The Sacramento Bee reports that three female athletes--two field hockey players and one who wrestles and plays rugby--have sued UC Davis to challenge its distribution of athletic opportunities and scholarships.
Davis's proportionality score is very close to the generally-accepted "within 5%" benchmark for compliance with prong one: they have a student population that is 55.5% female and they offer 50.25% of athletic opportunities to women. Also, Davis reports that 50.47% of its athletic scholarships go female athletes, which complies with the requirement that percentage of scholarship dollars for women must be within 1% of the percentage of female athletes. It appears that attorneys are arguing that a ~5% disparity in participation opportunities does not amount to substantial compliance. All three athletes play on club teams that want to compete as varsity. So they must be claiming that in light of the proportionality disparity, the university's failure to elevate them to varsity violates all three compliance prongs.
The article also notes that the wrestler-plaintiff already has a pending lawsuit against UC Davis challenging the athletic director's decision to dismiss three female wrestlers from the team. You may recall that earlier this year, UC Davis settled a lawsuit by the wrestling coach, who claimed he was fired in retaliation for objecting to the AD's decision. It was reported then that the female wrestlers complained unsuccessfully to OCR, which found that they did not follow proper procedures in petitioning for a women's wrestling team of their own and that such a team lacked potential participants and prospects for extramural competition.
If this is all that OCR said, I can see why one of the disappointed wrestlers is now bringing a lawsuit. OCR's decision only addresses why UC Davis did not have to create a separate women's wrestling team, not whether it was proper to dismiss female wrestlers from the existing team. As the 4th Circuit held in Mercer v. Duke University, you don't have to let women play contact sports with men, but if you choose to, you can't discriminate against them on the basis of sex.
For a prior post noting the emergence of women's wrestling, see here.
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6 comments:
I took a look at the most recent EADA report at the OPE website. I ran some quick calculations and came up with this:
Women are 56% of the FTE students and 50% of the duplicated athletes. For exact proportionality, you would need 505 female athletic opportunities, UCD has 401. So you need to add 104 female athletic opportunities.
Is 104 withing "substantial proportionality"? UCD has 12 womens teams, so the average female team size is 33. 104 is greater than 33, so that rules out Prong One compliance. Not enough info for Prong 2 or 3 analysis.
Also, there is no generally accepted 5% rule for Prong One. Those were just the terms accepted by the parties in the CAL-NOW lawsuit. Prong One is a case by case analysis and 1996 OCR guidance says to look at (1)interest, (2)ability, and (3)competition. Also, compare the number of underrepresented athletes to the average underrepresented sex team size as a point of reference.
No 5% rule. Percentages don't work in I&A because they result in drastic differences between large and small programs. Case by case factual analysis must be used.
I agree, case by case analysis is appropriate and necessary. And you're right that the case looks stronger when you convert those percentages to absolute figures.
My only observation about this case is that compared to other cases that have gone to court, this proportionality "score" is rather low. As you correctly point out, there is no "5% rule." But courts appear to use 5% as a benchmark, as evidenced by the fact that no court has ever flunked a school that was was within 5%.
I'll be very interested to see how the parties approach the substantial proportionality issue in their briefs.
This is in the 9th Circuit, so I would certainly cite Neal and the express deference the Court gave to the 1996 OCR clarification. That letter has the viable team/average team size method, which should control over any arguments about percentages.
No matter what, I see this one going to the 9th Circuit.
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