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Notice of Title IX Athletics Revised Consent Decree

NOTICE OF CLASS ACTION PROPOSED REVISED
CONSENT DECREE AND HEARING
ATTENTION: ALL CURRENT, PROSPECTIVE, AND
FUTURE FEMALE STUDENTS OF DELAWARE STATE
UNIVERSITY WHO PARTICIPATE, SEEK TO PARTICIPATE
OR HAVE BEEN DETERRED OR PREVENTED FROM
PARTICIPATING IN DELAWARE STATE VARSITY
ATHLETICS
PLEASE READ THIS NOTICE CAREFULLY AS IT
ADDRESSES A PROPOSED REVISED CONSENT DECREE IN
A LAWSUIT THAT MAY AFFECT YOUR RIGHTS
I. INTRODUCTION
The purpose of this notice is to inform you of a proposed revised consent decree (the
“Proposed Revised Consent Decree”) in a class action lawsuit brought against
Delaware State University (“DSU”) on February 23, 2010 by 15 female student
athletes on behalf of a class of all present and future female students of DSU
(including currently enrolled female students, admitted female students, and
prospective female students) who participate, or have been deterred or prevented
from participating in, or obtaining the benefits of varsity intercollegiate athletics at
DSU. This class action lawsuit is captioned or otherwise referred to as Foltz, et al.
v. Delaware State University, Civil Action No. 10-149 (VAC) (D. Del.) (the
“Litigation”).
The Litigation alleged that DSU violated and was continuing to violate Title IX of
the Education Amendments of 1972, 20 U.S.C. §§ 1681-88 (“Title IX”) by: (1)
failing to provide equitable athletic opportunities for its female students
(“Participation Claims”); and (2) failing to provide equitable athletic recruitment
resources to women’s varsity athletic teams (“Recruitment Claims”). The Litigation
was settled by Consent Decree approved by the Federal District Court of Delaware
on December 20, 2010 (“Original Consent Decree”).
Through the Participation Claims, the plaintiff class sought to require DSU to
comply with Title IX’s equal participation requirements and to prevent DSU from
eliminating any women’s varsity athletic teams (including particularly, the women
equestrian team, which, in 2010, DSU had announced publicly that it intended to
eliminate) and bar DSU from cutting any other women’s varsity programs unless
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and until DSU had achieved compliance with Title IX’s participation requirements.
Through the Recruitment Claims, the plaintiff class sought to ensure that DSU
provided equal recruitment resources to its athletic teams regardless of gender.
The Parties have negotiated a Revised Consent Decree because DSU has not
achieved compliance with its obligation to meet the Participation requirements of
the Original Consent Decree. DSU argues that it was unable to do so largely due to
increasing numbers of enrolled female students, among other reasons. The Revised
Consent Decree modifies the goal by substituting a fixed athletic participation ratio
DSU must achieve, defined timeline, and actions DSU must accomplish in a finite
period of time to achieve compliance.
THIS NOTICE SUMMARIZES THE
PROPOSED REVISED CONSENT DECREE
AND ADVISES YOU OF:
The status of the Litigation and the opportunity to file with the Court an
objection to the Proposed Revised Consent Decree and to appear at the Fairness
Hearing addressing the approval of the Proposed Revised Consent Decree.
II. DEFINITIONS OF THE CLASS
The plaintiff class, which was certified by the Court on July 12, 2010, is defined as:
All present and future female students of DSU, including currently
enrolled female students, female students admitted for the 2010-11
academic year, and prospective female students who participate, seek
to participate, or have been deterred or prevented from participating in
or obtaining the benefits of intercollegiate athletics sponsored by DSU
(the “Class”).
III. REASONS FOR THE REVISED CONSENT DECREE
After hard-fought litigation and extensive negotiations, the Litigation was initially
settled by the Original Consent Decree approved by this Court on December 20,

  1. The Original Consent Decree resolved Plaintiffs’ Title IX Participation and
    Recruitment Claims. To date, however, DSU has not fulfilled its obligation to
    provide equal participation opportunities to female students by providing athletic
    opportunities to female students within two-and one-half percentage points of the
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    full-time undergraduate female enrollment. The Proposed Revised Consent Decree
    provides specific actions pursuant to a detailed timetable to achieve full compliance
    within a finite time-period and Class Counsel (Terry L. Fromson of the Women’s
    Law Project, Elizabeth Wilburn Joyce of Pinckney, Weidinger, Urban & Joyce LLC,
    and Adam Gersh of Flaster Greenberg PC) have concluded that the Revised Consent
    Decree is fair, reasonable, and in the best interests of the Class. In reaching this
    conclusion, Class Counsel have analyzed the benefits of the Revised Consent
    Decree, the possible outcome of further litigation, and the expense and length of
    continued proceedings necessary to pursue contempt proceedings against DSU for
    its non-compliance with the Original Consent Decree through a contested hearing or
    trial and possible appeals. By entering into the Revised Consent Decree, DSU does
    not admit any fault or wrongdoing.
    IV. SUMMARY OF PROPOSED REVISED CONSENT DECREE
    As a benefit to the Class, DSU has agreed to do the following, as set forth in the
    Proposed Revised Consent Decree:
    • Increase the ratio of female-to-male student varsity athletic participants
    from 55/45 to 60/40 by adding two new women’s varsity teams within five (5) years
    of approval of this Revised Consent Decree by adding two new women’s teams that
    satisfy Title IX criteria for countable sports and for counting participants.

• If DSU does not achieve a 60/40 ratio of female-to-male athletic
participants by adding two new women’s varsity teams by the end of five (5) years,
the Revised Consent Decree will be extended by two years and new women’s
team(s) will be added to achieve the target of 60 percent women athletes;
• Select the new women’s teams with input from the newly established
Gender Equity in Athletics Committee, guidance from information collected through
a survey of student and applicant athletic interests prepared by an expert consultant
and conducted twice during the term of the Revised Consent Decree, a study of
athletic interests of sports by female high school students from geographic areas
from which DSU draws its students, and any requests made by students using the
new policy for requesting the addition of new teams on DSU’s website;
• Provide Plaintiffs’ counsel with notice of approval of a new women’s
athletic team within five (5) days of DSU approval and at least 30 days before the
team’s first competitive season, provide the team’s recruiting budget and efforts,
identity and biography of its coach, squad and eligibility lists;
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• Provide various items of participation documentation, including squad
and eligibility lists, competition participation, practice attendance, end of year
academic year ratio of women-to-men varsity team athletes, including individual
team sizes supporting the ratio, and projected varsity team sizes for the next
academic year for monitoring purposes.
• Provide equivalent treatment, benefits, and services of existing and new
women’s teams as defined by Title IX guidance;
• Maintain its current and new women’s varsity athletic teams so long as
the Revised Consent Decree is in effect.
V. BINDING EFFECT/RELEASES
The Proposed Revised Consent Decree, if finally approved by the Court, will bind
all members of the Class.
As a result, any person who is a member of the Class will be barred from seeking
additional injunctive relief for Title IX athletic claims raised in the Litigation and
resolved by the Revised Consent Decree during the term of the Revised Consent
Decree.
VI. HEARING ON PROPOSED REVISED CONSENT DECREE
The Court has scheduled a Fairness Hearing for September 19th, 2022, at
9:30 a.m. in the Courtroom of the Honorable Mary Pat Thynge, Chief Magistrate
Judge for the United States District Court for the District of Delaware, to determine
whether the Proposed Revised Consent Decree is fair, reasonable, and adequate and
should be finally approved.
It is not necessary for you to appear at the hearing. You may, however, choose to
appear at the hearing, either in person or through an attorney. If you wish to appear
at the hearing in person or through your own attorney, you or your attorney must
notify the Clerk of the Court, John A. Cerino, Office of the Clerk, 844 N. King St.,
Unit 18, Wilmington, Delaware 19801 and the following attorneys in writing by
September 9th, 2022:
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Elizabeth Wilburn Joyce
Pinckney, Weidinger, Urban & Joyce LLC
2 Mill Rd. Suite 204
Wilmington, DE 19806
Kathleen Furey McDonough
Potter Anderson & Corroon LLP
1313 N. Market Street, P.O. Box 951
Wilmington, DE 19899-0951
Requests to be heard at the Fairness Hearing filed by attorneys should be filed
pursuant to the Electronic Case Filing Procedures for the District of Delaware, which
are available online at http://www.ded.uscourts.gov/CMECF/CMECFMain.htm.
VII. OPT-OUT
You may not “opt out” of the provisions of the Proposed Revised Consent Decree.
You may, however, voice objections to the Revised Consent Decree as discussed
below.
VIII. OBJECTIONS TO THE
PROPOSED REVISED CONSENT DECREE
If you believe that the Court for any reason should not finally approve the Proposed
Revised Consent Decree, you may object to it. You may object through an attorney
but need not retain an attorney to object. If you want to object to the Proposed
Revised Consent Decree, you or your attorney must file an objection in writing with:
Clerk of the Court
John A. Cerino
Office of the Clerk
844 N. King St., Unit 18
Wilmington, DE 19801
with copies to:
Elizabeth Wilburn Joyce
Pinckney, Weidinger, Urban & Joyce LLC
2 Mill Rd. Suite 204
Wilmington, DE 19806
Kathleen Furey McDonough
Potter Anderson & Corroon LLP
1313 N. Market Street, P.O. Box 951
Wilmington, DE 19899-0951
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All objections must be in writing and must be received by the Clerk of the Court
on or before September 9th, 2022. All objections must state the name and number
of the Litigation, which are Foltz, et al. v. Delaware State University, Civil Action
No. 10-149 (VAC). Objections filed by attorneys should be filed pursuant to the
Electronic Case Filing Procedures for the District of Delaware, which are available
online at http://www.ded.uscourts.gov/CMECF/CMECFMain.htm.
Only Class members who have filed written objections or their attorneys shall have
the right to present objections orally at the Fairness Hearing, and they will only have
the right to do so if they expressly seek it in their written objection.
Unless otherwise ordered by the Court, any Class members who do not make their
objections or opposition to the Proposed Revised Consent Decree in the manner
described above shall be deemed to have waived all objections and opposition to the
fairness, reasonableness, and adequacy of the Proposed Revised Consent Decree and
any other matters pertaining to the Proposed Revised Consent Decree.
IX. ADDITIONAL INFORMATION
This Notice is a summary and does not describe all of the details of the Proposed
Revised Consent Decree. The Revised Consent Decree articulating all terms of the
Proposed Revised Consent Decree, and all other papers filed in the Litigation, are
available for inspection in the offices of the Clerk of the Court, John A. Cerino,
Office of the Clerk, 844 N. King St., Unit 18, Wilmington, Delaware 19801. The
documents may be examined by any Class member or by counsel during normal
court hours.
Further information about and copies of this Notice and the Revised Consent Decree
are available at http://www.womenslawproject.org . If you have additional questions, you
may also call Class Counsel Elizabeth Wilburn Joyce at (302) 504-1497.
PLEASE DO NOT CONTACT THE JUDGE DIRECTLY ABOUT THE
PROPOSED REVISED CONSENT DECREE OR THIS NOTICE.

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