Today Judge Stefan Underhill granted Quinnipiac University volleyball players an injunction that will allow the team to exist through the 2010-11 season. In reaching this decision, the judge determined that Quinnipiac's decision to terminate the volleyball team violated Title IX because it resulted in inequitable number of athletic opportunities for women. Quinnipiac argued in its defense that it satisfied the proportionality test (offering the same percentage of athletic opportunities to women as matches their representation in the student body) even after cutting volleyball, in part because of Quinnipiac's addition of 30 additional athletic opportunities in the sport of competitive cheer, brought the school into proportionality.
But today, Judge Underhill agreed with the plaintiffs that these opportunities should not have been counted, since competitive cheer is sufficiently different from other varsity athletic opportunities at Quinnipiac. The biggest difference is that the competitive cheer team does not have a schedule that "reflects varsity abilities" -- as demonstrated by comparison to other Quinnipiac teams. No other varsity team at Quinnipiac competes predominantly against other school's club teams and non-scholastic teams, as the competitive cheer team does. No other varsity team competed under different sets of rules, depending on the opponent. All other varsity teams had to qualify for a championship via a progressive playoff, while the national championship in which Quinnipiac cheer competed (NCA Nationals) was open to all squads -- including sideline squads whose only competition for the year was Nationals. No other varsity team was evaluated, in part, by a nonathletic factor such as the 45 second "spirit" segment at Nationals, in which teams are judged by crowd reaction and use of props.
The judge's ruling does not foreclose that changes in cheer over time could lead to a different result in the future. However, the court's reasoning does call into question any school that is currently relying on competitive cheer to demonstrate compliance with Title IX. That is, the court's reasoning applies as well to other varsity cheerleading schools (Maryland, Oregon, Baylor, and a couple of others) as it does to Quinnipiac, should those schools' reject a women's club team's petition for varsity status, or, like Quinnipiac, decide to cut a viable women's team.
After adjusting Quinnipiac's proportionality calculation to exclude 30 opportunities in competitive cheer, as well as 11 opportunities in women's track (who the judge said should not have been counted because they were injured, and/or red-shirted), the judge calculated a 3.62 percentage difference between the percentage of athletic opportunities for women (58.25) and the percentage of women in the student body (61.87). The judge then determined that this difference was not "substantial proportionality" necessary for compliance with prong 1. This aspect of the decision is highly significant, as it is, to my knowledge, the lowest percentage that has been deemed outside the realm of substantial proportionality, and it dispels the myth-rumor that anything within 5 percentage points is OK. The judge reasoned that 3.62 percentage points actually amounts to 38 female athletes -- more than the size of any of Quinnipiac's existing women's teams. In that context, 3.62 is not substantial proportionality.
Overall, the 95-page decision was a win for the volleyball team (who gets to play another year) and a win for Title IX, because it protects against the possible manipulation of gender equity statistics by labeling as sport existing women's noncompetitive activities. The judge also expressed skepticism about Quinnipiac's triple counting of women's opportunities in cross country and and indoor and outdoor track, given the track team's status as a "mere adjunct" of cross country (though ultimately found insufficient evidence to discount Quinnipiac's figures any further on these grounds). But this aspect of the decision, like the decision overall, puts schools on notice that athletic opportunities for women must be actual and not illusory.