Court Denies Quinnipiac's Motion to Lift Injunction

Over two years ago, a federal district court in Connecticut concluded that Quinnipiac University's decision to cut its women's volleyball team violated Title IX by leaving too few opportunities for women in its student body.  As a remedy, the court issued an injunction requiring Quinnipiac to retain the team until it could show that it could cut the team in a manner that complied with Title IX.  Yesterday, that same court ruled that Quinnipiac had not yet demonstrated such compliance, and denied the university's motion to lift the injunction.

Quinnipiac had asked the court to evaluate its compliance in light of several changes to its athletics program since the 2010 case.  The university added a women's golf team and a women's rugby team.  It also continued to support its fledgling acrobatics and tumbling ("acro") team, which the court had earlier determined should not be counted, since the sport was too new to provide athletic opportunities comparable to those afforded by other varsity sports. Finally, Quinnipiac instituted a policy prohibiting coaches from requiring student athletes to join additional teams.  This change addressed the court's finding that indoor and outdoor track opportunities should not count separately for certain cross-country athletes who were forced to practice with those teams as "simply an alternative form of off season training" but who did not compete with those teams due to injury or red-shirt status. 

The court easily concluded that the opportunities Quinnipiac added in women's golf, an NCAA recognized sport, should court towards its proportionality qualification.  However, it determined that acro and rugby, which both lack NCAA recognition at this point, should not count:

True, recognition by the NCAA is not, in itself, a requirement of Title IX. But where, as here, a school chooses to sponsor an athletics program at the highest level of competition (NCAA Division I), and offers all of its male athletes the opportunity to participate in NCAA-championship sports, the lack of NCAA recognition for a single women’s sport within that program raises a significant gender equity issue if the school hopes to count that unrecognized sport toward compliance with Title IX. So long as Quinnipiac chooses to hold itself out as a Division I institution, providing a full slate of NCAA-recognized sports for men, equity demands that it do the same for women.

Acro, the court pointed out, hasn't even made it onto the NCAA's list of emerging sports for women, the usual pathway toward becoming a championship sport.  And the court seemed skeptical of this recognition occurring in the near future, in light of the competing proposal from USA Cheer for a different version of competitive cheer called STUNT.  Only a handful of universities sponsor acro teams, which limits the opportunities for competition and denies participants the opportunity for a progressive play-off, which is a hallmark characteristic of varsity programs.

Rugby, on the other hand, is recognized as an emerging sport for women by the NCAA.  That status usually means that the sport will have an NCAA championship if a sufficient number of schools add teams within a ten year period. Rugby became an emerging sport in 2002, and has been added by only five universities (including Quinnipiac) within that time.  The court's concern, therefore, is that rugby's status on the emerging sports list is on borrowed time.  Quinnipiac's rugby team has limited opportunities for varsity-level competition, and as a result played most of its competitive schedule against other club-level teams.  It also had no opportunity for post-season competition.

Based on the court's decision not to count acro and rugby (as well as its decision not to count three injured cross-country runners who quit the indoor track team part-way through the season, but prior to any competition), the court removed 67 athletic opportunities from Quinnipiac's proffered tally, bringing the total number of athletic opportunities for women down to 254. There are 168 athletic opportunities for men, so the opportunities for women amount to 60.2%. By comparison, Quinnipiac's student body is 62.4% female, so Quinnipiac's disparity is 2.2%.  As tiny as this is expressed as a percent, 2.2 percent corresponds to an additional 25 athletic opportunities that would have to be added in order to hit 62.4. Since that is more than enough to sustain a new varsity team, Quinnipiac's proportionality is not just not close enough -- and would be even farther off if, without the injunction, Quinnipiac went ahead with plans to reduce women's opportunities by an additional 14 -- the number of participants in women's volleyball.

For these reasons, the court denied Quinnipiac's motion to lift the injunction.  Acknowledging the university's progress, the court nevertheless expressed some skepticism of the university's choices:  "Rather than simply recommit to women’s volleyball or bring other NCAA-championship sports to campus, the University doubled down on its plan to eliminate volleyball, and staked its compliance with Title IX on an as-yet unrecognized sport as well as an emerging sport in imminent danger of losing that recognition."  In sum, "by relying today on sports that do not yet provide genuine varsity participation opportunities, Quinnipiac has taken a prong-two approach to solving a prong-one problem."

Minute-by-minute compliance?

There has not been much news around the addition of teams at the collegiate level of late. A few here and there, a mention of Title IX compliance.
The forthcoming additions of two women's teams at Central Michigan University is the same. Women's golf and lacrosse in two and three years, respectively.* The university has not added a women's team since 1998. Though nothing in the article explicitly states that CMU is adhering to compliance via prong two, history of expanding opportunities for women, that is the impression one gets from reading based on statements such as the following:
"As long as we are working toward equality, we are in compliance"--Judy Chandler, chair of Gender Equality Committee
“This is step one. We aren’t done yet.” --University President George Ross
What struck me about this story was the comment Chandler made after the above remark: "No one can stay in compliance every minute, because things are always changing."
This might be true if an institution is opting for prong one or prong three compliance. If following the latter, interests do change and student populations change. Of course it is the school's responsibility to be diligent in its monitoring of these changing interests. And things change in terms of proportionality as well. Undergraduate populations fluctuate in terms of size and gender breakdown and are not always predictable. But again, the university has an obligation to remedy discrepancies in a timely manner.
But prong two is another story. If CMU has not added a sport since 1998 but still contend that they are expanding opportunities for women's participation, well--they aren't. Or they weren't. That situation was not changing--unless they were systematically adding roster spots to existing women's teams. There was no mention of that practice.
It seems to me that there were a lot of minutes of non-compliance. It doesn't appear that the university was scrambling to add opportunities for ten years or so and just couldn't because of some constantly changing circumstances.



* Apparently eight sports were up for consideration and golf and lacrosse were chosen because they are "Michigan sports." Unfortunately, women's golf is not a recognized part of the MAC, the conference to which CMU belongs. It will have to find a difference conference affiliation for this sport, along with making contacts and contracts with local golf courses to use for practice and competition. 

West of the Mississippi...

Teams are being added and dropped, and schools are conference hopping.
Not sure if it's the conference hopping that is encouraging institutions to the get their houses in order in terms of Title IX compliance, but it is certainly having that effect.
The University of Montana has slightly-more-than tentative plans to add women's softball to their roster of intercollegiate sports. The state of Montana has no DI softball, which isn't especially surprising given the limitations the weather puts on spring sports, but recent survey data show that softball is the sport undergraduate women would like to see added. Though Montana administrators maintain that they didn't think they "were close to being out of compliance" they knew that they couldn't keep administering the annual interest survey and not do anything. (Not sure why they held that belief in the first place. Simply collecting data does not make one compliant.) Not sure if the NCAA held similar beliefs about Montana's compliance. In the university's last reaccreditation administrators were apparently told that adding another women's sport would be "the right thing to do." Montana is able, it seems, to read between the lines. And its plans to move to the Big Sky Conference likely pushed forward the plan for softball. The Big Sky needs one more softball-playing school in order to hold a conference tournament. But softball is still a ways off, at least three years according to the athletic director. The program is estimated to cost about half a million dollars annually so funds need to be raised, a coach hired, and players recruited.
A different conference hop is forcing another school to do the drop/add shuffle. University of Nebraska-Omaha, a DII school (except for men's hockey), is making the move to DI. It has been invited to the Summit League and given the NCAA's lifting of the ban on division hopping that will happen in June, and that conferences hold the power to invite, UNO has decided to make the leap, something they apparently have been considering for a while now. Not knowing when another such opportunity will come along, the university is making sure everything is in order for the 2012 move.
But unfortunately football and wrestling will not be coming along. The university cited the immense costs of football and the inability to bring wrestling up to DI levels without a large amount of cash as the reason for the cuts. Good news though for a couple of the so-called men's minor sports: UNO will be adding men's golf and soccer.

University of Portland Cuts Golf, Violates Title IX?

University of Portland has announced plans to drop men's and women's golf, and to add women's crew. The article does not provide a reason for the cuts, other than to note that university officials claim the move was "not to cut costs." I'm not at all sure what that means.

While adding women's crew would bring the university closer to compliance under prong 1, its decision to cut women's golf still may violate Title IX. Portland's EADA report says that currently, there are 171 varsity athletic opportunities for female students, or 47% of the 363 opportunities overall. Yet women account for 63% of the student body. Even if we give Portland credit now for the 62 opportunities it plans to add in crew (and OCR does not count hypothetical future opportunities, as we recently noted), the total number of athletic opportunities for women would be 226, or 55% of what will be 410 total athletic opportunities -- still approximately 86 opportunities short of reaching 63%.

Failing to comply with the proportionality prong, Portland must be able to demonstrate compliance with either prong 2 (history and continuous expansion of opportunities for the underrepresented sex) or prong 3 (no unmet interest and abilities), which is difficult to impossible when you cut a women's team. Moreover, as our recent post also suggests, OCR does not look favorably on claims that a university is continuously expanding opportunities for women when it cuts an existing team and replaces it with one that is chosen because it's a good fit for the institution, rather than responsive to existing unmet interest. Thus, a decision to cut on sport and replace it with another that is chosen simply because its large roster offers better chance of Title IX compliance will probably not fly as a prong two defense.

If the female golfers were to challenge this decision, I think they would have a very strong case.

UNF adds women's golf

Remember when University of North Florida announced it was cutting its women's swimming and diving team? And then it fairly quickly reinstated the team? Yeah, I had to look it up, too.
Well it looks like UNF is going even further and adding women's golf to its list of intercollegiate sports. The team will begin competition in 2012.
No mention at all of the previous flirtation with cuts. The addition of golf makes sense when considering conference affiliation. Every other Sun Conference school fields a women's golf team.
The addition of this team brings UNF's total teams to 18. Again, no word on whether this addition is a precursor to cuts in the future. When UNF made its original announcement conference affiliation was one of the reasons for the cut.

Point Loma Nazarene University Cuts Four Teams

Point Loma Nazarene University in San Diego announced last week that this year would be the last for four of its sports teams: men's golf, men's track, men's cross country, and women's softball. PLNU reportedly explained the cuts as necessary to achieve compliance with Title IX.

This explanation seems to make softball the scapegoat for the cuts. For 29 years, the university had an arrangement with the city to use city land at Sunset Cliffs Natural Park for the team's former softball field. But the city voted in 2005 to return the land to its natural state as part of its master plan, causing the university to put its softball team off campus this year. No men's teams must play off campus, so an anonymous complaint filed with the Office for Civil Rights apparently alleged that this disparity constituted unequal treatment in violation of Title IX.

The complaint is believed to have triggered the university's decision to cut teams, as evidenced by students who believed that the complaint "backfired" on the women's softball team. "We’d rather play in unfair circumstances than have the team completely done away with," said one student quoted in the article linked above.

More likely, however, is that the university's decision was about more than just Title IX compliance questions regarding the softball field. I believe that PLNU could have gotten OCR to resolve the complaint by agreeing to make plans for a permanent softball facility in the future. OCR would have retained jurisdiction and followed up some years down the road to make sure that a facility was coming along. This kind of flexibility is typical of the softball field cases we follow on this blog. Moreover, OCR's public position is that cutting teams is a disfavored solution. I have never seen the agency encourage a university to cut teams as a way to achieve compliance.

Therefore, I don't think that PNLU's decision to cut teams was just about the softball complaint. I think it's more likely that the athletic department had overextended itself financially and needed to pare down athletic offerings to stay within its budget. Because the school's athletic offerings already disproportionately favored men (male students received 50% of the athletic opportunities while constituting 40% of the student body), Title IX necessarily factored into the decision of which teams to cut, as the law says cuts can't fall more heavily on whichever sex has fewer opportunities to start with. But this is not the same thing as saying Title IX caused the cuts in the first place.

We are used to seeing the Title IX blame-game when universities cut teams. But this time it seems particularly egregious as a particular team has become the scapegoat for the demise of four teams including its own. PLNU should take the responsibility for the cuts off of its softball players and offer a real explanation for why can't continue to fund all of its teams in an equitable and adequate manner.

Cutting track, adding golf at Seton Hall

Seton Hall has decided to cut men's and women's track and field due to budget shortfalls. This academic year will be the last for the teams--four in total because of the indoor and outdoor seasons. When making the announcement last week, the school also announced that it will be adding women's golf. They need to do so in order to maintain the 14-team minimum required of all Division I schools. It was also mentioned that the addition of women's golf will make the school Title IX compliant.

Cal State Bakersfield cutting four sports

California State University Bakersfield announced yesterday that due to budget shortfalls it will cut four varsity sports: men's and women's golf, women's tennis, and men's wrestling. The decision was based on CSUB's desire to remain a DI institution (which means they have to maintain at least 6 men's sports and 9 women's sports) and to eventually enter the Big West Conference which requires member schools to have certain sports such as volleyball and softball and baseball. The school is also bound by a court settlement (that applies to all the Cal State system schools) to maintain proportional gender equity in its athletics program. Currently CSUB is 65 percent female undergrads and 35 percent male undergrads.

Cuts at Duquesne

Duquesne University in Pittsburgh announced the other day that it will cut men's swimming and diving, men's wrestling, men's golf, and baseball. The combined cuts will result in a $1 million savings. One report claims that the athletic director has said this money will be spread out among the 16 remaining sports. Inside Higher Ed writes that the savings are going to "offset previous budget deficiencies." University officials say that the decision was based on finances, facilities, conference affiliations and support, gender equity, potential success, and overall student-athlete experience.
The people at Collegeswimming.com seem a little miffed that although only men's sports were dropped Title IX was not mentioned in an university press release. Well, one, they did mention gender equity. And two, Title IX is not a reason for dropping sports, it is a factor in which sports are eligible to be dropped--legally. And Duquesne is a small DI-AA school with just over 5,000 undergraduates. Women outnumber men and there is a 93-person football roster. These are some of the realities that schools have to consider. For such a small school to carry 20 varsity teams was, as we see, not sustainable in these economic times.
Duquesne also maintains that the decision will strengthen the overall athletics program.

Re-shuffling the program in West Virginia

The athletic department at Salem International University in Salem, WV has had some problems with ineligible players and institutional control. So while they are on NCAA and conference probation (including no post-season eligibility), administrators are doing some reorganization. The university, which has stated that is currently in good standing with Title IX, will drop four sports: men's and women's golf, women's volleyball, and men's tennis. The athletic director has said these four squads are mostly made up of athletes from other sports--sports that said athletes consider to be their primary ones. In other words, the dropped sports have had to do some heavy recruiting from within the athletic department and not very successfully. And though winning isn't everything, it does not seem that many of the sports--dropped or saved--have had a lot of success. So the university is also using this time to beef up the program. Forthcoming is a discussion of bringing back football. The SIU considered it in 2003 but decided to focus on restructuring academics, but now it is back on the table with a potential on-campus stadium that would also serve soccer and softball--both of which currently use off-campus facilities. Costs to start up and maintain a football program will be central to discussions as well as how to increase the participation opportunities to female students.

Nicholls State cuts women's golf

Down in Louisiana where state budget issues are forcing cuts in state institutions (familiar story by now) Nicholls State has dropped its women's golf team. The school is now down to 14 teams, the minimum number it can field and still be eligible for DI status.

No word on why women's golf was the team to get the ax and it is especially curious given the numbers Nicholls has reported to the Department of Education. (Remember, when an institution drops a team, it automatically disqualifies itself from compliance with prongs two and three.) But Nicholls is nowhere near proportionality. It's undergraduate student body is comprised of 60 percent women but female student-athletes only are afforded 40 percent of the athletic opportunities

MIT cutting 8 sports

MIT announced yesterday that it will cut eight varsity sports from what was once the largest (tied with Harvard at 41 sports) roster of intercollegiate sports in the country.
Citing current and forthcoming budget issues (the institution as a whole is looking to save close to $150 million in the next few years), the athletic department and student life jointly presented the decision. At the end of this year men's and women's ice hockey (sniff), gymnastics, wrestling, golf, Alpine skiing, and pistol. (I know that looks like only seven; I assume that another one of the listed sports has a men's and women's team thus equalling eights squads total. But even the NYT didn't pick up on the this-doesn't-equal-eight listing. Oh wait--it's gymnastics according to the AP.)
The announcement was not a surprise within the MIT community. Rumors of some cuts have been around for a few weeks now. Factors that went into the decision included coaching turnover, student interest, practice facilities, competitive opportunities, and overall program costs. (The cuts are expected to save just under $500,000.) No specific mention of Title IX concerns (student interest could loosely be considered a Title IX issue). We shall see if that becomes an issue.
With 33 remaining sports, MIT will remain the largest intercollegiate program in Division III and no further cuts are expected. The institution is urging affected student-athletes to join or form club sports.

Loss of sports at Quinnipiac

Quinnipiac College, it appears, is dropping three varsity sports: men's track, women's volleyball, and men's golf.
Much of the above article focuses on the Connecticut school's volleyball team and their reaction to the news including their disappointment that sportsmanship did not win out over revenue generating abilities. (Too bad there are no men on the volleyball team!)
It seems the women on the team will try to raise the $58,000 in operating costs.
But one first year player said she will be looking for a new school with a more solid program. Unfortunately given the economic situation many schools are facing, that search might be a little more difficult than she imagines.

Valparaiso to add two sports

Some schools taketh away and some schools giveth.
Pepperdine cuts two sports; Valparaiso adds three sports.
Not a lot of information here. Driven by student interest, the school has decided to add men's and women's golf and women's bowling.

Tuesday Title IX tidbits

In Indiana it appears that not too much has changed since the state's high school athletics association got a letter over a decade ago from the Department of Education about scheduling boys' basketball games. Girls' basketball, at that time, had 10.5 percent of their games scheduled on Friday nights. Today it is at 19.2 percent. Boys who play b-ball in Indiana have 41 percent of their games scheduled for Friday nights. Fridays are considered an optimal day and the preferential scheduling in favor of boys' teams is an issue. In addition to opportunity for ticket sales and other revenue-generating ventures, games scheduled on Fridays are good for players who do not have to worry about getting homework done that night and going to school the next day. No formal complaints, legal or otherwise, have been filed, but the availability of the above statistics suggests it wouldn't be hard to prove inequitable treatment.

Niagra University is adding women's golf to their list of varsity sports. No word on why--especially given the economic realities most insitutions of higher education are facing. A quick look at the insitutional data shows women comprise 61 percent of the undergraduate student body and have 51 percent of the athletic opportunities. There is already a men's golf team. Not sure if that was a factor as well. But good opportunity for female golfers in the region.

And speaking of tough economic times, some schools--especially DIII schools--are using athletics to boost enrollment, and thus bring in some tuition dollars, according to an article in Inside Higher Ed. Of course, it's not as easy as bringing in athletes. Some schools are adding football. Over 100 new student-athletes equals a nice boost to tuition revenues. But it also adds a lot more participation opportunities for men. There's also the issue of where recruiting dollars are coming from--for men and women. Athletic administrators attest to the success of bringing students to campus after they have had some contact with athletic department people--but recruitment costs money.

"It was never a money issue. It was a Title IX issue."

This is the explanation University of Delaware athletic director gave for his decision to cut men's indoor track and add (eventually) women's golf. Ironically, this statement follows on the heels of UD's announcement of its long-term strategic plan to revamp its athletic facilities. The university's first priority is to add an athletic performance center so that the football coach can impress recruits (that's not me being snarky. That's in the article). Subsequent priorities include rebuilding the football stadium, a project that will require it to destroy and reconstruct two other athletic facilities -- the ice arena and the outdoor swimming pool.

Here's why I think the timing of the two announcements are ironic and ill-timed. Cuts are always about money (they are also always about Title IX, because Title IX reasonably and appropriately protects women's athletic opportunities from getting cut when --and only when -- women have proportionately fewer opportunities to start with). First of all, there's no requirement that universities comply with prong one. Adding women's sports often results in compliance with either the other two alternative prongs (continuous expansion of opportunities for women, and effectivement satisfying the interests and abilitis of the underrepresented sex). And let me emphasize this point with respect to UD's case: adding golf alone (i.e., without cutting men's indoor track) could have given them a strong basis to claim compliance with Title IX under prongs two or three. This casts doubt on the AD's claims that cutting men's indoor track was a Title IX issue.

Second of all, there's no requirement that a university comply with the first prong by cutting men's teams. If a university wants to achieve proportionality it can either (1) add more opportunities for women so that the percentage of opportunities matches the percentage of women in the student body; or (2) cut opportunities for men until the percentage of opportunities matches the percentage of men on campus; or (3) some of each. Why would any university chose door number 2 or door number 3, rather than door number 1? When asked, they always say it's because they don't have the finances to choose door number 1. Thus, in UD's case, the AD's "It's not a money issue" statement smacks of incredulity. His university has announced that it will undertake an aggressive fundraising campaign in acknowledged hard economic times to renovate facilities that largely benefit football. It is about money. It's also about priorities.

Saying "there's no money" is one thing. Saying "we'd rather spend money on football than on providing a diverse array of athletic opportunities for both men and women" is another thing altogether. Unfortunately, I'm not optimistic that those eager to blame Title IX for university's misdirected priorities will probe the AD's statement deeply enough to recognize the difference.

The benefits of precedent

As Erin wrote yesterday, FGCU has settled three of the lawsuits it had on its hands. Pat Griffin's dubbing of FGCU as Fresno East certainly became even more appropriate with the news that FGCU had settled with former volleyball coach Jaye Flood, former golf coach Holly Vaughn, and former university counsel Wendy Morris.
I don't have much to add to the news or yesterday's post, but I thought it was important to point out that if all the trouble that Fresno State went through recently had not have happened; if some of those women had not come forward, we might not have seen this settlement.
I think it's just so lovely when precedent (not in the legal sense in this situation) actually works in favor of the historically oppressed and marginalized. It is unfortunate that Flood will not be reinstated as part of the settlement, though given that both Carl McAloose and Kathy Peterson who set out to get rid of Flood are still around, I am somewhat surprised that she would want to return. She's a winning and committed coach, I hope someone snaps her up. It will certainly be FGCU's loss.
There is, though, a seemingly loose end in the FGCU situation: Gina Ramacci. Ramacci, an assistant softball coach, filed a complaint with the school regarding the non-renewal of her contract. But last we heard, investigation into the complaint had gotten held up.
Overall it's a pretty good day for female coaches. Wishing I had some FGCU volleyball or golf gear to proudly sport on a day like today.

$3.4 Million Is "The Price of Retaliation"

We just learned that Florida Gulf Coach University will pay $3.4 million to settle a lawsuit filed by two former coaches, Jaye Flood and Holly Vaughn, who allege that they were terminated in retaliation for raising concerns about gender discrimination in the athletic department (more press about the settlement here and here). Their lawyer, Linda Correia called the 3.4 million figure "the price of retaliation."

Flood will get $2.965 million and Vaughn will take $435,000. FGCU has also agreed to submit to an independent review of Title IX compliance by an independent expert.

I am anxious to get this breaking news on the blog, so rather than summarizing the background here I will point you instead to our key prior posts: see here, here, here and here.

UPDATE: It was also reported that Wendy Morris's lawsuit recently settled for $850,000. Morris is the former university counsel who was terminated after she encouraged the university president to actually look into the coaches' complaints about gender discrimination before dismissing them as baseless. Background on Morris's case is here and here.

HS Golfer Awarded $19K in Discrimination Claim

Remember Lindsey Thomka? She's on the boy's only golf team at Cathedral High School in Springfield, Massachusetts, but in 2005, she wasn't allowed to compete individually in the state tournament for boys golf, despite finishing fourth in the regional qualifier. Last year, the Hampden County Superior Court ruled that Massachusetts Interscholastic Athletic Association's policy that excluded Thomka violated the state constitution's equal rights amendment.

Thanks to a ruling by the same court last week, Thomka's lawyer will get paid. Barring a successful appeal, MIAA must pay over $19,000 in attorneys fees to Thomka's family. Attorneys fee awards are important equalizers in discrimination cases like this one, where the discrimination, while actual and unlawful, does not cause a harm that can be remedied with money damages. Attorneys fees operate to deter institutions from engaging in unlawful discrimination, and they make it a little easier for civil rights plaintiffs' lawyers to stay in business. (Thomka's lawyer had not billed her family for his legal services.)

Thomka graduates this week and will play golf at Elon College in North Carolina next year.

[thanks, Jeff!]

Henin and Sorenstam Retiring

Tennis star Justine Henin and golf star Annika Sorenstam both recently announced their retirements. The story was covered today on National Public Radio's Morning Edition, with the commentary that although the sports of tennis and golf will miss these two athletes, the advent and success of Title IX has ensured that there is no dearth of exceptional women athletes coming up through the ranks in these two sports (or a host of other sports, I would add).