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Update: Attorney findings prior to athletics cuts deemed confidential

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UND retained lawyers in the weeks prior to cutting the women's hockey and men's and women's swimming and diving programs, but their findings will remain confidential.

UND paid the Baker Donelson law firm $16,905, but declined to release the firm's findings in an open record request by the Herald.

UND cited North Dakota Century Code 44-04-19-1(6) as the reason why it doesn't have to disclose the findings.

That statute indicates that UND was preparing for a lawsuit.

It states: "Attorney work product means any document or record that: (a) Was prepared by an attorney representing a public entity or prepared at such an attorney's express direction; (b) Reflects a mental impression, conclusion, litigation strategy, or legal theory of that attorney or the entity; and (c) Was prepared exclusively for civil or criminal litigation, for adversarial administrative proceedings, or in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings."

UND announced the cutting of women's hockey and men's and women's swimming and diving on March 29 as part of campuswide budget cuts to address an anticipated decline in funding from the state. UND President Mark Kennedy asked the athletic department to cut $1.3 million.

The total budgets for the UND women's hockey and men's and women's swimming and diving teams are estimated at about $2.9 million, but many of the scholarships will have to be re-dedicated to other sports to stay Title IX compliant.

The Baker Donelson lawyers counseled UND on ways to defend against potential lawsuits.

Among the recommendations was to re-populate rosters—on both men's and women's teams—with players who started the season with the team but left.

Men's basketball player Solomon Rolls-Tyson and women's basketball players Kanani Asuncion and Holly Johnson, who had been removed from team's rosters during the middle of the season, have been added again.

Roster sizes are part of Title IX compliance.

Kennedy responds to 'boutique sport' comment

In a conversation with a player's parent, Kennedy called women's hockey a "boutique sport,"' which caused an outcry among some in the women's hockey community, including U.S. Olympians Jocelyne and Monique Lamoureux.

In an e-mail, UND spokesperson Peter Johnson responded: "The quote doesn't capture the full context of the conversation referenced, which is that there is no good way, given the current fiscal realities, to sustain the nearly $2 million annual deficit in the women's hockey program."

Johnson declined to say which parent Kennedy was talking to.

"It was a private conversation," Johnson said.

Brad Elliott Schlossman

Schlossman is in his 12th year covering college hockey for the Herald. In 2016, he was named the top beat writer in the country by the Associated Press Sports Editors. He has voted in the national college hockey poll since 2007 and has served as a member of the Hobey Baker and Patty Kazmaier Award committees.

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