Friday, September 28, 2007

Court Won't Enjoin Rowing Cut at Cincinnati

A federal district court in Ohio recently denied the University of Cincinnati women's rowing team's motion to enjoin the university from cutting their team.

To recap, Cincinnati rowers complained to OCR a year ago that the University was not providing women's athletics with equivalent facilities and equipment. Much of this dispute focused on the University's failure to make progress on plans to build a boathouse. Soon thereafter, the University announced that it was cutting women's rowing and adding women's lacrosse.

The rowers filed a lawsuit in federal court, challenging the University's decision as a violation of Title IX and seeking a preliminary injunction. Specifically, they alleged that the cutting a viable women's team was a per se violation of the third compliance prong ("effective accommodation" of female students' "interests and abilities" in varsity athletics). The University argued that it did not need to comply with prong three because it complied with prong one (proportionality) instead.

The rowers had argued that the percentage of female athletes (43%) was not in proportion to the percentage of female students (47%). But as the court pointed out, OCR guidelines instruct that proportionality is determined by comparing the percentage of opportunities for female athletes to the percentage of female students. Because some individual female athletes at Cincinnati compete in more than one sport, the percentage of opportunities for female athletes is higher (49%) than the percentage of female athletes (43%). Comparing the percentage of opportunities for female athletes (49%) to the percentage of female students (47%), Cincinnati clearly satisfies prong one.

Next, the court determined that the rowers' were unlikely to succeed on the merits it their argument that the University's decision to cut their sport was made in retaliation for their initial complaint to OCR about the lack of equipment and facilities. The only direct evidence of retaliation was an email sent by the former athletic director to the University president that evidenced a "retaliatory spirit." However, it was this athletic director's successor who made the decision to cut rowing.

While the rowers' seemingly valid complaint about the lack of boathouse provided the university with a motive to cut the team rather than face a court order to build a boathouse, the court determined that there was substantial evidence to the contrary. Specifically, the university continued to support the rowing team after the complaint was filed, expending money on uniforms and equipment, as well as performing site evaluations for a potential boathouse and even purchasing an option on one potential site. The court reasoned that if the university was willing to do this in the absence of a court order, it does not seem likely that the University cut the team to avoid having these responsibilities imposed by a court order.

Though the rowers have failed to obtain a preliminary injunction, their underlying case is still pending in the district court. The proportionality argument seems unlikely to prevail, but I wonder if the rowers could convince a jury that the University's decision was retaliatory. It is certainly plausible that the former AD's retaliatory email represents the spirit of the athletic department, including the successor AD who made the decision to cut the team. The question is whether the rowers could establish this as a matter of fact.

The decision is: Miller v. University of Cincinnati, 2007 WL 2783674 (S.D. Ohio, Sept. 20, 2007)


Anonymous said...

If the rowing team was kept, would that then result in female opportunities being too high for prong one?

EBuz said...

I don't think that keeping rowing and adding lacrosse would have jeopardized Cincinnati's prong one compliance. In that scenario, the number of female athletes would have increased from 274 to 299. Holding constant the number of male athletes at 286, the percentage of female athletic opportunities would have gone from 49% to 51%. The percentage of female students is 47%, so Cincinnati's proportionality score would have gone from +2 to +4. There's no hard-and-fast rule, but courts & OCR seem likely to accept a proportionality score of plus-or-minus 5 percentage points. So I think Cincinnati would have been OK with both rowing and lacrosse.