Settlement at Iowa

[this is officially old news now but still important to note]

It was always going to be a toss up. Which would come to an end first: the pandemic or the lawsuit against University of Iowa? 

University of Iowa for the...win? 

The lawsuit, brought by women athletes at the school in the wake of the attempted cuts in fall 2020, has ended with a settlement. The women's swimming and diving team had been reinstated while the lawsuit was pending and it will continue on for at least seven years. (Terms of the settlement state that it cannot be cut until then.) AND...

...there will be a new women's wrestling team!! Iowa will be home to the first women's wrestling team in any of the power 5 conferences. And that is quite fitting given Iowa wrestling's renown. Let's give an enthusiastic cheer:

HIP HIP HOORAY!

And now the "really?" part of this post. 

The conditions of the settlement, in addition to keeping women's S&D for seven years and $400,000 which will cover expenses, was to add another women's team and the administration chose wrestling. According to Athletics Director Gary Barta, conversations about adding women's wrestling had allegedly been happening prior to the lawsuits and settlement. However:

“Were it not for the Title IX lawsuit, I wasn't ready to add women's wrestling yet,” Barta said. 

[How does this man still have his job? Has any athletic director had so many lawsuits during their tenure as Gary Barta? (Probably, but still, I reiterate past statements about his Teflon-ness.)]

So this historic thing is about to happen and because Gary Barta is the athletic director and it will happen under his watch, he will get credit for it even though it was 1) the result of a lawsuit over the denial of sporting opportunities to women and 2) he didn't even want to do it. 

A significant, but less touted condition of the settlement, is a roster cap on women's rowing. The team cannot exceed 75 spots. Roster inflation has long been an issue and especially so in women's rowing which some schools have used to "balance" out the (inflated but widely accepted as normal) football rosters (approximately 120 students). 

The lawyer for the plaintiffs expressed hope that the capping trend would continue thus creating more quality experiences for women athletes.

SMU Rowers' Lawsuit Challenges Inequitable Medical Treatment

In a lawsuit filed yesterday, eight current and former members of the women's rowing team at Southern Methodist University allege that the university violated Title IX by giving female athletes less medical attention than their male counterparts. The lawsuit, which also includes a negligence claim, seeks damages related to hip injuries that they suffered as a result.

According to the press, the plaintiffs allege that athletic department trainers and medical staff failed to diagnose their injuries and treated them inadequately once they had. The injured rowers were also silenced by a culture of "intimidation and shame," they claim. One rower gave an example that she was to injured to row, walk, sit or stand for extended periods of time.  Instead of seeking medical help, her coach asked her if her mattress was too firm. The rowers suffered labral tears in their hips, which they allege is a rare injury in the sport of rowing, but which afflicted up to fifteen SMU rowers. The high incidence rate, they claim, resulted from the improper rowing technique that their coach employed, combined with the lack of medical attention. One rower told the press, "I am almost positive that if there were 15 football players or 15 basketball players that had the same injury by the same coaches in eight years, I do not believe [SMU] would have let that go on." 

Title IX requires athletic departments to not only provide an equitable number of opportunities to male and female athletes, but also to ensure that men's and women's programs receive equal treatment. Title IX regulations itemize a list of factors that comprise the equal treatment analysis, and access to medical treatment is included on this list, along with things like facilities, uniforms, equipment, scheduling, quality of coaching, and others. In this case, the plaintiffs allege, SMU added rowing to balance the numbers, but did not follow that up with the necessary investment of resources needed to ensure equal treatment. 

It's common for judicial and administrative cases involving equal treatment to uncover evidence of inequitable access to medical treatment, but I'm not aware of any other lawsuit seeking damages for specific injuries that resulted from the inequality.

Temple Restores Crew and Rowing

Reversing course on an announcement made last December, Temple University will not eliminate the sports of men's crew and women's rowing, after it was announced that necessary improvements to the teams' boathouse would not incur cost to the university.  Instead, the $5 million renovation will be fronted by the City of Philadelphia and a generous trustee.

The other five sports that were named for elimination -- baseball, softball, men's gymnastics, and men's indoor and outdoor track and field -- will not be restored, according to Temple's president.  In refraining to revisit the elimination of these sports, the university appears to disregard efforts that proponents of gymnastics, softball and baseball have also made to secure donated facilities and other pledges of financial support to defray the cost to the university of supporting these teams.  This appears to underscore Temple's explanation that the cuts derived from multiple factors, including cost, facilities, Title IX, and student-athlete welfare.  The Title IX explanation only goes so far. Coupled with the fact that Temple had offered proportionately more athletic opportunities to men than to women, Title IX explains only why it was necessary to eliminate more men's opportunities than women's, but Title IX does not explain why cuts were necessary in the first place, or why seven (now five) teams had to go.  It's also been suggested that Temple is slimming down its athletic department in order to fit in with its new, more competitive athletic conference.  In the long run, the university seems to want fewer, more competitive programs than a variety of programs that compete for less prestige.  That's apparently what they mean by "student-athlete welfare."

USC Settles Title IX Complaint about Rowing Facilities

After a 14-year investigation, OCR has determined that the University of Southern California violated Title IX by providing inferior facilities to the women's rowing team, which produced a significant disparity in the overall treatment of men's and women's athletics.  The rowing team uses an old boathouse 20 miles from campus, which is described as a "garage-like structure" with open and exposed walls, no designated locker room, and a single bathroom available for athletes and spectators alike. Rowing is the largest women's sport at USC, a factor that influenced OCR's analysis of the university's compliance.  Men's golf apparently also lacked a designated locker room, but with only nine male golfers so affected, that fact did not balance out the inferior rowing facilities provided to the 62-member women's crew team.

In response to OCR's findings, USC entered into a settlement agreement requiring it renovate the boathouse by January 2014. The new boathouse will include a designated locker room, seating for spectators, a lounge area and office space, and additional restrooms to accommodate spectators of both sexes. 

(If you're wondering about why the investigation took so long...so am I. A Department of Education spokesperson reportedly told the Chronicle of Higher Education that it took 14 years to investigate the complaint, which was initially filed by California NOW, due to the "complexity of the case, which required significant data analysis."  Yet equal treatment complaints involving facilities are fairly typical, and they usually don't take this long. A more compelling explanation would serve OCR well. Because no one's going to file a complaint if they think it's likely to take 14 years to resolve.)

A case study of roster management and prong two

The University of Georgia's student newspaper has an article on how the school approached compliance with Title IX and what this means for the athletic department, student-athletes, and club sports. Regarding the latter, it seems that many club sports are waiting for their call up, to use a baseball metaphor, to "the show." In other words, because UGA chooses prong two compliance (expanding opportunities) and has added teams in the past to meet this version of compliance, some women's club teams are wondering when it might be their chance. Women's rowing has been especially hopeful. Rowing has been used--with mixed results and mixed motivations--as a sort of panacea for football problem that most schools that field a football team have: an imbalance of opportunities.
But rowing--along with other UGA club sports--is losing hope. There has not been a new women's team added since 2002 and no talk of adding another team for 5-6 years according the rowing coach. UGA has opted to add spots to existing women's teams instead. This practice, referred to as roster management, has come under scrutiny, not because it is not a viable way to comply, but because it is often not done correctly. The NYT ran an investigative piece in 2011 about the roster management scams happening at some schools--adding athletes without them ever knowing, adding athletes and then dropping them once the season starts (and rosters are in), using male practice players to pad women's numbers. And it received a great deal of attention. We hoped this national coverage would put schools who were engaging in these practices on notice. And it may have.
It does not appear that UGA is doing anything wrong. But we have to wonder just how many spots they can add to existing teams without overburdening the teams and taking power over roster size out of a coach's hands. And we should ask how equitable this practice is. Are we asking the coaches of men's team to increase their roster sizes, to deal with additional players? How big can one make the softball team and still provide student-athletes with a comparable experience? Equal opportunities is only one area of compliance. A school cannot simply add spots while not guaranteeing equal treatment.
Of course there is no guarantee of equal treatment when a whole team is added. This has actually been a problem, especially for women's rowing teams. They get elevated to varsity status but wait years for facilities, for better equipment, for equitable travel situations. Some even have to file complaints with OCR or lawsuits against the school in order to get what they were promised.
Again, this has not happened at UGA, maybe in part because UGA has been careful about when and which sports to add. The question is, how many spots do they have to add a year, every two years, every three years, in order to remain prong two compliant? At what point does the rowing team--or any other club team--have a viable argument that the school is not providing equitable opportunities?

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.

Irvine forced to cut sports

The University of California Irvine is looking to cut $1 million from its budget by doing some reshuffling and, unfortunately, by cutting sports. Five programs will be discontinued next year: men's and women's swimming/diving, sailing, and women's and men's rowing. Given the current fiscal crisis in the country in general, but of course in California, the cuts are not surprising and likely not the last we will see out of CA schools.
No word on how this will affect UC Irvine's adherence to California state school's equity requirements.

Western Washington Has Too Many Women's Sports After Cutting Football

In January, Western Washington University announced its decision to cut its NCAA Division II football program to help reduce the athletic department's deficit. While the university's records apparently show the program breaking even in 2008, university officials estimated that $10 to $12 million dollars would be required to sustain the program going forward, and considered such an investment unrealistic in today's economic climate. It was reported Tuesday that efforts to appeal to the state legislature to save Western football have failed.

The article also reports that Western now plans to reduce the size of the women's track and rowing teams in order to restore a proportionate balance of athletic opportunities between the sexes. The loss of 96 football players brings the percentage of athletic opportunities for men to 36%, which is out of proportion with the percentage of men in the student body (44%). Nor can Western rely on the alternative compliance prongs; since men are now the "underrepresented sex," cutting football likely precludes the university from claiming compliance under prong two (history and continuous practice of program expansion for the underrepresented sex) or prong three (full and effective accommodation of the interests and abilities of the underrepresented sex).

The Athletic Director admits, however, that the cuts to rowing and track will actually benefit those teams, which had been stretched to provide a more-than-comfortable number athletic opportunities so that the university could claim compliance via proportionality. This is an interesting point, as it highlights the common and often overlooked tendency by athletic departments to squeeze opportunties of existing women's team, rather than creating new opportunities in new sports, or expanding the capacity of existing teams in a meaningful way. While the appearance of compliance exists, the result is still discriminatory. Here's a metaphor: If a parent buys six toys for her son, and six for her daughter, what should she do for when another daughter comes along? She could buy six more for the new child, or make each of the older children give her two of theirs. Or, a parent could do what Western and other schools have done: make the daughter break each of her six toys in half to give half to the younger sister. Yeah, each kid has 6 toys. Proportionality achieved. But the daughters' toys are clearly inferior to the son's at that point.

Take away some of the son's toys, and you can justify giving the daughters fewer toys too. Only now there is room to make theirs somewhat higher quality. And thus, Western has created a situation where it can claim women benefit from cuts to men's teams. Notice how even when proportionality is being applied in reverse ("forcing" cuts to women's teams, instead of men's) the usual discourse ensues?

End of the Road for Cincinnati Rowing?

It seems that the final shoe has fallen on the University of Cincinnati rowers' efforts to reinstate their team. As readers know, Cincinnati cut the rowing team (and replaced it with lacrosse) in the fall of 2006, coincidentally (or not?) after the rowers filed a complaint against the University for failing to provide adequate equipment and facilities. The rowers then challenged the University's decision to cut rowing, arguing that it was unlawful because the reduction in opportunities for women athletes would bring the University out of compliance with Title IX, and because of the seemingly retaliatory nature of the decision.

In September, the rowers lost their effort to obtain a preliminary injunction against the cut when they failed to convince a judge that they were likely to win on the merits (a necessary showing for an injunction). The rowers attempted to show that the University would be out of compliance with all three prongs, including proportionality, using a proportionality score that was based on the "duplicated" athlete head count (where athletes who participate in more than one team count once). But relying on the unduplicated count (number of actual athletic opportunities), that OCR says is correct, Cincinnati's athletic opportunities are proportional even after cutting rowing. So the judge denied the preliminary injunction, predicting that the rowers would not win on the merits.

This turned out to be the right call. Last week, the court granted the University's motion for summary judgment and dismissed the rowers' claims. The court affirmed that using unduplicated head count, the university complied with prong one and thus could lawfully cut a women's team. And even though the rowers seemed to no longer be pressing their argument that the University cut rowing in retaliation for their efforts to secure better equipment and facilities, the court noted "the absence of any evidence that the University's actions were motivated by exercise of Title IX rights."

I think it's unlikely the rowers would appeal this decision. An appellate court is unlikely to reverse the lower court's decision to follow OCR's instructions on how to measure proportionality. And even if the rowers could convince the district court that the retaliation claim was still active, the judge has sent a pretty clear signal that he doesn't think that argument has merit.

It must be terribly disappointing for these rowers, or any student athlete, to lose their team in the middle of their college career. I hope they are able to stick with the sport as a club or by transferring to other programs. Perhaps Cincinnati, and all universities that cut active sports, could have done a better job at long term planning to avoid the situation of having to downsize. But on the legal question, however, this case reaches the right result. Title IX protects women's sports from cuts when (and only when) women get less than their fair share of athletic opportunities. It does not afford this protection when the university is in compliance. Nor should it -- out of fairness to all teams, and because the autonomy that comes with compliance helps motivate universities to comply.

Decision is: Miller v. University of Cincinnati, 2008 WL 203025 (S.D. Ohio Jan. 22, 2008).

Apples and Oranges

Club sports at most schools are funded by a recreational services department, while varsity intercollegiate sports are funded by athletic departments. This is the case at the University of Iowa. Recreational Sports, however, can usually not afford to completely fund a team and that team looks elsewhere for money: fundraising, dues, etc.

According to the student newspaper, The Daily Iowan, the men's rowing club at Iowa has made a request to the student government association for money to buy a new shell. This all seems reasonable even though student government has never before funded a club sport. They seem open to the possibility.

What is curious is that in the presentation to the association, the team plans to relate what the women's rowing team receives and suggest that Title IX is to blame for the men's current situation of poor equipment and large out-of-pocket fees.

But women's rowing at UI is a varsity sport. It was made a varsity sport in an attempt to comply with Title IX. That has nothing to do with the men's team.

The argument that the women rowers get more money than men rowers is inapplicable in this case, since nothing in Title IX requires intra-sport equity. Moreover, team captain Meylon's comment that "Since [Title IX] men's rowing at Iowa has been on a downward spiral" seems purely sour grapes in this situation. If Meylon and others are sore that men's rowing does not have varsity status, blame the excessively large football roster the university has or the millions of dollars the administration pumps into the football and basketball programs.

I was a little surprised that both the newspaper and the team members pursued this line of reasoning. After all, they have one of the foremost experts on Title IX, Dr. Christine Grant, right there. But it does not seem anyone spoke with her.

Court Won't Enjoin Rowing Cut at Cincinnati

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

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

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

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

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

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

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

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

The aftermath

A picture is worth a thousand words. And if you look at this picture of Fresno State AD Thomas Boeh as he answers questions from the media about Title IX, gender equity, discrimination complaints, and adding more women's sports you can probably figure out what some of those words are.
The Fresno Bee reports that the university is considering adding new women's sports to equalize the amount of financial aid provided to female student-athletes. The school already offers the maximum amount of scholarships per sport mandated by NCAA so the only option is to add sports. Water polo, rowing, and bowling are all under consideration.
In other news that has come in the aftermath of the Lindy Vivas verdict: state Senator Dean Florez who has been leading the hearings on gender discrimination will visit Fresno State and talk to athletes and coaches; OCR officials have made some recent visits to campus though we don't know exactly why or what they were looking for as Boeh would not provide details of the visits.

Another Cincinnati Rowing Update

You'll recall from prior posts that the University of Cincinnati cut its rowing team last November, a decision it maintains was not related to fact that the team had filed an administrative complaint with OCR alleging that the university's failure to provide the team with proper equipment violated Title IX.

The team then sued the university in federal court, claiming that the cut violates Title IX as well. Last week, the team filed a motion for a temporary restraining order, which would put on hold the University's decision to discontinue the team.

In deciding whether to grant the TRO, the judge will consider among other factors the likelihood that the team will succeed on the merits of its case against the University. In other words, the court's decision on the TRO might preview whether it thinks cutting rowing violates Title IX. Before its decision to cut rowing, Cincinnati had proportionality points to spare: It has a student body population that is 47.5% female and a student athlete population that was 49% female. Cincinnati may have cut rowing, but it is adding lacrosse, so the percentage of female athletes drops slightly* to 46.6%, still within 1 percentage point of proportionality.

Courts agree that cutting viable women's teams violates Title IX when the school in question is attempting compliance under prong three (satisfying interests and abilities) not prong one (proportionality). But Cincinnati appears to comply with prong one even with the cuts. Thus, it's not obvious from the numbers that the rowers have a viable case. We will see if the court agrees.

* I checked a couple of other Division I women's lacrosse teams in the midwest and they seem to have around 28 players. Cincy had 54 rowers, so the net loss of female athletes was 26.

The Benefits of Benefactors

ESPN.com reports that Bucknell's wrestling team is having a terrific year considering their roster is made up entirely of freshmen. Why? Because Bucknell only this year brought back wrestling to varsity status after making it a club sport in 2002 because of the need to make their athletic opportunities more proportional.
One rarely hears of a sport being brought back (without legal intervention). In fact I have never heard of it. So what happened? Was there a significant drop in the number of women in the undergraduate population? Did the athletic department add too many women's opportunities and have to compensate by bringing back wrestling?
Nope--an alum of the school and the wrestling team came through with some big dollars (around 5 million) and created an endowment to reinstate and keep wrestling at Bucknell alive. (It's quite an incentive to encourage academic excellence among student-athletes too. This guy isn't a professional athlete--he's a businessman. I guess we don't know how much he "earned" himself versus how much was inherited.)
Though ESPN did a decent job describing Title IX mandates, they too fell into the habit of making wrestling some kind of Title IX martyr. This was enforced by a quote from a Bucknell wrestler:
"Just from what I've seen and what I know, wrestling seems to be the biggest target when it comes to Title IX," said Bucknell 197-pounder Eric Lapotsky.
If you're a wrestler what you see and what you know if probably pretty biased toward a Title-IX-hurts-wrestling viewpoint. But, as Ebuz reported here in her review of Andrew Zimbalist's book, wrestling numbers actually dropped off in the 80s and early 90s when Title IX was rarely, if at all, enforced.
What remains a little unclear is how all the numbers work out. Re-instating the wrestling team, even if the money is there, does not solve the problem of opportunities--measured in actual spots on teams--not dollars.
The article makes the donor appear to be so magnanimous as to designate part of his donation to women's sports. But my guess is that when the author writes that "[p]art of the gift established a component of the women's rowing team..." that what that really means is that the money went to increasing the number of women on the crew team by, hmm...maybe ten (the number of men on the wrestling team). Increasing the number of spots on an existing team is much cheaper than establishing a new team that needs coaches, trainers, equipment, recruiting dollars, etc.
The whole thing is an interesting "solution" but of course not widely applicable unless all schools in Title IX trouble have wealthy donors willing to endow a threatened men's team and give money to the women's athletic program.

Cincinnati Rowing Litigation Update

The rowing team may have been cut, but its lawsuit against University of Cincinnati moves along in federal court. On Monday the district court judge decided that the case could proceed as a class action lawsuit, concluing that "a class defined as 'all current and future members of the University of Cincinnati women's rowing team' would satisfy the prerequisites of Federal Rule of Civil Procedure 23 for certification of a class."

Civ Pro fans can find the opinion at 2006 WL 3591958.

(Thanks for the citation to Geoff at Sports Law Blog.)

U of Cincinnati Rowing Cut Independent of Lawsuit

Last week the University of Cincinnati announced that it would be cutting women's rowing team and replacing it with women's lacrosse.

This decision prompted speculation that rowing was in the crosshairs because of its pending lawsuit against the University, prompting the AD to declare that the decision "was made independent of the lawsuit," done after a lot of thought and "research and with the best interests of this department and this university."

The pending lawsuit, filed last year by members of the rowing team, seeks equity in facilities and support for women's sports in the form of a boathouse and adequate practice space, additional equipment and coaching staff, and equal opportunity for scholarships.

Honoring Ernestine Bayer

On Sunday, a memorial flotilla in New Hampshire honored rowing pioneer Ernestine Bayer who died last month.

Bayer, who later became the first woman inducted to the rowing hall of fame, started organizing competitive rowing teams for women in the 1930s. Title IX, passed in 1972, deserves much of the credit for the popularity of women's rowing on college campuses. But Bayer--who had to get her husband's permission to row--was inspiring women to break out of their socially prescribed role by participating in sport, long before the quest for proportionality compliance motivated colleges to add women's rowing teams as a way to offset men's football.

Teams from MIT, BU, Northeastern, and Radcliffe prepare to dedicate boats in Bayer's honor at the Head of the Charles this weekend. This is fitting, as we who honor Title IX for creating opportunities for women to row, play, run, swim, skate should continually be reminded that Title IX is only the most recent history of a much longer struggle to open sports to women.

(photo of the memorial flotilla from Foster's Daily Democrat.)