Full opinion text
OPINION DOHERTY, District Judge. PROCEDURAL HISTORY Plaintiffs’ initial complaint entitled “Complaint — Class Action” was filed in the Middle District of Louisiana on March 31, 1994, by Beth Pederson, Lisa Ollar and Samantha Clark, hereinafter referred to as (“Pederson” or “Pederson plaintiffs”), each individually and “on behalf of all others similarly situated,” seeking “declaratory, injunctive and monetary relief” against Louisiana State University, William E. Davis, individually and in his official capacity as Chancellor of Louisiana State University, Joe Dean, individually and in his official capacity as Athletic Director of Louisiana State University, Elaine D. Abell, Clarence L. Barney, Milton C. Chapman, Elenora A. Cawthon, David Conroy, Charles V. Cusimano, Gordon E. Dore, Janice M. Foster, Jimmy A. Lalonde, Jr., Joseph Lesage, Jr., Rolfe McCollister, Jr., Roger H. Ogden, Nicholas Smith, Jr., Joseph L. Waltz, Charles S. Weems, III, John R. Williams, Milton J. Womack, each in their official capacity as members of the Board of Supervisors (“LSU”). The equitable relief requested in the complaint included an affirmative injunction by this Court ordering LSU to field an intercollegiate varsity women’s fast pitch softball team in 1995 and a intercollegiate varsity women’s soccer team in 1994. As the basis for their claim, plaintiffs specifically alleged interest and skill in soccer; however, none of the three asserted interest or ability in fast pitch softball or any other sport. Defendants answered on May 16, 1994, denying plaintiffs’ allegations and contesting' plaintiffs’ standing to assert an action or class action requesting remedy as to women’s fast pitch softball. On May 16, 1994, plaintiffs filed a Motion for Preliminary Injunction, a Motion for Class Certification, and requested expedited hearing. The Motion for Preliminary Injunction sought to compel LSU to institute intercollegiate varsity soccer in the Fall of 1994 and intercollegiate varsity fast pitch softball in the Fall of 1995. Judge Parker, then presiding, denied plaintiffs’ request for expedited hearing on May 20, 1994 and both motions were scheduled for hearing on June 17, 1994 in the Middle District of Louisiana. Thereafter, Judges Parker and Polozola, the two sitting judges of the Middle District, recused and the case was referred to Judge Politz, the Chief Judge of the Fifth Circuit, for reassignment. On June 28,1994, the suit was reassigned to Judge Rebecca F. Doherty of the Western District; however, the case remains filed within the Middle District of Louisiana. This Court responded to plaintiffs’ request for “expeditious” hearing on the Preliminary Injunction and class certification by holding a telephone status conference with all counsel on June 29, 1994. As a result of those discussions, the hearing for Preliminary Injunction was set for July 28 and 29, 1994 and a scheduling order was issued. During the telephone conference, both parties agreed to a bifurcated trial; damages to be tried separately from the case on the merits. On September 19, 1994, defendants filed a Motion for Summary Judgment, urging the dismissal of plaintiffs’ Motion for Preliminary Injunction alleging plaintiffs lacked standing to seek the requested mandatory Preliminary Injunction affecting fast pitch softball. Defendants argued none of the named plaintiffs had desire to participate in fast pitch softball, and therefore, LSU’s actions concerning fast pitch softball had no impact on those plaintiffs and accordingly plaintiffs lacked standing to ask this Court to force LSU to change its decisions concerning fast pitch softball. After receipt of numerous memoranda both in support of and in opposition to defendants’ Motion for Summary Judgment, on October 11, 1994 via telephone conference, this Court issued a preliminary ruling as to defendants’ motion indicating its intent to grant defendants’ motion on different grounds and to deny plaintiffs’ request for Preliminary Injunction ordering LSU to act upon fast pitch softball. Formal written reasons were issued on October 28, 1994 dismissing plaintiffs’ Motion for Preliminary Injunction. After denial of the Pederson preliminary injunction, Cindy and Karla Pineda sought to introduce their claims into the Pederson suit via an “intervention of right.” This Court denied the request to intervene as procedurally improper as it contained new, distinct and expanded claims from those made by Pederson and invited plaintiffs’ counsel to properly join the Pinedas and their new claims as party plaintiffs in the Pederson suit. Plaintiffs did not do so. At a December 1, 1994 status conference, the Pederson plaintiffs informed the Court that their Motion for Class Certification was couched under only Federal Rules of Civil Procedure 23(b)(2), seeking certification of an injunctive class. Monetary damages were sought only by the named plaintiffs individually; plaintiffs did not seek certification of a class pursuant to Federal Rule of Civil Procedure 23(b)(3) or monetary damages for the class. At the December 1, 1994 conference the Court bifurcated the trial into Stage One on the equitable relief sought by plaintiffs and Stage Two on the issue of monetary damages. Stage One was set for October 10 through 27, 1995 involving those issues within the request for declaratory and/or injunc-tive relief as to the named plaintiffs and any class that might be certified by the Court. Stage Two would be heard after Stage One and would address the damage claims made by the Pederson plaintiffs. On January 3, 1995 Cindy and Karla Pine-da filed suit in the Eastern District of Louisiana, requesting declaratory and injunctive relief against LSU and, in particular, a preliminary injunction as to fast pitch softball. Defendants moved to transfer the case to the Middle District and to consolidate the Pine-da suit with the pending Pederson suit. Plaintiffs opposed the transfer of the case to the Middle District and initially opposed the proposed consolidation with the Pederson suit. Transfer was granted on February 22, 1995 and a Motion to Consolidate was presented to and signed by Judge Polozola on March 30,1995. The Court ruled on July 5,1995 denying the Pinedas’ request for a preliminary injunction requesting: (a) institution of intercollegiate varsity fast pitch softball in the Fall of 1995, (b) requesting LSU present a plan for compliance with Title IX, and (c) freezing current expenditures arid administrative support for male varsity sports at Louisiana State University. Full written reasons for the denial are contained within this Court’s October 28,1994 ruling. On September 14, 1995, this Court issued several rulings, one Memorandum Ruling delineating the claims which remained before the Court at that juncture. In a separate Memorandum Ruling, this Court provisionally certified the following class. Those female students enrolled at LSU since 1993 and any time thereafter who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU’s failure to field teams in said female varsity athletics. This Court provisionally certified the class, giving plaintiffs an opportunity to bolster their argument and evidence that sufficient numerosity existed. The Court further granted counsel for plaintiffs thirty days from the close of testimony in Stage One to submit the additional support of their claim as to the numerosity requirement. Stage One was tried before this Court beginning October 10, 1995, with closing arguments held on November 8,1995. At trial, plaintiffs’ remaining claims included individual plaintiffs and class claims for declaratory and/or injunctive relief against Joe Dean and William Davis individually and in their official capacities and the Louisiana State Board of Supervisors based on the only remaining issue: LSU’s alleged failure to effectively accommodate its female students in violation of Title IX. Plaintiffs asked for a variety of specific injunctive relief, the particulars of which continued to change up to and through the trial on the merits, and for a declaration that LSU was in violation of Title IX. FACTS LSU has provided opportunity for its male students to participate in intercollegiate varsity athletics since the inception of football and men’s baseball in 1893, and men’s basketball in 1908. Intercollegiate varsity athletic opportunity for its women athletes was provided in 1977 with the initiation of a women’s sports program. In 1979, women’s fast pitch softball was added, but was dropped following the 1982-83 season with no credible reason given. No additional sports were added for either males or females until 1993 when the decision was made to add two intercollegiate varsity women’s sports in the 1995 season, fast pitch softball and soccer. Implementation of that decision was delayed in accordance with an agreement of the Southeastern Conference schools and requests by the Senior Women’s Administrators of the Southeastern Conference. The agreement called for commencing competitive conference play in soccer in the Fall of 1995 and to begin implementation of softball in the Fall of 1996 with competitive conference play in the Spring of 1997. LSU hired a soccer coach, Miriam Hickey, in August of 1994 and began the process of obtaining facilities and athletes for play to begin in the Fall of 1995. Play at the intercollegiate varsity level began in 1995. LSU hired a softball coach, Cathy Compton, effective June 1, 1995 and began the process of recruiting athletes and obtaining a facility to initiate play in the Fall off-season of 1996 and intercollegiate competition in the spring of 1997. Play has not yet begun. Neither facilities nor recruiting for either the softball or soccer teams is complete. A full complement of scholarships for both soccer and softball, ie., eleven each, have been allocated. However, presently only two partial softball scholarships have been awarded to two potential team players. Also, less than the full complement of soccer scholarships has been awarded. How many scholarships to award, when to award them, and to whom the scholarships are awarded is within the discretion of the respective coaches. Testimony by Assistant Athletic Director, Greg LaFleur, established that, as of 1993, LSU recognized there was sufficient interest and ability among women students on its campus for LSU to consider additional action by the Athletic Department. Additional factual findings are made throughout this opinion and will not be repeated here. STANDING Before this Court can address the merits of plaintiffs’ claims, the Court must first visit plaintiffs’ standing to bring their claims in view of the jurisdictional limitations imposed by Article III, Section 2 of the United States Constitution. Federal judicial power may be asserted only to resolve “eases and controversies.” Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Allen and subsequent rulings by the Supreme Court hold that “the core component of standing is an essential and unchanging part of the case or controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Without standing, plaintiffs’ claims cannot go forward. I. Law In order to establish standing under Article III of the United States Constitution, a plaintiff must demonstrate: [ 1] that [s]he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant ... [ 2] that the injury “fairly can be traced to the challenged action” and [ 3] [that the injury] “is likely to be redressed by a favorable decision.” Cramer v. Skinner, 931 F.2d 1020, 1024 (5th Cir.), cert. denied, 502 U.S. 907, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991) (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)). In making a determination under this framework, “a court should consider three prudential concerns: 1) whether the plaintiffs complaint falls within the zone of interests protected by the statute or constitutional provision at issue; 2) whether the complaint raises abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches; and 3) whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties.” Cramer, 931 F.2d at 1024-25 (citations omitted). Standing was directly addressed in the recent United States Supreme Court decision of United States v. Hays, — U.S. -, -, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995). The Court in that Voting Rights Act case dismissed the claims of the appellees, finding they lacked standing to raise the issue. The Court reiterated that “the federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’ ” It is by now well settled that “the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by favorable decision.” ... In light of these principles, we have repeatedly refused to recognize a generalized grievance against allegedly illegal governmental conduct as sufficient for standing to invoke the federal judicial power.... “[I]t is the burden of the ‘party who seeks the exercise of jurisdiction in his favor,’ ... ‘clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.’ ” Hays was a Voting Rights Act case wherein the appellees did not live in the district that was the primary focus of the alleged racial gerrymandering. They did not otherwise demonstrate they personally had been subject to a racial classification. As such, the Court noted they lacked standing to raise their claim and rejected appellees’ position that “anybody in the state has a claim,” The Court required a demonstration of “individualized harm” before standing could be found and noted that unless evidence of such “individualized harm” were present the plaintiffs “would be asserting only a generalized grievance against governmental conduct of which he or she does not approve.” The Hays court noted that the appellees had pointed to no evidence tending to show that they had suffered injury. Although the ap-pellees insisted they were challenging the underlying state act in its entirety and not the specific impact on the individual district in isolation, the Court found that to be “irrelevant.” The fact that Act 1 affects all Louisiana voters by classifying each of them as a member of a particular congressional district does not mean—even if Act 1 inflicts race-based injury on some Louisiana voters—that every Louisiana voter has standing to challenge Act 1 as a racial classification. Only those citizens able to allege injury “as a direct result of having personally been denied equal treatment,” may bring such a challenge, and citizens who do so carry the burden of proving them standing, as well as their case on the merits. The Court clearly required personal injury on the part of the claimants. Although the Court addressed standing in the context of a Voting Rights Act and Equal Protection challenge, the standing analysis enunciated by the Court is independent of the context and applies equally to the matter before this Court. Merely because LSU’s decisions concerning athletics and its female population affects some .LSU women students, does not mean all LSU women students have standing to bring a challenge to LSU’s actions. Only those women able to allege injury “as a direct result of having personally been denied equal treatment, may bring such a challenge.” In order to. establish standing under Article III, a plaintiff must allege and show that she personally suffered injury. Cramer, supra. If she cannot show personal injury, no Article III case or controversy exists and a Federal Court is powerless to hear that grievance. The individual injury requirement is not met by alleging “that injury has been suffered by other, unidentified members of the class to which [the plaintiff] belong[s] and which she purports to represent.” Worth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975). Accordingly, a named plaintiff in a class action who cannot establish the requisite case or controversy between herself and the defendants cannot seek relief for anyone ... not for herself, and not for any other member of the class. O’Shea, 414 U.S. at 494, 94 S.Ct. at 675. In addition to the need for pérsonal-ized injury, the standing doctrine limits the scope of claims which may be asserted. Although some plaintiffs have established a case or controversy between themselves and the defendant on the basis of denial of effec-five accommodation, as this Court finds below, this does not grant plaintiffs a carte blanche to assert all other claims they might wish and for which they have suffered no “palpable injury.” The Supreme Court, when discussing the relationship between standing and a class action, stated it is not enough that the conduct of which the plaintiff complains will injure someone. The complaining party must also show that she is within that class of persons who will be concretely affected. “Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which [s]he has not been subject. ” Finally, the standing doctrine requires a finding that standing exists as a matter of fact, not merely upon allegation. Even where standing is determined to exist upon allegations, courts are required to ensure at trial that those allegations have sufficient merit to justify continued jurisdiction over the case. “And when a case is proceeded to final judgment after a trial, as this ease has, ‘those facts (if controverted) must be “supported adequately by the evidence adduced at trial” to avoid dismissal on standing grounds.’ ” II. Analysis As is discussed in detail infra, Title IX and its jurisprudence clearly distinguish between, on the one hand, claims for unequal treatment of athletes based on sex [“treatment claims”] and, on the other hand, claims for ineffective accommodation of demands of female and male athletes, ie., equality of opportunity to participate in athletics. This Court has had great difficulty identifying and, it seems, plaintiffs artieulat-ing the injury which forms the basis for plaintiffs’ cause of action. Rather, allegations of a generalized grievance as to the manner in which “women at LSU were treated” have tended to predominate both the filings and the arguments made by plaintiffs. Such generalized allegations do not grant the requisite connexity and personal injury required for standing. This Court must examine the relationship of each plaintiff to LSU’s actions, as well as the allegations and factual basis for the allegations made by each plaintiff, to determine if the requisite personal injury and connexity exists. Within this analysis, two separate and legally distinct factual scenarios exist. A. Treatment All five plaintiffs asserted a claim for unequal treatment of female varsity athletes, including unequal pay to coaches, lesser quality facilities, and other related grievances. An unequal treatment claim presupposes that the claimant was a varsity athlete who was treated unequally based upon her sex. The complaint fails to allege, however, that any plaintiff ever participated in any varsity sport at LSU. As plaintiffs have never participated in varsity athletics at LSU, they can never have suffered injury from any alleged discriminatory action by LSU in its treatment of female varsity athletes vis-a-vis male varsity athletes. Plaintiffs have not alleged any experience of the effect, impact or alleged injury resulting from any of the alleged discriminatory practices within LSU’s existing women’s varsity athletics. Plaintiffs have personally suffered no injury or threatened injury due to LSU’s alleged illegal treatment of its female varsity athletes and, as such, fail the initial prong of the standing inquiry as to their claims for illegal treatment of female varsity athletes. The injury plaintiffs allege, i.e., their inability to participate at the intercollegiate varsity level in their chosen sport at LSU, is arguably the result of LSU’s alleged ineffective accommodation of its female student population, not of LSU’s treatment of its female varsity athletes vis-a-vis its male varsity athletes. Thus, plaintiffs’ claims as to illegal treatment of LSU varsity female athletes fail the second prong of the standing analysis. As noted above, a plaintiff who might have been subjected to injurious conduct of one kind does not possess the necessary stake in litigating conduct of another kind, although similar, to which she has not been subject. Further, a favorable decision by this Court that LSU treats its female varsity athletes in an unequal manner as to its male varsity athletes would not address plaintiffs’ alleged injury, i.e., their inability to participate in intercollegiate varsity athletics at LSU. For this Court to order LSU to treat its intercollegiate varsity female athletes differently would not impact plaintiffs, as they are not varsity athletes nor have plaintiffs convinced this Court plaintiffs will, in fact, be intercollegiate varsity athletes at LSU. Thus, plaintiffs’ claim on the treatment issues fails the third prong of the standing analysis. The Supreme Court in Warth v. Seldin, supra, instructed that even when a plaintiff has suffered his own injury, he must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties. By previous ruling, this Court dismissed plaintiffs’ claims of unequal treatment in violation of Title IX, thus limiting plaintiffs’ claims for declaratory and injunctive relief to those claims that LSU had failed to effectively accommodate plaintiffs’ interests and ability to participate. This ruling remains undisturbed. B. Accommodation One must keep in mind that LSU is not required by Title IX to provide any athletic opportunity for any of its students. However, should LSU choose to provide athletic opportunities for certain of its students, it then must provide equal athletic opportunity for both sexes and not exclude either group from participation because of their sex. LSU has chosen to provide athletic opportunity for its male students. Consequently, LSU must provide equal athletic opportunity for the interests and abilities of its female students and cannot exclude its female students from participation because of their sex. One must never lose sight that the key concepts involved in this challenge are exclusion from participation and equal athletic opportunity. Exclusion, in this instance, requires the existence of an interest to participate and the existence of an ability to participate. Opportunity is the possibility of participation, not the guarantee of participation. Plaintiffs have alleged LSU failed to accommodate its female athletes by providing greater athletic opportunity to its male students than female students at a time when sufficient interest and ability existed within its female population to justify increasing women’s sports opportunity. Trial on the merits of this claim was had in October, 1995. As noted above, this Court previously declined to grant the injunctive relief sought by the original named plaintiffs as to softball. The Pederson plaintiffs did not allege that they had interest and ability to participate in fast pitch softball. After consolidation of the Pederson and Pineda suits, this Court declined to dismiss the Pinedas’ claim as to softball on the argued grounds of a lack of standing. However, defendants continue to raise the question of standing. While defendants challenge plaintiffs’ standing to seek particular remedies, this Court declines to address standing only in terms of the remedy requested. Standing will be determined as a question of whether plaintiffs have the requisite interest to bring a cause of action. The right to bring a cause of action is distinct from the right to obtain a specific remedy. Plaintiffs argue LSU is in violation of Title IX and urge this Court to so declare. Plaintiffs also request specific injunctive relief including the accelerated institution of intercollegiate varsity fast pitch softball and soccer. Whether the plaintiffs have standing to bring their suit is not to be confused with the question of whether plaintiffs are entitled to the equitable relief they seek. In accordance with this Court’s continuing duty to monitor its jurisdictional basis, the question of whether the Pineda and Peder-son plaintiffs have proven the merits of their standing claims is herein addressed, i. Pinedas At trial, Karla and Cindy Pineda were students at LSU and each had eligibility to participate in intercollegiate varsity athletics. They continue to seek to play intercollegiate varsity fast pitch softball and they meet the NCAA eligibility criteria. LSU does not presently field a intercollegiate varsity fast pitch softball team; although LSU has begun implementation of an intercollegiate fast pitch softball program by hiring Cathy Compton as its head softball coach effective July 1, 1995, the process is not complete. LSU asserts that Karla and Cindy Pineda will be given the opportunity to try out for the fast pitch softball team prior to its commencement of intercollegiate competition in the Fall of 1996 should such competition truly begin in the Fall of 1996. The existence of one or two students with interest and ability to participate in sports likely would not constitute a basis for a claim of ineffective accommodation and thus, violation of Title IX. However, the Pinedas also established at trial the existence of sufficient interests and abilities on campus to field a intercollegiate varsity women’s fast pitch softball team. The Pinedas established that sufficient interest and ability existed on the LSU campus to field a successful Division I women’s fast pitch softball team in 1979 and that interest and ability to participate in fast pitch softball has increased since 1979 nationally, regionally, locally and in the Louisiana high schools— the primary feeder schools for LSU. Therefore, this Court finds interest and ability to participate in fast pitch softball has not declined since 1979 when there Was sufficient interest and ability to field a successful Division I team. Yet, LSU provided and provides no opportunity of any kind for its female students to participate in fast pitch softball on any level. The Pinedas have established they individually have the interest and ability to participate in athletics on some level at LSU; they have established sufficient interest and ability exists at LSU to field a Division I fast pitch softball team. The Pinedas have proved the University is providing greater opportunity to participate in sports for males than females and, in particular, LSU is providing opportunity to participate in varsity baseball for males with interest and ability similar to the Pinedas. Finally, plaintiffs have presented evidence that such action has caused them personal injury. In short, the Pinedas have presented evidence sufficient to establish individualized injury and standing to bring a private right of action against LSU pursuant to Title IX. Defendants argue that the Pinedas cannot make the cut to participate in fast pitch softball at the Division I level' and therefore, they lack standing. This argument has no merit, for it presupposes that only those athletes who can prove they would get a position on a team have standing to claim they were discriminated against on the basis of their sex in being denied the opportunity to compete. Such an argument misconstrues the nature of both Standing and Title IX and grants control over standing to the subjective decisions of the university. Moreover, the question cannot be proven until the time team positions are actually offered: if determined to field a team in 1996, LSU should accept the best athletes available to it at that time. Whether the Pinedas are in that group depends, in part, upon the level of competition among the athletes who desire to get on the team and the subjective evaluations made by the university. Title IX’s guarantee of equal opportunity is not granted only to the best athletes in the country; it is granted to all athletes who have an interest in participating in athletics as well as an ability to do so. The Pinedas have proven they have both. Whether LSU decides to eventually offer them positions on a team is not determinative of the issue. LSU provided no organized athletic participation opportunity for those with the interest and skill of the Pinedas at any level, at a time when LSU provided greater athletic opportunity to its male than female students and at a time when male students with similar interest and skill were provided the opportunity to participate in baseball at the intercollegiate varsity Division I level. ii. Pederson Plaintiffs As noted above, the Pederson plaintiffs, asserted claims that LSU was in violation of Title IX by ineffectively accommodating their interest in playing intercollegiate varsity soccer and requested particularized injunctive relief keyed to their particular sport of choice. Samantha Clark and Lisa Ollar were ineligible to compete in intercollegiate athletics after May, 1995 under the regulations of the National Collegiate Athletic Association. As they became ineligible to compete during the course of the litigation, the particularized equitable relief requested vis-a-vis soccer no longer granted any remedy for Clark and Ollar. However, with respect to monetary damages, Ollar and Clark also argue LSU was in violation of Title IX during their period of athletic eligibility and that LSU’s alleged violation produced individual personalized injury to them. Ms. Pederson retains NCAA eligibility and was offered the opportunity to try out for the varsity soccer team in 1994, but was unable to do so because of knee surgery. She tried out in 1995, practiced with the team, was issued a uniform, and was included in the team picture. She never played with the team, rather, she quit due to financial problems and contemporaneously was cut as lacking the requisite skill. The evidence at trial established LSU has no male varsity Division I soccer team. Further, LSU provides the same opportunity for soccer participation for its male and female students — albeit limited support and opportunity — at the club level. Evidence established LSU has in no way excluded members of either sex from the opportunity to participate in soccer at the club level. Further, this Court finds the Pederson plaintiffs did not establish the existence of the requisite ability to play soccer above the club level. Consequently, the Pederson plaintiffs did not establish they had been excluded from athletic participation at LSU because of their sex; rather the evidence proved they were included in the soccer participation offered at LSU in' the same manner as male students. Further, the evidence established the Pederson plaintiffs had not been, as alleged by plaintiffs', excluded from intercollegiate varsity play as none had the requisite skill to play soccer at the intercollegiate varsity level. Although LSU provided greater athletic opportunity for its male than female students during this time, none of the Pederson plaintiffs alleged any interest or ability to participate in any sport other than soccer. All three participated in soccer at the club level — none had the'requisite ability to participate above that level. Therefore, LSU’s alleged violation of Title IX by not providing additional athletic opportunity to its female students in no way personally impacted these three plaintiffs. LSU’s failure to provide greater opportunity could not have impacted the Pederson plaintiffs as they could not, and did not desire to, participate in other sports at LSU and could not have participated above the club level in soccer. Therefore, each lacks the requisite personal injury caused by the alleged violation of Title IX by LSU. Moreover, the particularized remedy sought as to soccer would not inure to Ollar’s or Clark’s benefit as neither is eligible under NCAA criteria to participate. As LSU’s alleged violation of Title IX has not had the required personal impact on the Pederson plaintiffs, the Pederson plaintiffs do not have standing to bring claims for equitable or declaratory relief in this forum for violation of Title IX and as such their claims are DISMISSED WITH PREJUDICE. TITLE IK' I. Law In 1972 Congress enacted the prohibition against discrimination on the basis of sex by universities securing federal funds. Section 901(a) of Title IX of the Education Amendments of 1972 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 capítol federal financial assistance ... 20 U.S.C.A § 1681(a) (1990). After establishing that sex discrimination is prohibited, Title IX then proceeds to clarify that efforts to remedy historical sex discrimination shall not include preferential or disparate treatment of one sex over another, with one specific caveat: statistical evidence of disparate treatment may be considered in evaluating compliance with Title IX. Section 1681(a) shall not be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which makes this with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with.the total number or percentage of persons of that sex in any community, State, section, or other area: Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex. 20 U.S.C.A. § 1681(b). Section 844 of the Education Amendments of 1974, further provides that: The secretary of [HEW] shall prepare and' publish ... proposed regulations implementing the provisions of Title IX of the Education Amendments of 1972 relating to the prohibition of sex discrimination in federally assisted education programs which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular' sports. In 1975, the secretary of the Department of Health, Education and Welfare (“HEW”) promulgated regulations to implement Title IX, which specifically encompassed college athletics (hereinafter referred to as “Regulations”). The Title IX Regulations were signed by President Ford on May 27, 1975 and submitted to Congress for review pursuant to § 431(d)(1) of the General Education Provisions Act (“GEPA”). After hearings, Congress did not disapprove the Regulations within the 45 days allowed under GEPA. The Regulations became effective on July 21, 1975, and were codified at 45 C.F.R. § 86, et seq. The Regulations provided for a three-year transition period which expired on July 21,1978. Section 86.41 of the regulations which specifically addresses athletic programs in educational institutions receiving money from the federal government, defines the prohibition more completely than the statute, describes the circumstances under which separate teams will be allowed, grants educational institutions an adjustment period within which to come into compliance and, most important for purposes of this discussion, specifies that the prohibition against sex discrimination means federal aid recipients are required to provide equal athletic opportunity to members of both sexes. Determination of whether this latter requirement is being met shall be made, according to the regulation, by considering ten specific factors, as well as. “other” factors. These factors include nine measures comparing how men’s teams and women’s teams are treated by the university — the so-called “treatment” issues. The tenth factor identified in § 86.41 focuses the analysis on substantive equality of opportunity, i.e., “whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” 45 C.F.R. § 86.41(c)(1). In 1979, HEW’s Office of Civil Rights (hereinafter “OCR”) added another layer to the administrative amalgamation. After notice and extensive comment, a “Policy Interpretation” became effective on December 11, 1979. The Policy Interpretation contains a more detailed measure of what OCR determined is required for equal athletic opportunity under Title IX. According to the Policy Interpretation, Title IX can be violated in three ways: (a) where the policies of an institution are discriminatory in language or effect; or (b) where disparities of a substantial and unjustified nature exist in the benefits, treatments, services or opportunities afforded male and female athletes in the institution’s program as a whole; or (c) where disparities exist in individual segments of the program with respect to benefits, treatments, services or opportunities which are substantial enough in and of themselves to deny equality of athletic opportunity. Additionally, the Policy Interpretation recognizes three areas in which compliance can be assessed: (a) Athletic Financial Assistance (Scholarships) ; (b) Equivalence in Other Athletic Benefits and opportunities (so-called “treatment” issues); and (c) Effective Accommodation of Students’ Interests and Abilities. The Policy Interpretation was effective on its face December 11,1979. However, it was never approved by the President. The Policy Interpretation does not have the binding effect of those rules, regulations or orders authorized by 20 U.S.C. § 1682. Title IX, as previously interpreted, was dealt a significant blow when, in 1984, the Supreme Court in Grove City College v. Bell, 465 U.S. 555, 574, 104 S.Ct. 1211, 1221, 79 L.Ed.2d 516 (1984) held Title IX was “program specific,” so that it applied only to those programs that were actually receiving federal funds. The Court reasoned that Title IX did not reach the entire university and, thus, did not reach an athletic program which did not, itself, receive federal assistance. Few athletic departments were impacted by Title IX, as interpreted by Grove City College, as few were the direct recipients of federal funds. Congress responded to the Grove City College decision by passing the Civil Rights Restoration Act of 1987, codified at 20 U.S.C. § 1987 (1988) (“Restoration Act”), wherein the institution-wide application of Title IX was clarified. The Restoration Act provided that if an educational institution received federal funds, the institution as a whole must comply with Title IX’s provisions. There is little doubt that one of the primary reasons Congress passed the Restoration Act was to make it applicable to athletic departments. The judicial branch, by contrast with the executive, has had relatively little involvement with interpreting Title IX’s statutory and regulatory provisions. At this point, neither Court to whom this Court looks for binding guidance has yet addressed the issues under Title IX arising herein. The only case in which the Supreme Court has addressed Title IX since 1984 held that the statute does imply a private right of action. The Fifth Circuit has addressed Title IX only in the context of determining that it does not create an avenue separate from Title VII for asserting employment discrimination claims. Within the broader scope of federal jurisprudence throughout the country, only a handful of cases have interpreted Title IX, and each of them is factually distinguishable from the ease at hand. This Court has found precious little guidance within the available jurisprudence to aid in understanding the analytical framework within which to address the claims in this case. As noted above, this case involves female students at Louisiana State University who have never participated in varsity athletics and who want LSU to create varsity athletic opportunity for them. In review, the present state of the law of Title IX includes a statute containing very broad language and few specifics, regulations issued by several different agencies, a Policy Interpretation adopted by OCR but never approved by the President or Congress, and very little jurisprudence, none of which clari-fíes the proper analysis of claims brought thereunder. II. Analysis In the absence of binding jurisprudence or a standard of review provided within the statute, this Court must derive the proper analytical framework from the available sources. The statute itself contains a general prohibition against sex discrimination, which language does not further the analysis greatly. The regulations promulgated pursuant to 20 U.S.C. § 1681, et seq. do provide more guidance, with pertinent language mandating equal athletic opportunity for members of both sexes. More particularly, the regulations identify effective accommodation of interests and abilities of both sexes as the primary factor to be considered in evaluating whether an institution is granting equal opportunities to participate in athletics. The statute and the regulations, however, do not provide any additional aid in deriving an analytical framework under Title IX. As noted above, OCR has also issued a Policy Interpretation. This interpretation is helpful in identifying issues which arise under Title IX and establishing an analytical framework for assessing claims arising under the Title. The Policy Interpretation has not been approved by either the President or Congress, however, and is also susceptible, in part, to an interpretation distinctly at odds with the statutory language. Despite these drawbacks, the Policy Interpretation definitely has a role to play in ascertaining the proper analysis of compliance with Title IX. The Policy Interpretation inquiry into effective accommodation keys to whether the (a) selection of sports and (b) the level of competition including the opportunity for team competition effectively accommodate the (e) interests and abilities of members of both sexes. The selection of sports and determination of interests and abilities factors do not present difficulties in the analysis. It is the question of how to evaluate equality of opportunity in levels of competition which provides a significant sticking point in the Policy Interpretation’s framework. The OCR assesses whether males and females are allowed to compete at levels reflecting their interests and abilities by evaluating both the (a) opportunity for individuals of each sex to participate in intercollegiate competition [“opportunity”] and (b) for athletes of each sex to have competitive team schedules which equally reflect their abilities [“competition”]. The Policy Interpretation proceeds to provide standards for determining whether these two requirements are met. First, as to the requirement that both sexes be allowed the “opportunity” to participate in accordance with their interests, compliance will be assessed in any one of the following ways: (1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) "Where members of one sex have been and are under represented 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 members of one sex are underrepresented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion. ... whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. Assessment of compliance with the second goal, requiring equality of “competition” for each sex reflecting their abilities, focuses on the following: (1) Whether the competitive schedules for men and women’s teams on a program-wide basis affords proportionately similar numbers of male and female athletes equivalently advanced competition opportunities; or (2) Whether the institution can demonstrate a history and continuing practice of upgrading the competitive opportunities available to the historically disadvantaged sex as warranted by developing abilities among the athletes of that sex. In addressing the question of whether LSU effectively accommodated women’s interest and ability to participate in sports by providing equal levels of competition for men and women, both plaintiffs and defendants argue, primarily, that the first prong of the “opportunity” factor and the first prong of the “competition” factor — both of which require the Department to assess proportionality between the sexes — should be acknowledged as a “safe harbor” or determinative of the overall issue, for educational institutions. In other words, plaintiffs and defendants desire this Court to find that, so long as males and females are represented in athletics in the same proportion as found in the general student population and are given numerically proportionate opportunity to participate in advanced competition, the university should be found to be in compliance with Title IX and, if numerical proportionality is not found, the institute should be found to be in violation of Title IX. This Court disagrees with either proposition and the analysis leading to such a result, and denies most emphatically so to hold. In arguing that sufficient opportunity will be granted by achieving substantially similar numerical proportionality between the sexes among athletes as is found in the general student population, defendants rely upon specific language from jurisprudence which supports their position. This Court is not unaware of the Roberts, Cohen and Homer holdings and, in fact, the explicit language within Roberts and Cohen, that one “may stay on the sunny side of Title IX simply by maintaining gender parity between its student body and its athletic lineup.” The Fifth Circuit has not spoken to this issue and this Court is not bound by Roberts, Cohen and Horner. Further, this Court finds those decisions erroneous in this regard. To accept the interpretation in Roberts, Cohen and Homer, and the argument made by defendants, one must assume that interest and ability to participate in sports is equal as between all men and women on all campuses. For instance, if a university has 50% female students and 50% male students, the assumption, under this argument must follow that the same percentage of its male population as its female population has the ability to participate and the interest or desire to participate in sports at the same competitive level. A review of Roberts, Cohen and Hor-ner finds no evidence to prove or disprove this assumption; nor has LSU or the plaintiffs in this case presented any evidence to support this assumption. Without some basis for such a pivotal assumption, this Court is loathe to join others in creating the “safe harbor” or dispositive assumption for which defendants and plaintiffs argue. Rather, it seems much more logical that interest in participation and levels of ability to participate as percentages of the male and female populations will vary from campus to campus and region to region and will change with time. To assume, and thereby mandate, an unsupported and static determination of interest and ability as the cornerstone of the analysis can lead to unjust results. The Cohen, Roberts and Homer decisions, in defining equal numerical percentages or “proportionality” as a “safe harbor,” strongly rely on each other and on a stated administrative deference. This Court is not unaware of the necessity to grant great deference to an administrative agency and in particular an administrative agency that was specifically required by Congress to promulgate interpretative regulations. However, the jurisprudential emphasis on numerical “proportionality” is not found within the statute or the regulations; rather, it is inferred from language in the Policy Interpretation and ignores other language within the Policy Interpretation and the statute which argues against such an inference. Title IX does not mandate equal numbers of participants. Rather, it prohibits exclusion based on sex and requires equal opportunity to participate for both sexes. As appears in the Policy Interpretation, inherent in this prohibition and mandate is knowledge of the desire to participate, the ability to participate and the level of competition involved. Ceasing the inquiry at the point of numerical proportionality does not comport with the mandate of the statute. Section 1681(a) of Title IX specifically provides the mandate of Title IX shall not be interpreted to require preferential or disparate treatment to members of one sex based on proportionality. Rather, those percentages should be considered as “tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.” Consequently, the clear language of the statute prohibits the interpretation of numerical proportionality argued by both defendants and plaintiffs. Therefore, to the extent that the Policy Interpretation operates to allow a “safe harbor” of numerical proportionality of competition, this Court rejects that reading as well as the concept of the “safe harbor.” While the safe harbor concept has the virtue of being simplicity itself, this Court will not join in assuming that athletic directors in this country are incapable of meeting the burden of Title IX and its regulations which incorporates a knowledge regarding then-student body, effective analysis of and meeting students’ needs, and filling those needs in a non-discriminatory fashion. Rather, this Court finds the proper reading of the Policy Interpretation — and the proper analysis under effective accommodation — allows for consideration of all factors listed therein in determining whether the university has provided equal opportunity and levels of competition for males and females. The Policy Interpretation, being crafted by an agency which has a great deal of knowledge and understanding of the particulars of assessing university athletics, provides a helpful guide to a thoughtful analysis of the mandate of Title IX. However, to the extent that the Policy Interpretation suggests by use of the disjunctive “or” that a mere reliance upon, substantial numerical proportionality between the sexes suffices, it is contrary to the explicit language in 20 U.S.C. § 1681(b) and will not be followed herein. With this exception, the bulk of the analysis of compliance described in the Policy Interpretation will be adopted in this context. III. Application to the Instant Facts The Pineda plaintiffs allege that LSU discriminated against them by not effectively accommodating their interest and ability to participate in intercollegiate varsity fast pitch softball. Under the statute, regulation, and Policy Interpretation, analysis of plaintiffs’ claim proceeds as follows. In determining whether LSU has subjected its female students to discrimination based upon sex, this Court will look to whether its policies are discriminatory in language or effect, whether substantial and unjustified disparities exist within the program as a whole between opportunities afforded male and female students, or whether substantial disparities exist in individual segments between opportunities afforded male and female students such as to deny equal athletic opportunity. This determination will be based upon an evaluation of whether LSU has effectively accommodated its students’ interests and abilities. As noted above, effective accommodation of interests and abilities requires the selection of sports appropriate to the student body’s interests and that the level of competition reflect the ability of athletes available to participate. Clearly, the pivotal element of the analysis in this case is the question of effective accommodation of interests and abilities. Of primary importance to the analysis is the requirement that LSU know what the interests and abilities of its female students are. Without that knowledge, neither LSU nor this Court can evaluate with true certainty whether LSU is effectively accommodating those interests and abilities in a sex-neutral way. After hearing all the evidence presented, this Court finds LSU presented no credible evidence to establish what the interests and abilities of its student population are or have ever been. LSU has no method, discriminatory or otherwise, by which this determination can be made. LSU is and has been ignorant of the interests and abilities of its student population. Without any basis for determining whether LSU’s athletics program is accommodating the actual interests and abilities found on campus, this Court is relegated to ruling on the question of discrimination based upon indirect evidence such as raw data regarding the student population and testimony of the athletic program’s director and officers. Plaintiffs established that LSU’s student population during the relevant period was approximately 51% male and 49% female and LSU’s athletic participation for the same period was approximately 71% male and 29% female. Throughout the relevant period, LSU fielded a men’s baseball team. Plaintiffs and LSU provided considerable evidence at trial that fast pitch softball, traditionally played by women, is the closest equivalent sport to baseball, traditionally played by men. Plaintiffs established that sufficient interest and ability existed in 1979 for LSU to field a successful Division I varsity fast pitch softball team; in 1983 LSU disbanded that team and has not produced credible evidence of the reason for that decision. Plaintiffs established that interest and participation in fast pitch softball has not decreased since 1979; rather, it has increased nationally, regionally, locally and within the Louisiana high schools which act as primary feeders for LSU. Plaintiffs further established that, on the intercollegiate level, varsity fast pitch softball teams have increased in number since 1979. Therefore, this Court finds that the interest and ability within the LSU student population to participate in women’s athletics — fast pitch softball, in particular— has not decreased since 1979 rather, should have increased. Additionally, plaintiffs presented credible evidence that they have an interest in playing intercollegiate varsity fast pitch softball as well as substantial ability to play fast pitch softball. LSU presented some evidence that sufficient interest and ability to participate in fast pitch softball at the Division I intercollegiate varsity level is not now nor since 1993 has been found on the LSU campus. However, this Court did not find the evidence presented by LSU to be credible, rather found such interest and ability did exist on LSU’s campus. Even were that the case, however, OCR specifically recognizes that compliance with Title IX can include competition on levels other than the intercollegiate level, i.e., the club or intramural level. Plaintiffs established that intercollegiate play is provided for male students with similar interests and abilities by way of the varsity baseball team. The evidence is uncontro-verted that, during the relevant time period, LSU provided absolutely no opportunities for women to compete in fast pitch softball at any level whatsoever. By not fielding any women’s fast pitch softball team for any level of competition, LSU has not been accommodating the interests' and abilities of Plaintiffs individually and at least one segment of its female student athlete population. This finding, together with the large disproportionality between its male and female athlete populations compared to the general student body,, and testimony presented by the LSU’s Athletics Director, suggest that sex discrimination accounts for the discrepancies. Under the Policy Interpretation, an educational institution which is proved not to be effectively accommodating the interests and abilities of the underrepresented sex but is able to demonstrate a history and continuing practice of program expansion demonstrably responsive to the developing interests and abilities of the underrepresented sex may still be found to be in compliance with Title IX. Assuming — without addressing the wisdom of allowing a university to avoid a finding of non-compliance when, as a matter of fact, non-compliance has been proved— that this element of the analysis properly is incorporated herein, this Court finds that LSU has not provided credible evidence of such a history and practice. Quite the contrary, this Court finds that historically LSU has demonstrated a practice not to expand women’s athletics at the university before it became absolutely necessary to do so. Prior to the decisions made in 1993, no new women’s teams had been added for 14 years. The last action LSU took to change the number of women’s sports on its campus prior to 1993 was to eliminate a successful Division I intercollegiate fast pitch softball team, with no credible reason given for such a move. LSU argues it has added two additional intercollegiate varsity women’s sports, thereby demonstrating a history and pattern of expanding women’s athletics. LSU’s argument does not win the day. First, it has not yet added the two sports. In 1993, LSU made a verbal commitment to add a women’s intercollegiate varsity fast pitch softball team and an intercollegiate varsity women’s soccer team. However, this Court finds that LSU has not yet lived up to its verbal commitment. Softball is not yet in competition, nor is this Court convinced it will be in full and effective competition in 1996, as LSU claims; soccer is operating under considerable handicaps which handicaps demonstrate LSU’s inadequate commitment to the team. Secondly, this Court finds the evidence shows that LSU’s decision to add two intercollegiate varsity women’s sports was neither for the purpose of encouraging women’s athletics, nor for responding to an increasing interest and ability in women’s athletics on campus. In adding the two teams, LSU chose merely to follow the decisions made by the Southeastern Conference concerning whether to add additional women’s teams, the time table for adding the new teams, and the actual institution of additional women’s sports. Not only did LSU fail to demonstrate a history and practice of expanding women’s athletics on campus, but the plaintiffs proved that LSU’s history and practi