, 41 F.4th 992, 997 (8th Cir. 2022) (“At the pleading stage, therefore,
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a plaintiff must ‘allege sufficient facts to support a reasonable inference that [it] can satisfy the
elements of standing.’” (quoting Animal Legal Def. Fund, 8 F.4th at 718).
Turning to the substantive question of standing, the real question raised through both
parties’ filings is when, if ever, do “future” students, or “would-be” students, or former students
have standing to bring a Title IX claim against a university they do not attend? NDUS’s answer
is essentially, “Never,” while the Plaintiffs’ answer is essentially, “Always.” As is often the case,
after a careful review of the limited federal case law that addresses this question, the answer
appears to fall somewhere in between.
In Pederson v. Louisiana State University, 213 F.3d 858 (5th Cir. 2000), the Fifth Circuit
Court of Appeals took on the question of “delineating the precise level of injury a litigant must
demonstrate to establish standing to assert a claim under Title IX for ineffective accommodation.”
Id. at 870. 	There, three female undergraduate students (referred to as the Pederson Plaintiffs)
brought a Title IX effective accommodation claim, among others, against LSU after LSU failed to
field a women’s varsity soccer team. 	Id. 	at 864. The district court determined the Pederson
Plaintiffs lacked standing to assert the Title IX claim because each plaintiff lacked National
Collegiate Athletic Association (“NCAA”) eligibility and that no plaintiff had the ability to secure
a position on the women’s varsity soccer team. Id. at 870. The Fifth Circuit, however, noted these
were the wrong inquires to decide the question of standing. Instead, the Fifth Circuit drew from
analogy to the United States Supreme Court’s Equal Protection jurisprudence, citing Northeastern
Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida,
508 U.S. 656, 666 (1993), “[A] group seeking to challenge the barrier need not allege that he would
have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’ in
an equal protection case of this variety is the denial of equal treatment resulting from the imposition
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of the barrier, not the ultimate inability to obtain the benefit.” Id. at 871. The Fifth Circuit went
on to hold “that to establish standing under a Title IX effective accommodation claim, a party need
only demonstrate that she is ‘ready and able’ to compete for a position on the unfielded team.” Id.
The “ready and able” standard from Pederson is instructive and helpful in assessing
standing here, but it is not the end of the inquiry because it rests on an assumption that a current
student be “ready and able” to compete. 	And recall that the Pederson Plaintiffs were three
undergraduate students currently enrolled at LSU. So, since Pederson, some federal courts (though
mostly in the context of defining classes for class action cases) have grappled with whether
“future,” “prospective,” “would-be,” “deterred,” and/or “former” students also have standing to
bring an effective accommodation claim.
Anders v. California State University, Fresno, reviews this line of case law quite well,
though it is apparent the lines between “future,” and “prospective,” and “deterred” students are
quite fine and poorly defined. No. 121CV00179AWIBAM, 2022 WL 3371600, *3-4 (E.D. Cal.
Aug. 16, 2022), reconsideration denied, No. 1:21-CV-179-AWI-BAM, 2022 WL 17156145 (E.D.
Cal. Nov. 22, 2022). As noted in Anders, and consistent with Pederson, enrolled students (who
alleged the ready and able standard) at a certain college or university typically have standing to
pursue Title IX claims. On the other hand, as to “deterred” students, or students who were deterred
from enrolling at a certain college or university and did not enroll because of the alleged sex
discrimination in athletics, standing is unlikely and has been viewed as rather questionable. Id. at
*4 (citing Biediger v. Quinnipiac Univ., No. 3:09CV621SRU, 2010 WL 2017773, at *5 (D. Conn.
May 20, 2010)). Closer yet is the category of “future” students,3 which seems to be viewed as
3 Again, the various categories of students are, at best, poorly defined in the case law, especially
given the college and university admission processes.
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students that will be enrolling at a certain college or university but have not yet enrolled. See id.
(citing Portz v. St. Cloud State Univ., 297 F. Supp. 3d 929, 942-43 (D. Minn. 2018)). And finally,
there is the category of “former” students, where the Eighth Circuit Court of Appeals has held,
“That a plaintiff lacks eligibility or is no longer a student is an adequate basis to dismiss an
individual Title IX claim for injunctive relief,” see Grandson, 272 F.3d at 574, and other federal
courts have suggested that, for standing as to injunctive relief, a former student must “demonstrate
some likelihood of return.” See Doe 1 v. Baylor Univ., No. 6:16-CV-173-RP, 2020 WL 1557742,
at *5 (W.D. Tex. Apr. 1, 2020).
With these concepts and standards in mind, the Court returns to the specific factual
allegations in this complaint as to each Plaintiff. 	First, as to Emily Becker and Calli Forsberg,
both allege they are North Dakota residents and play ice hockey. Doc. No. 1 ¶¶ 7-8. They also
conditionally allege they “would” enroll at UND “if” UND offered a women’s ice hockey program.
Id. 	And as to Forsberg specifically, she alleges she “decided to attend Bermidji [sic] State
University in Minnesota.” Id. Neither Becker nor Forsberg allege they enrolled at UND or would
be enrolling at UND in the future. Indeed, it appears neither ever applied to attend UND.
The allegations as to Becker and Forsberg are insufficient to demonstrate Article III
standing for a Title IX claim given the case law noted above. Becker’s and Fosberg’s allegations
are precisely the type of allegations that were questioned by the federal district court in Quinnipiac.
Quinnipiac Univ., 2010 WL 2017773, at *5. There, the district court specifically questioned
“whether people who have not enrolled and have no plans of enrolling at Quinnipiac have standing
to bring this Title IX claim.” Id. It went on to note that “it seems questionable that a person who
has merely been deterred from enrolling in a school has suffered an injury that Title IX can
redress.” Id. Moreover, the district court concluded it would not certify a certain subclass of the
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class action that contained women “who did not, or will not, enroll at Quinnipiac because of the
University’s gender disparity in athletic opportunities and benefits.” 	Id. at *4. Yet these are
precisely the allegations Becker and Forsberg raise—that they did not attend UND because of the
elimination of gender disparity in athletic opportunities at UND. Notably, Becker and Forsberg
are not currently enrolled at UND, have alleged no plans of enrolling at UND, and have never
applied to attend UND. It follows then that neither has alleged any injury in fact beyond a purely
hypothetical injury. As a result, Becker and Forsberg have not clearly alleged facts demonstrating
the elements of standing.
Maya Tellman fairs no better. Doc. No. 1 ¶ 10. Unlike Becker and Forsberg, Tellman did
apply to UND in 2021 and was accepted, but ultimately never enrolled. 	Doc. No. 21-1. 	Like
Becker and Forsberg, she is a North Dakota resident who plays ice hockey. Doc. No. 1 ¶ 10. Once
again, Tellman is not currently enrolled at UND, and while she did apply to UND and was
accepted, she chose not to enroll and does not allege any future plan or intent to enroll at UND.
So, like Becker and Forsberg, Tellman has not alleged any injury in fact beyond a purely
hypothetical injury and she has not clearly alleged facts demonstrating the elements of standing.
The final Plaintiff is Morgan Stenseth, whose allegations (at least at first blush) present a
somewhat closer call. Stenseth is, like the other Plaintiffs, a North Dakota resident who plays ice
hockey. Id. ¶ 9. However, she is the only Plaintiff that applied to UND, was accepted, and did
attend UND until October 2021 when she withdrew and stopped attending. Doc. No. 21-1. These
facts place Stenseth in the category of a “former” student. 	Recall though the Eighth Circuit’s
decision in Grandson, 272 F.3d at 574 (“that a plaintiff is no longer a student is an adequate basis
to dismiss an individual Title IX claim”), and the refinement as to former students from Doe 1,
2020 WL 1557742, at *5 (that a former student may be able to demonstrate Title IX standing if
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the former student “demonstrates some likelihood of return.”). 	Here, Stenseth’s allegations fail
under both cases because she is no longer a student at UND, and she has not alleged any likelihood
of return. 	Beyond that, on its face, the complaint is fatal to her claim because the paragraph
alleging facts as to her is incomplete and cuts off at the end of page three. 	Doc. No. 1 ¶ 9.
Accordingly, like the other Plaintiffs, Stenseth has not clearly alleged facts demonstrating the
elements of standing.
For each Plaintiff, the alleged injury is “‘conjectural or hypothetical’ and is therefore
insufficient to confer standing.” Frost v. Sioux City, Iowa, 920 F.3d 1158, 1161 (8th Cir. 2019)
(quoting City of L.A. v. Lyons, 461 U.S. 95 (1983)); see also Grandson, 272 F.3d at 574. 	Put
simply, the Plaintiffs failed to allege sufficient facts to support a reasonable inference that at least
one of them can satisfy the injury-in-fact element of Article III standing. Sch. of the Ozarks, Inc.,
41 F.4th at 997.
III. 	CONCLUSION
As alleged, the Plaintiffs do not have Article III standing to pursue their Title IX claim
against NDUS. 	Without Article III standing satisfied, the Court does not have subject matter
jurisdiction over the case. Accordingly, NDUS’s motion to dismiss for lack of jurisdiction (Doc.
No. 21) is GRANTED, and the Plaintiffs’ complaint (Doc. No. 1) is DISMISSED WITHOUT
PREJUDICE. As a result, the Court FINDS AS MOOT NDUS’s motion to dismiss for failure to
state a claim (Doc. No. 21).
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 9th day of January, 2023.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
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United States District Court
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