Last August we blogged about the district court decision in the U.C. Davis case, in which the court found that the university did not comply with Title IX's requirement of equitable opportunity under either prong of the three-prong test during the time that the plaintiffs were students. A trial on damages was set to occur a month from now, but yesterday the parties settled rather than continue to litigate the question of how Davis would make it up to the prevailing plaintiffs. The parties agreed that Davis will pay plaintiffs' attorneys $1.35 million to cover the costs of litigation.
The plaintiffs, who wanted to wrestle for Davis, but were cut from the men's team and did not have a team of their own, are reportedly pleased with the final outcome of this case, which produced favorable judicial precedent that a university is not in compliance with prong two if it cuts women's opportunities without replacing them.
Showing posts with label UC Davis. Show all posts
Showing posts with label UC Davis. Show all posts
Friday, February 17, 2012
Thursday, August 04, 2011
District Court Reaches Decision in UC Davis Title IX Case
U.S. District Court judge Frank Damrell issued a 147-page opinion yesterday in the near-decade-long litigation between the University of California at Davis and three female wrestlers who were cut from the men's wrestling team when the coach instituted a try-out policy in 2001. So far I've seen headlines calling it a "split decision," a "dismissal" of the lawsuit against Davis officials, a ruling that Davis "did not discriminate" and a "Title IX victory" against U.C. Davis. As these seemingly-conflicting sentiments suggest, the decision is nuanced and defies reduction to a clear and simple headline. I think "split decision" is the most accurate characterization.
What made the decision, at least in part, a "Title IX victory"? Ultimately, the judge decided that while the plaintiffs were students at U.C. Davis, the university did not comply with the three-prong test used to measure equity in the athletic opportunities provided to each sex. Davis stipulated that during the time the plaintiffs were students, the university did not offer opportunities proportionate to the percentage of women in undergraduate population (prong one) and that there was unmet interest and ability among the underrepresented sex (prong three). But, Davis argued, it satisfied prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, which is prong two of the three-part test. In large part, the university's prong two defense rested on the fact that it had added three women's sports in 1996. Typically, adding a women's team gets a university two-to three years of credit for "continuing" program expansion, and the court seemed inclined to agree that adding three teams at once should count for a longer safe harbor. However, the court reasoned that even if Davis got extra credit for adding multiple teams in 1996, it still eliminated over 30 athletic opportunities for women during the relevant time frame disqualified them for compliance with "continuous" program expansion. In particular, the university eliminated J.V. teams in women's water polo and lacrosse in 2000, and while the court noted that this decision was not discriminatory or itself a violation -- even the coaches of those sports supported the decision to turn the J.V. teams into club teams -- the court determined that the "failure to replace" those opportunities at the same time put prong two compliance out of reach.
Yet despite ruling that U.C. Davis did not comply with Title IX at the time it eliminated opportunities for female wrestlers, much of the court's decision is as pro-Davis as some of the headlines suggest. For one thing, even in its Title IX analysis, the court is careful to commend Davis for its history of program expansion, which included a rigorous self-analysis of compliance that resulted in the university's decision to add women's teams during a period of time in the 1980s when Title IX enforcement was lax and many other universities ignored the law. Additionally, the court emphasized that cutting the women from the wrestling team did not count against the university for purposes of prong two, since they were not cut because of sex but for "normal fluctuations" based on talent and skill.
Moreover, the court dismissed the plaintiffs' other Title IX arguments, such as that the university was required to provide a female wrestling team to satisfy the unmet interest and ability, after determining that at the time there was not a reasonable expectation for competition for such a team. And it dismissed all of the plaintiffs' Equal Protection claims which were directed at individual university officials. According to the court, the female wrestlers had no constitutional right to be members of the men's wrestling team, only, at most to an equal opportunity to try out for the team. A decision by the head coach that the women had to qualify based on talent is not discrimination on the basis of sex, nor is it a decision that can be attributed to the athletic director, associate athletic director, or other individual defendants.
Even the last section of the opinion, in which the judge acknowledged that plaintiffs are entitled to damages, reads rather pro-defendant to me. The court acknowledged that plaintiffs should receive damages to compensate them for whatever "actual harm" they experienced as students at UC Davis who were interested in athletics. The court does not assign a number to this, due to the fact that the parties have not yet briefed the issue of damages, but it's a number that could theoretically be zero. The court did not hold that U.C. Davis was not liable for reasons having to do with the wrestling team's decision to cut the plaintiffs. The basis for liability is only that it did not add enough opportunities for women in general. Thus, the wrestlers will not be compensated for their lost opportunity to wrestle (whatever dollar amount could be attached to that) but the generalized disappointment they experienced as undifferentiated members of the female student body because the university did not have enough opportunities to satisfy Title IX. This seems like a much harder type of damage to monetize.
Assuming this decision is either upheld or not appealed, I predict that it will be influential on the general question of how to measure prong two compliance when a university eliminates opportunities for the underrepresented sex. It has always been clear that a university that eliminates athletic opportunities for women will have a difficult-to-impossible claim of prong two compliance. After this decision, it is clear that eliminating viable opportunities without replacing them will never qualify for prong two. The rest of the decision, rooted in a rather unique controversy about female adjuncts to a men's wrestling team, will likely have less influence.
What made the decision, at least in part, a "Title IX victory"? Ultimately, the judge decided that while the plaintiffs were students at U.C. Davis, the university did not comply with the three-prong test used to measure equity in the athletic opportunities provided to each sex. Davis stipulated that during the time the plaintiffs were students, the university did not offer opportunities proportionate to the percentage of women in undergraduate population (prong one) and that there was unmet interest and ability among the underrepresented sex (prong three). But, Davis argued, it satisfied prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, which is prong two of the three-part test. In large part, the university's prong two defense rested on the fact that it had added three women's sports in 1996. Typically, adding a women's team gets a university two-to three years of credit for "continuing" program expansion, and the court seemed inclined to agree that adding three teams at once should count for a longer safe harbor. However, the court reasoned that even if Davis got extra credit for adding multiple teams in 1996, it still eliminated over 30 athletic opportunities for women during the relevant time frame disqualified them for compliance with "continuous" program expansion. In particular, the university eliminated J.V. teams in women's water polo and lacrosse in 2000, and while the court noted that this decision was not discriminatory or itself a violation -- even the coaches of those sports supported the decision to turn the J.V. teams into club teams -- the court determined that the "failure to replace" those opportunities at the same time put prong two compliance out of reach.
Yet despite ruling that U.C. Davis did not comply with Title IX at the time it eliminated opportunities for female wrestlers, much of the court's decision is as pro-Davis as some of the headlines suggest. For one thing, even in its Title IX analysis, the court is careful to commend Davis for its history of program expansion, which included a rigorous self-analysis of compliance that resulted in the university's decision to add women's teams during a period of time in the 1980s when Title IX enforcement was lax and many other universities ignored the law. Additionally, the court emphasized that cutting the women from the wrestling team did not count against the university for purposes of prong two, since they were not cut because of sex but for "normal fluctuations" based on talent and skill.
Moreover, the court dismissed the plaintiffs' other Title IX arguments, such as that the university was required to provide a female wrestling team to satisfy the unmet interest and ability, after determining that at the time there was not a reasonable expectation for competition for such a team. And it dismissed all of the plaintiffs' Equal Protection claims which were directed at individual university officials. According to the court, the female wrestlers had no constitutional right to be members of the men's wrestling team, only, at most to an equal opportunity to try out for the team. A decision by the head coach that the women had to qualify based on talent is not discrimination on the basis of sex, nor is it a decision that can be attributed to the athletic director, associate athletic director, or other individual defendants.
Even the last section of the opinion, in which the judge acknowledged that plaintiffs are entitled to damages, reads rather pro-defendant to me. The court acknowledged that plaintiffs should receive damages to compensate them for whatever "actual harm" they experienced as students at UC Davis who were interested in athletics. The court does not assign a number to this, due to the fact that the parties have not yet briefed the issue of damages, but it's a number that could theoretically be zero. The court did not hold that U.C. Davis was not liable for reasons having to do with the wrestling team's decision to cut the plaintiffs. The basis for liability is only that it did not add enough opportunities for women in general. Thus, the wrestlers will not be compensated for their lost opportunity to wrestle (whatever dollar amount could be attached to that) but the generalized disappointment they experienced as undifferentiated members of the female student body because the university did not have enough opportunities to satisfy Title IX. This seems like a much harder type of damage to monetize.
Assuming this decision is either upheld or not appealed, I predict that it will be influential on the general question of how to measure prong two compliance when a university eliminates opportunities for the underrepresented sex. It has always been clear that a university that eliminates athletic opportunities for women will have a difficult-to-impossible claim of prong two compliance. After this decision, it is clear that eliminating viable opportunities without replacing them will never qualify for prong two. The rest of the decision, rooted in a rather unique controversy about female adjuncts to a men's wrestling team, will likely have less influence.
Friday, June 17, 2011
Female Wrestlers' Case Against UC Davis Goes to Trial
On Wednesday, a federal district court judge in California heard closing arguments in the trial to determine whether the University of California at Davis violated Title IX when it denied opportunities to female wrestlers in 2001. The case has been in litigation for a many years, and we have blogged about it several times (see here, here, here, and here.)
The plaintiffs in this case are three female, former student athletes who wrestled on the U.C. Davis team until they were cut in 2001. According to this article about the trial, there is conflicting testimony about whether then-athletic director told the then-wrestling coach Michael Burch to cut the women, or whether the coach decided to cut the women, who did not contribute points in wrestling meets, after being told by the AD that he had to reduce the size of the team. In response to protest, the athletic director granted them the right to try out for the team. Two of the women tried out but did not make the team, and a third did not try out.
What about this scenario could violate Title IX? On the one hand, the law does not require schools to have coed teams in contact sports like wrestling. And where the contact sport exception does not apply, female athletes athletes are limited to a right to try out for the men's team when it's the only team in that sport. But at the same time, universities have the obligation under Title IX to provide an equitable number of athletic opportunities to female athletes. Thus, UC Davis could have lawfully excluded women from the wrestling team, if it otherwise provided equitable opportunities to women. But because it did not, the plaintiffs argue, eliminating their opportunities to participate in wrestling violated the law.
Thus, what the judge will really be deciding is whether UC Davis's overall distribution of athletic opportunities complied with Title IX. Davis contends that it complied with prong two, which requires it to show a history and continuous practice of expanding opportunities for women. Plaintiffs' witnesses, including women's sports expert Donna Lopiano, testified that UC Davis's history of women's sports, which included going twenty years without adding any women's teams, then adding three at once in 1996, followed by outdoor track in 1998 and indoor track in 1999, does not qualify. According to the same article, however, another women's sports expert, Christine Grant, testified for UC Davis that the university deserved credit for adding three teams at once.
Other issues also bear on the question of UC Davis's proffered prong two compliance. Namely, the judge will also have to figure out whether the university had good reasons in the 1990s to cut two other women's teams and to reject petitions by women's club teams seeking elevation to varsity status. And the judge will have to figure out how much prong two credit to give to the university's decision to add indoor track as a women's sport in 1999. An appellate court has already ruled that a sport does not necessarily have to raise the number of actual athletes in order to count as new athletic opportunity for existing athletes to compete in another sport. But adding indoor track could still be questionable evidence of prong two compliance if it appears that the decision was motivated by the universities interest in efficiency (in that indoor track doubles as an off-season for other running sports) rather than in response to genuine student interest.
The judge's decision is expected in July.
The plaintiffs in this case are three female, former student athletes who wrestled on the U.C. Davis team until they were cut in 2001. According to this article about the trial, there is conflicting testimony about whether then-athletic director told the then-wrestling coach Michael Burch to cut the women, or whether the coach decided to cut the women, who did not contribute points in wrestling meets, after being told by the AD that he had to reduce the size of the team. In response to protest, the athletic director granted them the right to try out for the team. Two of the women tried out but did not make the team, and a third did not try out.
What about this scenario could violate Title IX? On the one hand, the law does not require schools to have coed teams in contact sports like wrestling. And where the contact sport exception does not apply, female athletes athletes are limited to a right to try out for the men's team when it's the only team in that sport. But at the same time, universities have the obligation under Title IX to provide an equitable number of athletic opportunities to female athletes. Thus, UC Davis could have lawfully excluded women from the wrestling team, if it otherwise provided equitable opportunities to women. But because it did not, the plaintiffs argue, eliminating their opportunities to participate in wrestling violated the law.
Thus, what the judge will really be deciding is whether UC Davis's overall distribution of athletic opportunities complied with Title IX. Davis contends that it complied with prong two, which requires it to show a history and continuous practice of expanding opportunities for women. Plaintiffs' witnesses, including women's sports expert Donna Lopiano, testified that UC Davis's history of women's sports, which included going twenty years without adding any women's teams, then adding three at once in 1996, followed by outdoor track in 1998 and indoor track in 1999, does not qualify. According to the same article, however, another women's sports expert, Christine Grant, testified for UC Davis that the university deserved credit for adding three teams at once.
Other issues also bear on the question of UC Davis's proffered prong two compliance. Namely, the judge will also have to figure out whether the university had good reasons in the 1990s to cut two other women's teams and to reject petitions by women's club teams seeking elevation to varsity status. And the judge will have to figure out how much prong two credit to give to the university's decision to add indoor track as a women's sport in 1999. An appellate court has already ruled that a sport does not necessarily have to raise the number of actual athletes in order to count as new athletic opportunity for existing athletes to compete in another sport. But adding indoor track could still be questionable evidence of prong two compliance if it appears that the decision was motivated by the universities interest in efficiency (in that indoor track doubles as an off-season for other running sports) rather than in response to genuine student interest.
The judge's decision is expected in July.
Tuesday, December 14, 2010
UC Davis Officials Do Not Have Immunity from Wrestlers' Suit
Mansourian v. Regents is the case against University of California at Davis in which former female wrestlers challenge the university's decision in 2000 that women would no longer be eligible to participate in varsity wrestling team. The plaintiff's Title IX claims against the university have been litigated in the district and appellate court, and are proceeding toward trial. (For more background, see prior posts here, here, and here.) The plaintiff also filed claims against several university officials under 42 U.S.C. 1983 (the statute that provides a cause of action for constitutional violations) claiming that the officials violated their rights under the Equal Protection Clause. These claims were initially dismissed as preempted by the Title IX claim, but reinstated after the Supreme Court decided in Fitzgerald v. Barnstable School District that Title IX and 1983 claims could proceed simultaneously.
So the university officials --the former chancellor, the former associate vice chancellor, the then- and current athletic director, and a former associate athletic director -- tried a different argument to get those claims thrown out of court -- qualified immunity. Under this doctrine, individuals cannot be personally liable for unconstitutional conduct if the law did not clearly forbid the conduct at the time. Recently, however, the district court denied this motion and refused to let the officials out of the case, after determining that the law requiring equal opportunity in athletics was settled at the time, leaving the officials no defense that they didn't know what they were doing violated plaintiff's rights.
The only thing left for plaintiffs to do is to prove their factual allegations at trial, which is scheduled for April.
So the university officials --the former chancellor, the former associate vice chancellor, the then- and current athletic director, and a former associate athletic director -- tried a different argument to get those claims thrown out of court -- qualified immunity. Under this doctrine, individuals cannot be personally liable for unconstitutional conduct if the law did not clearly forbid the conduct at the time. Recently, however, the district court denied this motion and refused to let the officials out of the case, after determining that the law requiring equal opportunity in athletics was settled at the time, leaving the officials no defense that they didn't know what they were doing violated plaintiff's rights.
The only thing left for plaintiffs to do is to prove their factual allegations at trial, which is scheduled for April.
Tuesday, July 13, 2010
Sure it'd be nice to keep all the sports...
In a recent hearing in California, a state senator strongly questioned the folks at UC Davis over their recent decision to cut four intercollegiate athletic teams. Senator Dean Florez, who serves on the senate's Select Committee on Gender Discrimination and Title IX Implementation (out of curiously, do other states have such a committee?), feared that the cuts were not bringing Davis any closer to proportionality. Davis, prior to these cuts, faced a lawsuit brought by several female students who played club sports. They argued that Davis was not providing enough opportunities in athletics for female students. The settlement in that case binds Davis to achieving proportionality within +/- 1.5 percentage points within ten years.*
This could be part of Senator's Florez's concern. And I am glad that state legislators are paying attention to achieving equity (though not surprised given how much money Title IX lawsuits have cost the state of California in the past few years). But if I was a state senator in California (and hadn't already resigned in utter frustration), I wouldn't be giving UC Davis a hard time over cuts that they--given the current economic reality--had to make. The athletic department had to cut over $2 million from its budget. You cannot do that by simply reducing athlete per diems or limiting travel budgets.
It's a very...nuanced situation. Because according to the math Erin and I just did based on EADA data, Davis is indeed moving closer to proportionality. Taking into account the opportunities lost from these recent cuts, the percentage of women's opportunities is at 52. The undergraduate population is 56 percent women. The 4 percent difference represents 14 opportunities--if we were shooting for exact proportionality (we didn't calculate the 1.5). This is better than the 22 opportunity disparity that existed prior to the cuts.
But what exactly was Senator Florez getting at? That no cuts should have been made? That seems like an impossible situation at this point. Given that programs, faculty, administrative support at California schools are being and have been cut it would seem kind of...well wrong...to exempt athletics. The Title IX Blog has many friends and colleagues in California who are taking furloughs left and right. And though they are sport-minded people, it's not fair to ask some to sacrifice a lot and exempt others.
So then is Senator Florez saying that Davis should have cut only men's sports? Maybe. It is still possible for the crew team to bring a lawsuit against the school because they have not complied, at this point, with any of the three prongs. Would Davis itself be in a "safe harbor" (a term usually used by anti-IXers to discuss proportionality, in a negative way) because they have ten years to reach 1.5 percent proportionality? I don't know. It would be interesting to see how a court interpreted the previous settlement in light of the current situation. I am skeptical that such a move will occur given that Davis is so close to proportionality even with the cuts--something I assume they carefully calculated themselves--and that they are indeed bound by an existing settlement to make progress. It is unfortunate--as it always is--that "progress" has come in the form of cutting teams.
*Note that I was wrong--yes, I was wrong!--in an earlier post dated April 17 about UC Davis having to maintain 5 percent proportionality as a result of a lawsuit from the 1980s. Only institutions in the California State System (i.e. Cal State Riverside, Cal State Fresno) are bound by that ruling.
This could be part of Senator's Florez's concern. And I am glad that state legislators are paying attention to achieving equity (though not surprised given how much money Title IX lawsuits have cost the state of California in the past few years). But if I was a state senator in California (and hadn't already resigned in utter frustration), I wouldn't be giving UC Davis a hard time over cuts that they--given the current economic reality--had to make. The athletic department had to cut over $2 million from its budget. You cannot do that by simply reducing athlete per diems or limiting travel budgets.
It's a very...nuanced situation. Because according to the math Erin and I just did based on EADA data, Davis is indeed moving closer to proportionality. Taking into account the opportunities lost from these recent cuts, the percentage of women's opportunities is at 52. The undergraduate population is 56 percent women. The 4 percent difference represents 14 opportunities--if we were shooting for exact proportionality (we didn't calculate the 1.5). This is better than the 22 opportunity disparity that existed prior to the cuts.
But what exactly was Senator Florez getting at? That no cuts should have been made? That seems like an impossible situation at this point. Given that programs, faculty, administrative support at California schools are being and have been cut it would seem kind of...well wrong...to exempt athletics. The Title IX Blog has many friends and colleagues in California who are taking furloughs left and right. And though they are sport-minded people, it's not fair to ask some to sacrifice a lot and exempt others.
So then is Senator Florez saying that Davis should have cut only men's sports? Maybe. It is still possible for the crew team to bring a lawsuit against the school because they have not complied, at this point, with any of the three prongs. Would Davis itself be in a "safe harbor" (a term usually used by anti-IXers to discuss proportionality, in a negative way) because they have ten years to reach 1.5 percent proportionality? I don't know. It would be interesting to see how a court interpreted the previous settlement in light of the current situation. I am skeptical that such a move will occur given that Davis is so close to proportionality even with the cuts--something I assume they carefully calculated themselves--and that they are indeed bound by an existing settlement to make progress. It is unfortunate--as it always is--that "progress" has come in the form of cutting teams.
*Note that I was wrong--yes, I was wrong!--in an earlier post dated April 17 about UC Davis having to maintain 5 percent proportionality as a result of a lawsuit from the 1980s. Only institutions in the California State System (i.e. Cal State Riverside, Cal State Fresno) are bound by that ruling.
Thursday, April 22, 2010
Ninth Circuit Revises UC Davis Decision
The Ninth Circuit Court of Appeals recently issued a revision to its decision, issued in February, that reinstated female wrestlers' case against the University of California at Davis. The revision does not change the outcome or the court's analysis of the main issue on appeal, which was district court's erroneous determination that the plaintiffs had to provide actual notice to the university before proceeding with their claim that its decision to eliminate women's wrestling opportunities violated Title IX.
Rather, the revision clarified that the various Title IX compliance prongs -- including, prong two, which was UC Davis's professed means of compliance -- measure athletic opportunities, not number of athletes. Thus, UC Davis may count opportunities added in sports like indoor track in its argument that it has historically and continuously added opportunities for the underrepresented sex (as prong 2 requires), even if some of the participants who benefited from the new team already participated in outdoor track. However, even counting the indoor track opportunities, UC Davis still did not meet the prong 2 standard, since it only added opportunities for women between 1996 and 2000. Thus, UC Davis could not satisfy any of the three prongs after it eliminated opportunities for women in wrestling.
Revised decision is: Mansourian v. Regents of the Univ. of Ca., 2010 WL 1542502 (9th Cir, Apr. 20, 2010).
Rather, the revision clarified that the various Title IX compliance prongs -- including, prong two, which was UC Davis's professed means of compliance -- measure athletic opportunities, not number of athletes. Thus, UC Davis may count opportunities added in sports like indoor track in its argument that it has historically and continuously added opportunities for the underrepresented sex (as prong 2 requires), even if some of the participants who benefited from the new team already participated in outdoor track. However, even counting the indoor track opportunities, UC Davis still did not meet the prong 2 standard, since it only added opportunities for women between 1996 and 2000. Thus, UC Davis could not satisfy any of the three prongs after it eliminated opportunities for women in wrestling.
Revised decision is: Mansourian v. Regents of the Univ. of Ca., 2010 WL 1542502 (9th Cir, Apr. 20, 2010).
Saturday, April 17, 2010
UC Davis announces cuts
As expected, UC Davis will be cutting four sports due to the extreme budget shortfalls being experienced by California schools. Women's rowing, men's wrestling, men's track and field, and men's swimming and diving will not be on the slate of varsity sports next year. As we mentioned previously, Davis fields a much higher than average number of sports than its Big West Conference peers making it a difficult financial juggling act even in good economic times.
The expected savings is $5 million over five years. But the fiscal restructuring plan in the athletic department will eliminate its $1 million+ deficit and make it fiscally solvent in 3-5 years.
Of course Title IX was one factor in deciding which teams to cut. If you read the news that came directly from Davis you will see that the cuts affect 73 female student-athletes and 80 male student-athletes. If you read the news that came from the AP and was re-posted on ESPN, you will read that three men's sports got cut and one women's sport was cut. In other words, it looks like men are bearing the overwhelming brunt of the cuts, which is not the case.
Davis is required, as are all University of California system schools because of a previous Title IX settlement, to maintain proportional opportunities within 5 percentage points. It currently does so and thus cuts would not--and did not as we see--disproportionately one gender.
The expected savings is $5 million over five years. But the fiscal restructuring plan in the athletic department will eliminate its $1 million+ deficit and make it fiscally solvent in 3-5 years.
Of course Title IX was one factor in deciding which teams to cut. If you read the news that came directly from Davis you will see that the cuts affect 73 female student-athletes and 80 male student-athletes. If you read the news that came from the AP and was re-posted on ESPN, you will read that three men's sports got cut and one women's sport was cut. In other words, it looks like men are bearing the overwhelming brunt of the cuts, which is not the case.
Davis is required, as are all University of California system schools because of a previous Title IX settlement, to maintain proportional opportunities within 5 percentage points. It currently does so and thus cuts would not--and did not as we see--disproportionately one gender.
Monday, March 15, 2010
Cuts forthcoming at Davis
Due to a major budget shortfall this year, the UC Davis athletic department has been asked to cut $1.79 million from the department budget next year. The school has given the department control over how to cut its budget, but it's a nearly foregone conclusion that some sports will have to be cut. Davis, a DI institution, fields 27 varsity sports right now. While it will be an unfortunate situation for the cut teams and the affected student-athletes, Davis's 27-team department is far larger than its peer institutions in the Big West, which average just over 18 teams. Being forced to pare down athletic offerings because the bad economy, which has hit California schools particularly hard, is never a good situation. But even the athletic director is calling the potential cuts "right-sizing" and not downsizing. Cuts now will hopefully lead to a stronger, more fiscally responsible, department down the road.
Tuesday, February 09, 2010
UC Davis case reinstated on appeal
Erin wished in May 2008 that the three plaintiffs in the UC Davis wrestling case would appeal the decision of the lower court to dismiss the lawsuit in which the student-athletes allege Title IX violations after the school eliminated their opportunity to wrestle.
And this week her wish came true. The 9th Circuit Court of Appeals reinstated the lawsuit* after disagreeing with the lower court's rationale that the students had to inform their institution of the discrimination first. But as Erin pointed out in her analysis of the case, this standard, established by SCOTUS's decision in Gebser, a sexual harassment case, isn't really applicable in the case of athletics. An institution, as it restructures and makes decisions about how to distribute monies and opportunities, should be well aware of doing so equitably. After all, every school has its own Title IX compliance officer and is called upon by the NCAA on a regular basis to provide evidence of gender equity.
UC Davis lawyers were not surprised by the court's decision, but they note that since the time of the lawsuit the school (in accordance with a subsequent settlement) has moved closer to proportionality and now, they say, are within 3 percentage points. According to the settlement, the school must be within 1.5 percent in 10 years. How these recent efforts to provide equitable opportunities factor into the renewed lawsuit remains to be seen.
* In this article from the AP and reprinted in the LA Times, the writer refers to Title IX as "the so-called Title IX law." What is the implication here? That it's not really a law? Is the writer referring to the fact that it was renamed to honor Patsy Mink? I don't see a lot of other laws being modified by "so-called." The so-called Civil Rights Act? Makes one wonder how he really feels about Title IX.
And this week her wish came true. The 9th Circuit Court of Appeals reinstated the lawsuit* after disagreeing with the lower court's rationale that the students had to inform their institution of the discrimination first. But as Erin pointed out in her analysis of the case, this standard, established by SCOTUS's decision in Gebser, a sexual harassment case, isn't really applicable in the case of athletics. An institution, as it restructures and makes decisions about how to distribute monies and opportunities, should be well aware of doing so equitably. After all, every school has its own Title IX compliance officer and is called upon by the NCAA on a regular basis to provide evidence of gender equity.
UC Davis lawyers were not surprised by the court's decision, but they note that since the time of the lawsuit the school (in accordance with a subsequent settlement) has moved closer to proportionality and now, they say, are within 3 percentage points. According to the settlement, the school must be within 1.5 percent in 10 years. How these recent efforts to provide equitable opportunities factor into the renewed lawsuit remains to be seen.
* In this article from the AP and reprinted in the LA Times, the writer refers to Title IX as "the so-called Title IX law." What is the implication here? That it's not really a law? Is the writer referring to the fact that it was renamed to honor Patsy Mink? I don't see a lot of other laws being modified by "so-called." The so-called Civil Rights Act? Makes one wonder how he really feels about Title IX.
Friday, June 19, 2009
Settlement Reached in UC Davis Case
In 2007, three female students who played club sports at the University of California at Davis sued the university to challenge the lack of varsity athletic opportunities for women. They argued that Davis failed to satisfy any of the three alternative prongs for measuring compliance in this regard. The university argued that it complied with the proportionality prong, as women made up 56% of the student body, and received 50% of athletic opportunities. This difference of 6 percentage points is close to the +/- 5 percentage point difference that is commonly -- though unofficially -- recognized as acceptable to constitute substantial proportionality.
This week, the parties have agreed upon a settlement to end the litigation, in which U.C. Davis agrees to close that gap to 1.5 percentage points within 10 years. The New York Times's coverage of the settlement calls this a "stricter standard" that could influence how compliance is measured across the country. To put this point into context, I want to again point out that courts have accepted that percentage differences up to 5 percentage points qualify as substantial proportionality, this has never has this been adopted as a hard and fast rule applicable to every case.
Moreover, I don't see U.C. Davis's agreement to bring its athletic opportunity percentage to within 1.5 points of the percentage of women as acceptance of a "stricter standard" so much as an acceptance of a definition of substantial proportionality that is more appropriate for Davis -- and, frankly, which might not be appropriate at other schools. The judge in the U.C. Davis case recognized when he denied the university's motion for summary judgment that a six percentage point difference such as Davis's can represent a disparity of many opportunities or few, depending on the size of the university's enrollment and the athletic department. At Davis, the disparity represented over one hundred opportunities that would have to be added to bring the percentage of athletic opportunities in line with the percentage of women on campus and give women the same access to sports as men. At smaller schools, that same percentage point difference might only represent dozens of opportunities, rather than hundreds. It makes sense that a percentage point differential that might be acceptable in one case might not be appropriate in another, and that Davis should be striving for a difference lower, rather than just over, a 5 percentage point difference. The university should be commended for agreeing to those terms, and for its other promise to contribute $110,000 to support the development of women's athletics through club sports.
This week, the parties have agreed upon a settlement to end the litigation, in which U.C. Davis agrees to close that gap to 1.5 percentage points within 10 years. The New York Times's coverage of the settlement calls this a "stricter standard" that could influence how compliance is measured across the country. To put this point into context, I want to again point out that courts have accepted that percentage differences up to 5 percentage points qualify as substantial proportionality, this has never has this been adopted as a hard and fast rule applicable to every case.
Moreover, I don't see U.C. Davis's agreement to bring its athletic opportunity percentage to within 1.5 points of the percentage of women as acceptance of a "stricter standard" so much as an acceptance of a definition of substantial proportionality that is more appropriate for Davis -- and, frankly, which might not be appropriate at other schools. The judge in the U.C. Davis case recognized when he denied the university's motion for summary judgment that a six percentage point difference such as Davis's can represent a disparity of many opportunities or few, depending on the size of the university's enrollment and the athletic department. At Davis, the disparity represented over one hundred opportunities that would have to be added to bring the percentage of athletic opportunities in line with the percentage of women on campus and give women the same access to sports as men. At smaller schools, that same percentage point difference might only represent dozens of opportunities, rather than hundreds. It makes sense that a percentage point differential that might be acceptable in one case might not be appropriate in another, and that Davis should be striving for a difference lower, rather than just over, a 5 percentage point difference. The university should be commended for agreeing to those terms, and for its other promise to contribute $110,000 to support the development of women's athletics through club sports.
Friday, May 02, 2008
Female Wrestlers' Discrimination Claim Dismissed for Lack of Notice
Now that last week's decision in the U.C. Davis wrestling case is available online, I can offer the fuller analysis I promised.
The background, briefly, is this: In 2000, U.C. Davis decided that women would no longer be eligible to participate on the wrestling team. The female wrestlers sued, alleging discrimination by the athletic department in the overall treatment of women's athletics (in terms of scholarships, access to facilities, coaching, etc.) and failing to effectively accommodate female students with an equitable number of opportunities to participate in athletics (the three-prong test). Last year, the unequal treatment claim was dismissed as untimely in an application of the Supreme Court's controversial Ledbetter standard.
Last week, the district court dismissed the remaining ineffective accommodation claim because "plaintiffs have not alleged they gave defendant notice and an opportunity to remedy any purported systemic non-compliance with Title IX." The district court relied on a 1998 Supreme Court decision, Gebser v. Lago Vista School District, which emphasized that an institution could not be liable to a private plaintiff for money damages unless it had notice of the discrimination the plaintiff faced, and an opportunity to fix the problem.
Gebser was, of course, a sexual harassment case, and its applicability in athletics context is questionable. If a plaintiff is harassed by a teacher or another student, the discriminatory conduct that can attributed to the institution itself (and thus, subject to Title IX) is its failure to take appropriate steps to protect the plaintiff and prevent the harassment from continuing. It makes sense to emphasize the notice requirement in that context, since an institution can't reasonably be expected to prevent someone else's harassing behavior if it doesn't know about it.
In the athletics cases, however, plaintiffs are alleging discriminatory conduct in the form of institutional decisions to configure its athletics program in a certain way. It doesn't make sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions.
The district court cited one other case that applies Gebser's notice requirement against Title IX plaintiffs in the athletics context. That decision is Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001). But from what I can tell, that is the only other one. I hope the plaintiffs appeal this decision. Perhaps we'll see a circuit split.
Decision is: Mansourian v. Board of Regents of the University of California at Davis, 2008 WL 1860031 (E.D. Cal. Apr. 23, 2008).
The background, briefly, is this: In 2000, U.C. Davis decided that women would no longer be eligible to participate on the wrestling team. The female wrestlers sued, alleging discrimination by the athletic department in the overall treatment of women's athletics (in terms of scholarships, access to facilities, coaching, etc.) and failing to effectively accommodate female students with an equitable number of opportunities to participate in athletics (the three-prong test). Last year, the unequal treatment claim was dismissed as untimely in an application of the Supreme Court's controversial Ledbetter standard.
Last week, the district court dismissed the remaining ineffective accommodation claim because "plaintiffs have not alleged they gave defendant notice and an opportunity to remedy any purported systemic non-compliance with Title IX." The district court relied on a 1998 Supreme Court decision, Gebser v. Lago Vista School District, which emphasized that an institution could not be liable to a private plaintiff for money damages unless it had notice of the discrimination the plaintiff faced, and an opportunity to fix the problem.
Gebser was, of course, a sexual harassment case, and its applicability in athletics context is questionable. If a plaintiff is harassed by a teacher or another student, the discriminatory conduct that can attributed to the institution itself (and thus, subject to Title IX) is its failure to take appropriate steps to protect the plaintiff and prevent the harassment from continuing. It makes sense to emphasize the notice requirement in that context, since an institution can't reasonably be expected to prevent someone else's harassing behavior if it doesn't know about it.
In the athletics cases, however, plaintiffs are alleging discriminatory conduct in the form of institutional decisions to configure its athletics program in a certain way. It doesn't make sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions.
The district court cited one other case that applies Gebser's notice requirement against Title IX plaintiffs in the athletics context. That decision is Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001). But from what I can tell, that is the only other one. I hope the plaintiffs appeal this decision. Perhaps we'll see a circuit split.
Decision is: Mansourian v. Board of Regents of the University of California at Davis, 2008 WL 1860031 (E.D. Cal. Apr. 23, 2008).
Friday, April 25, 2008
UC Davis Wrestling Lawsuit Dismissed
Until I can find a copy of the decision to read, UC Davis's press release is going to have to do...
A prior post on the Mansourian case is here.A federal judge has ruled in favor of the University of California, Davis, in a Title IX case filed by four women who wanted to be on the intercollegiate wrestling team.
In an order issued Wednesday in Sacramento, the court held that the plaintiffs in Mansourian v. Regents of the University of California failed to give the campus notice that they were making an allegation against the entire women's intercollegiate athletic program. The plaintiffs had changed the focus of their lawsuit to allege Title IX violations in the overall program after the court dismissed their claims pertaining to the wrestling team last October, finding them to be untimely.
Tuesday, December 18, 2007
UC Davis Athletes' Lawsuit Survives Motion to Dismiss
In July, female athletes filed a lawsuit challenging the inequitable distribution of athletic opportunities at UC Davis. As we noted then, women make up almost 56% of the student body but receive only 50% of the athletic opportunities. This ~6% disparity, we said, was "very close to the generally-accepted 'within 5%' benchmark for compliance with prong one" -- raising the question (and the opportunity for valuable judicial precedent) about how close a school's percentages have to be to satisfy prong one.
Last week a federal judge in California denied UC Davis's motion to dismiss, reasoning that proportionality question presents an issue of fact that is improper to resolve before discovery and formal fact-finding take place. Specifically, the judge left open the possibility that
12/19 update: For more on the circuit split regarding 1983 preemption, see this tremedously helpful post.
Decision is: Brust v. Regents of the University of California, 2007 WL 4365521 (Dec. 12, 2007).
Last week a federal judge in California denied UC Davis's motion to dismiss, reasoning that proportionality question presents an issue of fact that is improper to resolve before discovery and formal fact-finding take place. Specifically, the judge left open the possibility that
Plaintiffs may be able to offer evidence that the disparity is greater than that disclosed by UCD. Plaintiffs may also be able to present evidence that a 6% disparity has a disproportionate impact on women enrolled at UCD due to the size of its enrollment and athletic program; this disproportionate impact may affect the court's analysis of whether the athletic opportunities are “substantially proportionate.”The judge did, however, grant UC Davis's motion to dismiss plaintiffs' claims under 42 U.S.C. 1983 that the inequitable distribution of athletic opportunities violated the Equal Protection clause as well as Title IX. Courts are split on the question of whether Title IX preempts claims under 1983, but many courts, including this one, believe that Title IX's remedies are all Congress intended plaintiffs to have.
12/19 update: For more on the circuit split regarding 1983 preemption, see this tremedously helpful post.
Decision is: Brust v. Regents of the University of California, 2007 WL 4365521 (Dec. 12, 2007).
Tuesday, October 23, 2007
Ledbetter Invoked in Female Wrestlers' Case Against UC Davis
Mansourian v. U.C. Davis is a Title IX lawsuit filed in December 2003 that challenges the decision of U.C. Davis's athletic department to curtail women's wrestling. A federal district court recently dismissed the plaintiffs' unequal treatment claim -- but not their ineffective accommodation claim -- because it was filed too late.
We've blogged about other, related litigation involving wrestling and U.C. Davis here and here. Here is some background: In the 1990s, U.C. Davis's wrestling program was open to men and women. Female wrestlers competed against other women under "women's rules." The plaintiffs chose to attend U.C. Davis so that they would have an opportunity to wrestle. They joined the team and competed for two years.
In the 2000-01 school year, the University eliminated women from its wrestling program. After plaintiffs and the then-coach Michael Burch protested this decision and filed an OCR complaint, the University purported to change its mind in the spring of 2001. However, it never followed through. Burch was replaced with a coach who opposed women's wrestling, and in the fall of 2001 it became clear to the women who had chosen to attend or remain at U.C. Davis expecting to wrestle in 01-02 that they would be disappointed yet again.
The female wrestlers sued in December of 2003, alleging, essentially, two separate violations of Title IX: First, they argued that U.C. Davis's decision to exclude women from the wrestling program violated the regulatory requirement that schools provide equal treatment to women's athletics. They also argued that by cutting these participation opportunities, the University failed to effectively accommodate the interests and abilities of female athletes, a violation the three-prong policy.
Title IX does not specify a statute of limitations, so the court applied California's general two-year statute of limitations for personal injury cases. However, it found that plaintiffs' claims of unequal treatment all arise out of conduct that occurred between 2000 and the fall of 2001, which gave the plaintiffs until fall of 2003 to file their complaint. In dismissing the December 2003-filed equal accommodation claim as untimely, the court relied on the Supreme Court's recent decision in Ledbetter v. Goodyear Tire, which held that the statute of limitations ran from the employers' initial discriminatory decision to discriminate against the plaintiff by paying her less than comparable men, even though she continued to experience the effect of this decision for as long as she continued to work there. U.C. Davis's initial discriminatory decision to treat female wrestlers differently than men thus started the two-year clock, even though plaintiffs experienced the effect of this discrimination as long as they continued to be students.
However, the court decided that the plaintiffs are allowed to press forward on their argument that cutting opportunities for female wrestlers violated the effective accommodation component of the Title IX regulations. Unlike the unequal treatment claim, the argument that U.C. Davis offers too few opportunities for women is not subject to a Ledbetter "initial decision" rule because this discriminatory act is repeated every day that the university fails to accommodate female athletes' interests and abilities or otherwise comply with the three-prong test. The court denied U.C. Davis's motion to dismiss this claim, and ruled that the plaintiffs are entitled to offer proof of the university's noncompliance and, if successful, to seek compensatory damages.
Decision is: Mansourian v. Board of Regents of the University of California at Davis, 2007 WL 3046034 (E.D. Cal. Oct. 18. 2007).
We've blogged about other, related litigation involving wrestling and U.C. Davis here and here. Here is some background: In the 1990s, U.C. Davis's wrestling program was open to men and women. Female wrestlers competed against other women under "women's rules." The plaintiffs chose to attend U.C. Davis so that they would have an opportunity to wrestle. They joined the team and competed for two years.
In the 2000-01 school year, the University eliminated women from its wrestling program. After plaintiffs and the then-coach Michael Burch protested this decision and filed an OCR complaint, the University purported to change its mind in the spring of 2001. However, it never followed through. Burch was replaced with a coach who opposed women's wrestling, and in the fall of 2001 it became clear to the women who had chosen to attend or remain at U.C. Davis expecting to wrestle in 01-02 that they would be disappointed yet again.
The female wrestlers sued in December of 2003, alleging, essentially, two separate violations of Title IX: First, they argued that U.C. Davis's decision to exclude women from the wrestling program violated the regulatory requirement that schools provide equal treatment to women's athletics. They also argued that by cutting these participation opportunities, the University failed to effectively accommodate the interests and abilities of female athletes, a violation the three-prong policy.
Title IX does not specify a statute of limitations, so the court applied California's general two-year statute of limitations for personal injury cases. However, it found that plaintiffs' claims of unequal treatment all arise out of conduct that occurred between 2000 and the fall of 2001, which gave the plaintiffs until fall of 2003 to file their complaint. In dismissing the December 2003-filed equal accommodation claim as untimely, the court relied on the Supreme Court's recent decision in Ledbetter v. Goodyear Tire, which held that the statute of limitations ran from the employers' initial discriminatory decision to discriminate against the plaintiff by paying her less than comparable men, even though she continued to experience the effect of this decision for as long as she continued to work there. U.C. Davis's initial discriminatory decision to treat female wrestlers differently than men thus started the two-year clock, even though plaintiffs experienced the effect of this discrimination as long as they continued to be students.
However, the court decided that the plaintiffs are allowed to press forward on their argument that cutting opportunities for female wrestlers violated the effective accommodation component of the Title IX regulations. Unlike the unequal treatment claim, the argument that U.C. Davis offers too few opportunities for women is not subject to a Ledbetter "initial decision" rule because this discriminatory act is repeated every day that the university fails to accommodate female athletes' interests and abilities or otherwise comply with the three-prong test. The court denied U.C. Davis's motion to dismiss this claim, and ruled that the plaintiffs are entitled to offer proof of the university's noncompliance and, if successful, to seek compensatory damages.
Decision is: Mansourian v. Board of Regents of the University of California at Davis, 2007 WL 3046034 (E.D. Cal. Oct. 18. 2007).
Monday, July 30, 2007
Female Athletes Bring Title IX Suit Against UC Davis
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.
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.
Sunday, January 21, 2007
Details of UC Davis Settlement Released
We posted last month about the preliminary settlement that ended litigation between UC Davis and its former wrestling coach, Michael Burch. Burch had sued the university under Title IX, claiming that its decision not to renew his contract in 2001 was retaliation for his advocacy on behalf of female wrestlers.
Recently, the University of California Board of Regents approved and finalized the settlement, and we now know the amount: $725,000. UC Davis maintains that it decided to settle only to put an end to the litigation and avoid a possible hefty attorneys fee award. (Burch was represented by the AAUW Legal Advocacy Fund.)
The university is also quick to point out that nothing ever came of the female wrestlers' claims, that Burch claims he was terminated for defending. The Office for Civil Rights found that the three women wrestlers were not discriminated against by the University when they were cut from the men's wrestling team and denied the chance to form a wrestling team of their own. (AAUW's website make clear that the decision to cut women from the men's team was the Athletic Director's, not Burch's.) The agency found that the female wrestlers did not follow the university's process for adding new varsity sports, had too few potential participants, and had no prospect of competition within Davis's conference.
Recently, the University of California Board of Regents approved and finalized the settlement, and we now know the amount: $725,000. UC Davis maintains that it decided to settle only to put an end to the litigation and avoid a possible hefty attorneys fee award. (Burch was represented by the AAUW Legal Advocacy Fund.)
The university is also quick to point out that nothing ever came of the female wrestlers' claims, that Burch claims he was terminated for defending. The Office for Civil Rights found that the three women wrestlers were not discriminated against by the University when they were cut from the men's wrestling team and denied the chance to form a wrestling team of their own. (AAUW's website make clear that the decision to cut women from the men's team was the Athletic Director's, not Burch's.) The agency found that the female wrestlers did not follow the university's process for adding new varsity sports, had too few potential participants, and had no prospect of competition within Davis's conference.
Tuesday, December 05, 2006
UC Davis Settles Retaliation Suit with Wrestling Coach
According to this article in the Davis Enterprise, U.C. Davis has settled with a former wrestling coach Michael Burch, whose Title IX claims against the university "alleged that his dismissal in May 2001 was a result of his outspoken support for two women who had been cut from the team." The underlying dispute is also the subject of litigation, as four women cut from the U.C. Davis wrestling team in 2001 continue to press Title IX claims against the university.
The article notes that Burch's case "had attracted a great deal of outside attention, especially for the rare sight of a wrestling coach who supports Title IX."
The article notes that Burch's case "had attracted a great deal of outside attention, especially for the rare sight of a wrestling coach who supports Title IX."
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