Oh, Quinnipiac

 It both seems like yesterday and forever ago* that Quinnipiac University became the center of a quite consequential Title IX case. In 2010 the university cut its women's volleyball team and, to remain in compliance with Title IX (the opportunities part not the rest of the laundry list) turn cheerleading into an intercollegiate varsity sport. We blogged extensively about it at the time and even went to one day of the trial! (Use the Quinnipiac tag for a look back.) More recently(ish) both Erin and I talked to Reo Eveleth for the podcast Sports Explain the World for their episode Cheering For Themselves about the case and the rise of cheerleading (and its manifestations STUNT and acrobatics and tumbling). Sadly we did not make the final cut but we were credited for the information we shared, which is appreciated.  

There were other issues raised in that case including roster management techniques (i.e., inflating roster number for compliance purposes). Ultimately the school was not allowed to eliminate the volleyball team or elevate cheerleading--in its then form--to varsity status for the purpose of Title IX. They did agree to put more resources into their women's sports which has certainly paid off (seemingly given that I have not seen the budget 😉) for the women's ice hockey team who has become a perennial contender for titles. 

As a reminder, a school can choose which teams to sponsor. The issue with 2010 Quinnipiac was that it wanted to trade out a recognized sport for an activity that was not considered a sport. 

The Quinnipiac of 2026 has announced that it is moving varsity women's rugby (added in...2011) to club status next year and creating an indoor/outdoor men's distance track program within its current offerings for track. The rugby team has started a Title IX lawsuit that includes a claim of retaliation because of the coach's complaints about inequities and of course, the actual inequities. It will be interesting to see how this proceeds. QU can cut any women's team it wants as long as it remains in compliance with proportionality and no one seems to be contesting that (that I have seen in the reporting; I have also not run the numbers which in itself would be complicated because it is unclear how many spots are being offered to men's track). 

In short, it seems like they have to prove that the status change was retaliation. That is a high bar based on what we have seen over the many years of retaliation claims. They might have great evidence--we don't know yet. A recent settlement that the school made with the women's lacrosse coach, who also claimed retaliation, might have given the team confidence that they could succeed. But even if they do, I am unsure whether this would result in the team being reinstated (versus receiving compensation or some other remedy). 

Of note is that the lawsuit names, among others, the current (newish) president of the university, Dr. Marie Hardin. I did not know that Dr. Hardin had taken an administrative turn (years ago apparently as a dean at Penn State). The last time I spoke with her was for her study on sports blogs. She is a sports communications scholar who has done a lot of work on women's sports and the role of gender in sports media coverage. It must be a little awkward for her to be on the other side of a Title IX lawsuit in her current position. Also, women's rugby is hot right now. Not a great look to decrease institutional support for it. No comment from President Hardin or the university because it is pending legislation. 

I do not predict this case will be as big as the cheerleading case, but I am curious to see what is coming.

* kind of like my blogging history. Le sigh. I am trying to do better. I have a lot of draft posts. I am posting slightly more often (i.e. more than once a year) on After Atalanta. 

A Roundup of Recent K-12 Discpline Cases

We often blog about discipline cases that involve college students who have been suspended or expelled for sexual misconduct. But secondary school students also use Title IX challenge discipline, as three recent examples show:

A female student in Louisiana was dismissed from the cheerleading team as punishment for "unacceptable behavior while in uniform" after she posed for picture with her uniform skirt raised and this photo was posted to social media. The student and her parents challenged the punishment, arguing that it violated Title IX because male student athletes were not punished as harshly for comparable behavior. The Fifth Circuit Court of Appeals affirmed the lower court's dismissal of her claim for lack of evidence indicating that the punishment was motivated by sex.  Specifically, the court focused on the lack of a cheer-specific male comparitor instead of comparing female and male students athletes more generally. The cheerleading team's "acceptable behavior" policy "did not contain language that could be construed as only applying to female cheerleaders" nor were there allegations that male cheerleaders were disciplined less harshly for similar infractions. Arceneaux v. Assumption Par. Sch. Bd., 2018 WL 2271077 (5th Cir. May 17, 2018).

A male student was suspended after he was reported to have threatened various harm to teacher who had given him a grade lower than he believed he deserved. The student sued, alleging among other claims that the discipline he received constituted gender bias in violation of Title IX. The court denied the school's motion to dismiss and permitted the claim to go to trial because there was evidence that a jury could conclude demonstrates gender bias-- namely, the fact that the other student who participated in the same conversation and also threatened to harm the teacher, who was female, was not suspended, as well as disputed evidence that the vice-principal who disciplined the plaintiff had once mocked the plaintiff for possibly being gay and failing to conform to masculine stereotypes and was allegedly biased against him for that reason. Gentry v. Mountain Home Sch. Dist., 2018 WL 2145011 (W.D. Ark. May 9, 2018)

A school prevailed on its motion to dismiss a Title IX claim filed by a male student who was challenging discipline he received for allegedly "groping" a female student a school dance. The court found that the plaintiff's allegations of sex discrimination were conclusory and lacked sufficient basis to warrant discovery. However, the plaintiff's claims of race discrimination in violation of Title VI were allowed because the plaintiff, who is mixed race, included specific allegations of white students who were not disciplined for similar misconduct. Doe v. The Blake School, 2018 WL 2108204 (D. Minn. May 7, 2018).

Chicago Public Schools making changes

In 2010, the National Women's Law Center named the Chicago Public School District as one of the worst offenders of Title IX (along with 11 other districts nationwide).

Last week, the district entered into an agreement with OCR that will add more opportunities in girls' sports. The district must now add opportunities in the majority of its 92 schools. The goal is to achieve proportionality by the 2018-19 academic year.

Some schools have further to go than others. The overall numbers from 2014 show an approximate 10% gap between enrollment and opportunities for girls. The numbers that truly paint the picture, however, are how many opportunities this gap encompasses. Twenty-five schools will need to add approximately 100 opportunities (per school!) to achieve proportionality. Lane Technical High School must add over 400. In total, though, the gap is equal to over 6,000 opportunities.

The district had tried to prove that they were meeting the interests and abilities of female students based on interest survey results of all students, but OCR determined that the low rate of response from girls was not proof of met interests. This decision reinforces to schools that to prove met interest, a serious and thoughtful process must occur.

Another positive message from the agreement: OCR refused to recognize the competitive dance and cheer teams that some schools attempted to count. Though this issue seems to have been well-documented, there are many schools--especially high schools--that continue to place their female-dominated dance and cheer teams in their Title IX numbers, despite OCR's statement in 2008 that activities which promote and support other sports cannot be counted.

OCR has placed various deadlines on the district. Though the ultimate goal is prong one compliance by 2019, 12 high schools must prove compliance with one of the prongs by August 1. Schools that do not have proportionality by the end of September must engage in a "comprehensive assessment" of student interests and use the results to create new teams or add opportunities to existing teams.

In short, OCR is demanding to see movement towards equity and to see it now. There are other requirements including a district Title IX coordinator specifically for athletics, information about Title IX and athletic opportunities for girls on the district web page, and the creation of a database to monitor progress.

Do Competitive Spirit Competitions Offer Athletic Opportunities that Count Under Title IX?

As the school year gets underway in Texas, high school students there have the opportunity for the first time to compete in a statewide cheerleading competition sanctioned this summer by the state's interscholastic athletic league (the UIL) on a one-year trial basis.  The four-day competition will be based on "what cheerleaders do during a pep rally or on the sidelines, without the high-flying tosses and difficult gymnastics found in competitive cheer" -- according to the UIL's executive director.  The league was reportedly motivated to add the cheerleading competition in order to  ensure that school districts' cheerleading programs comply with its health and safety regulations.

Ensuring the safety of cheerleading participants is an important objective, and I support the league's decision to create a "Game Day Cheer" competition in Texas on these grounds. Separately, however, it is important that school districts who decide to participate in this competition do so because they wish to enhance extracurricular opportunities for the students involved, and not because it counts as a source of athletic activities under Title IX. 

While the Department of Education's Office for Civil Rights does presume that activities recognized by the institution's athletic association count as a source of athletic opportunities that should be counted under Title IX, this presumption can be rebutted by evidence that the activity in question is not similar in nature to the other athletic opportunities supported by the institution.  The factors that are used as a the basis of this comparison include how the activity is administered (i.e., by the athletics department, like other sports), how the activity is structured in terms of having practice and competition schedule that is comparable to other sports, that opportunities to compete in a post-season tournament are, like in other sports, based on regular season results, and that selection for the activity is based on athletic ability.   The application of these factors raises doubts about the ability of Texas competitive cheer to count as a source of Title IX opportunities. Moreover, the judge in the Quinnipiac case  determined that the competitive cheer team at issue in that case did not count as a source of athletic opportunities under Title IX because too many of the team's competitions emphasized non-athletic factors such as spirit-raising.  Given that Texas's state championship deliberately emphasize spirit raising to the stated exclusion of athleticism, it would seem to be disqualified from the Title IX analysis for that reason as well.

To be clear, I found no suggestion that the UIL is promoting competitive cheer as a means for its member school districts to comply with Title IX. However, I did note that just as the UIL endorsed competitive sideline cheer, it rejected proposals to sanction water polo and bowling, both of which could have served as sources of athletic opportunities for girls.  I worry that this sends the wrong message to school districts that they can add competitive sideline cheer instead of other girls sports, when for schools lacking in compliance with the three prong test, this is not legally the case.  Any Texas school district that uses competitive cheer opportunities to suggest the appearance of gender  balance in the distribution of athletic opportunities is taking a legally vulnerable position that would be hard to defend to OCR or to a federal court. 

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."

Cheer Coach's Lawsuit Survives Motion to Dismiss

We blogged last year about Debbie Greenwell's lawsuit against the University of Alabama.  Greenwell had been the university's highly successful cheerleading coach until she was terminated from her position for reasons that she alleges are retaliatory for efforts to advocate for equal treatment for her student athletes -- a violation of Title IX.  Among other claims, she also alleges that she was paid less than male coaches with comparable credentials and job duties, in violation of the federal Equal Pay Act.  The federal district court recently denied the University of Alabama's motion to dismiss the retaliation and equal pay claims after determining that Greenwell's complaint stated plausible claims for violations of the respective laws.  Plaintiffs do not face a high evidentiary burden to survive a motion to dismiss, so the court did not need to analyze the facts of Greenwell's allegations in much detail.  However, if the university next files a motion for summary judgment, the court will have to determine whether there is evidence in the record to support Greenwell's case, namely, whether her salary was demonstrably lower than that of an appropriate male comparitor (for the equal pay claim) and whether there some evidence of a causal nexus between her advocacy for students and the university's decision to terminate her from the head coach position.  As I noted in the earlier blog post about this case, the fact that several years passed in between will make this harder to prove.

Decision: Greenwell v. Trustees of the University of Alabama, 2012 WL 3637768 (N.D. Ala. Aug. 22, 2012). 

Quinnipiac ruling upheld

The 2nd US Circuit Court of Appeals upheld the decision issued by federal Judge Stefan Underhill in 2010 which stated the Quinnipiac University could not count  competitive cheerleading as a sport for Title IX compliance purposes.
The decision is not surprising, though QU officials are, obviously, disappointed. They have committed themselves to the continued support of all their female student-athletes including those who play volleyball and those who participate in acrobatics and tumbling--the sport that competitive cheering became--despite its current non-sport status. QU has elected to go with acrobatic and tumbling and join the national association that governs this activity over participation in stunt--the other version of competitive cheer that is run by Varsity Sports, which oversees a host of different cheerleading activities.
Of note is that even though QU was ordered to keep its volleyball team, it did not retain its coach. Robin Sparks, who was part of the lawsuit against the school, was fired last spring.

Title IX Legal Scholarship Update

In the current issue of the BYU Education Law Journal, author Patrick J. McAndrews proposes a strategy for universities' compliance with Title IX without cutting men's teams.  Specifically, his three-part strategy includes long-term planning, roster management aimed at football, and aggressive surveying of students interest in order to demonstrate compliance with prong three.  Though this last point does not seem to take into account that the Department of Education's 2005 Clarification, allowing surveys to serve as the sole evidence for compliance with prong three, has since been repealed, the other suggestions are worthy of consideration.

Additionally, two articles in the current Sports Lawyers Journal are related to Title IX.  Author Andrew Weissler critiques the application of the three-part test to interscholastic athletics, and advocates for OCR developing a different interpretation of the effective accommodation regulation that takes the special circumstances of high schools into account.  In another piece, Ephraim Glatt argues that courts should not defer to OCR's 2008 Letter that provides guidance on what counts as an athletic opportunity for purposes of Title IX. He argues that factors such as athleticism and injury rates counsel in favor of counting competitive cheer as a sport for Title IX. 

Patrick J. McAndrews, Keeping Score: How Universities Can Comply With Title IX Without Cutting Men's Teams, 2012 BYU Educ. JL 111 (2012). 


Andrew J. Weissler, Unasked Questions: Applying Title IX's Effective Accommodation Mandate to Interscholastic Athletics, 19 Sports Law. J. 71 (2012).


Ephraim Glatt, Defining "Sport" Under Title IX: Cheerleading, Biediger v. Quinnipiac University, and the Proper Scope of Agency Deference, 19 Sports Law. J. 297 (2012).

Maryland cuts comeptitive cheer

The first DI school to raise the issue of cheerleading as a sport, Maryland decided last week to cut the team now known as acrobatic and tumbling or acro for short. The acro team is one of 8 varsity teams being cut at Maryland which is suffering from huge budget deficits.
In 2003 UMD made its cheer team a varsity sport, believing other schools would follow quickly. Others schools have followed (only 5 in DI though), but obstacles remain.
At the forefront is the "is it a sport" question. Sure--if it's treated like a sport. In other words (and in the context of intercollegiate athletics): does it exist solely to be a sport (and not a support system from other sports)?; is the team and the athletes provided the same level of support in all program areas as other existing sports? Meeting such conditions would clear the way for OCR to offer approval and thus make it count for Title IX which is what most schools are looking for: a cheap sport to even the numbers. (Though, as I have said before, I don't think a sport the highest rate of catastrophic injury will necessarily be cheap.)
But the NCAA is another obstacle. The activity formerly known as competitive cheer isn't recognized as a sport by the organization. So they won't count it yet--or sponsor a championship for it.
And the schism in the cheer community between acro and its competitor--stunt--makes NCAA approval an interesting prospect/process.
Check out the recent issue of TIME for more on the issue and to see Erin's quote.

No evidence of discrimination in SC high school

About nine months ago, we wrote about a complaint filed in Kershaw County, South Carolina where parents of a high school cheerleader felt the team was not being treated equally. Also there was some financial sketchiness about where the cheerleading team's money had gone.
At that time I noted that an OCR investigation would be interesting because cheerleading, in the way they are doing it in Kershaw County, is not recognized as a sport.
But this article, which states that the OCR investigation revealed no discriminatory treatment, does not mention this aspect at all. The complaint about access to quality coaching, funding, and facilities was apparently filed on behalf of all female student-athletes and thus, I would presume, does not apply specifically to the cheerleaders. But there was another complaint which mentioned similar issues that was filed in reference to the treatment the school gave to its softball team. The investigation into this claim also yielded no evidence of discriminatory actions or results.
Despite the confusion over which team was allegedly being discriminated against and whether cheerleading is a sport that receives equal treatment--it seems this case is closed.

Cheer Team DQ'd for Having Male Member

As reported in the Bleacher Report, a high school cheerleading squad in Michigan was retroactively disqualified from a competition for violating a league rule banning male athletes from female teams. The article goes on to criticize the Michigan High School Athletic Association, which governs competitive cheer and other sports in the state of Michigan, for employing a double standard, because girls are allowed to try out for boys teams at schools that do not offer a girls team in a particular sport.

As the article points out, MHSAA defends its rule by arguing that it's necessary to preserve athletic opportunities for those whose opportunities have historically been limited. Clearly MHSAA is invoking the Title IX regulations here, which provide that when a school "sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport." In other words, to have the right to try out for a cross-sex team, you have to be a member of sex whose athletic opportunities have previously been limited, and the sport in question is not a contact sport. There's no question that cheer is not a contact sport, but the other limitation to the cross-over exception clearly applies -- girls in Michigan have previously, and continue, to be underrepresented in athletics.

MHSAA's policy is not only legal under Title IX, it also does not qualify as a double standard, as the article claims. A double standard is when you extend different privileges to similarly-situated groups. When groups are not similarly situated, different treatment may be warranted. According to last year's participation report by the National Federation of High School Associations, there were 133,000 opportunities for Michigan high school girls compared to 181,000 opportunities for Michigan high school boys. With girls receiving only 42% of high school athletic opportunities in Michigan, it's not a double standard to say that girls, but not boys, can try out for cross-sex teams.

But even though MHSAA's policy is legal under Title IX, and deflects the charge of "double standard," I still would prefer participation rules that promote, rather than limit, cross-sex participation in sports. I think that girls and boys playing more often together, rather than apart, can ultimately contribute to breaking down gender stereotypes that are perpetuated when segregation is maintained. Schools need to address the gender disparity in opportunities, that is true. But rather than doing so by excluding boys from "girls" teams, the better approach is to commit to adding as many opportunities as it takes to match girls' interest in athletics, whether that be more freshman and JV teams in sports that girls already play, adding new girls' teams in sports that girls don't yet but could be interested in playing, and being more inclusive of girls on boys teams in sports where it is not feasible to add a girls' team.

Cheerleading Coach Files Title IX Lawsuit Against University of Alabama

Debbie Greenwell was the head cheerleading coach at the University of Alabama for more than 24 years, until, she alleges, she was terminated from her position in a dramatic fashion in response to her advocacy for equal treatment for her student-athletes. She has recently filed a lawsuit in federal court, challenging the university's conduct as discrimination and retaliation in violation of the Equal Pay Act and Title IX.

Though Greenwell's team was not a varsity sport, it was part of the athletic department. Greenwell was hired by and answered to the athletic director. She ran very lucrative cheerleading camps that made cheerleading the second most-profitable athletic department enterprise, after football. In 2008, her cheerleading camp netted $400,000 -- money that all went in to the athletic department general fund. Greenwell brought other perks and prestige to Alabama athletics as well, yet, she argues, the athletic department exploited her by refusing to pay her commensurately to other coaches. Apparently, the University justified paying Greenwell less than other coaches on the grounds that cheerleading program was not an NCAA sport with varsity competition. But Greenwell argues -- validly, in my opinion -- that for purposes of determining pay equity, what matters is that her responsibilities of running camps and the cheerleading squad required effort equal if not greater to that of other coaches. Additionally, U of A held Greenwell out as one of their "coaches" when it suited them, to associate the institution with her prestige.

However, Greenwell's complaint is light on a couple of details that will determine the validity of charges against the university. In particular, there are no details about how Greenwell's salaries actually compared to those of male coaches. Also, it's not clear exactly on what basis Greenwell alleges the required nexus between the issue of her salary disparity and the fact of her termination. The complaint states that she advocated for a higher salary once in 2003, and that another time in 2006, she and students complained about the inequitable lack of academic and other support for cheerleaders compared to other student athletes. Typically, retaliation cases succeed when the plaintiff engaged in protected conduct much closer in time to the employer's retaliatory conduct (Greenwell was terminated in 2009). We'll have to wait and see whether such additional factual allegations are forthcoming, or whether their omission is enough to warrant dismissal of her case.

What will cheerleading investigation in SC find?

Parents filing Title IX complaints with the Office of Civil Rights might be the trend of the month.

In South Carolina, parents of a cheerleader at Lugoff-Elgin High School started wondering where the money allotted for cheerleaders was going when they were told the squad would not be able to replace their ten-year old uniforms.

Even attempts by the cheerleaders' parents to fund the new uniforms were rebuffed. So the Gogans, parents of LEHS cheerleader, started their own investigation and found that there was no money in the cheerleaders' account and no explanation of where it had gone.

First things first. This is very sketchy. There is clearly something amiss here.
And the Gogans were right to question what the heck has been going on.

But they filed the OCR complaint because they wanted an explanation and greater transparency regarding how the school treats its boys' sports versus its girls' sports. Except that it does not appear that cheerleading is a sport at LEHS. Yes, the squad does engage in competitive cheer competitions. But they also sideline cheer. Their dual purpose is apparent in what does and does not get covered by the fees students must pay to participate. The cost covers uniforms and poms but not sneakers; and cheerleaders need two pairs: one for competitions and one "to cheer in."
I know that cheerleaders and parents and probably every administrator at LEHS do consider it a sport because it is a South Carolina High School League sanctioned sport. And thus they have a right to question the distribution of funds and the quality of the experience cheerleaders have.
But the Department of Education has said that a sport cannot be a sport if it exists, even in part, to support another sport. What has happened at the intercollegiate level is that competitive cheer squads (or stunt squads or tumbling and acrobatics squads--depending on which side squads are choosing) are no longer cheering on the sidelines. Sideline cheerleaders are now a different group.
So what will OCR find when it goes to South Carolina? Will this even be an issue?
When will the rules at the intercollegiate level trickle down to high schools thus making high school state athletic associations take notice?

Competitive Cheer Efforts Profiled in NYT

Today's New York Times includes an article on the competing proposals to the NCAA to recognize some version of competitive cheer as an emerging sport for women. One was submitted by a consortium of six universities already sponsoring varsity-level cheer, which they call "Acrobatics and Tumbling," while the other, called "Stunt" has been put forth by USA Cheer, an organization that has affiliation and common leadership with Varsity Brands Inc., the company that runs well-known competitions primarily for sideline cheer squads. According to the article,

The two proposals being considered by the N.C.A.A. share many similarities: the competitions themselves are longer and more standardized than in the past, athletes now wear uniforms more akin to those of volleyball players, and they no longer rally the crowd for another team.

However, they differ in other ways, like how to score the events and how many competitions to stage in any given season. The proposal being advanced by the handful of universities calls the new sport acrobatics and tumbling and uses a scoring system similar to that of gymnastics, with points based on degree of difficulty. The format backed by USA Cheer is called stunt and has a head-to-head format, with the competition divided into quarters.

One important distinction is the size of the teams. The proposal for acrobatics and tumbling, which was submitted to the N.C.A.A. late last year, imagines that an average squad size will number from 32 to 36 athletes, with a maximum of 12 scholarships. The proposal for stunt, which was sent in on Wednesday, envisions a squad of 20 to 30, with a maximum of 24 scholarships.

The article also addressed the potential Title IX implications of the NCAA's potential decision to award one or the other versions of competitive cheer emerging sport status. Athletic department administrators will now have another possibility to choose from in adding sports for women and to promote their institution's Title IX compliance by either satiating unmet interests and abilities or closing the disparity between athletic opportunities for men and women.

On the issue of competitive cheer's relationship to Title IX, reporter Katie Thomas admirably conveyed the position of mainstream women's sports advocates, which is that as long as competitive cheer is truly operating as a sport, with the same level of support, the same opportunities for varsity-level competition as any other sport, it ought to be considered a sport. This position is too nuanced for many reporters who seem to delight in setting up women's sports advocates the nemeses of competitive cheer, so I was pleased that this article conveyed a difference between being against competitive cheer, and being against/concerned about athletic departments using competitive cheer to avoid having to address existing disparities in traditional sports.

Competitive Cheer Article Published

Ego alert. My own article, "The Feminist Case for NCAA's Recognition of Competitive Cheer as an Emerging Sport for Women" has been published in the Boston College Law Review along with the other papers from its symposium last October focusing on the NCAA at its 100-year anniversary.

Here is the abstract:

This Article examines whether a university can count opportunities in competitive cheer to demonstrate compliance with Title IX. A federal court in Connecticut recently considered this question for the first time. Although it held that the sport as it currently exists is not sufficiently similar to other varsity sports to qualify for Title IX compliance, the decision has mobilized two separate governing bodies to propose more organized and competitive versions of competitive cheer as possible NCAA emerging sports. This Article argues that these proposals would satisfy regulators and the courts. It then discusses how competitive cheer has potential to improve Title IX compliance, in a way that would benefit women’s sports generally, by expanding the definition of sport to include those that are women-driven and by reclaiming as sport an activity— cheer—that was initially deployed to separate women from athleticism. In light of these reasons, as well as the burgeoning interest in competitive cheer at the college and high school levels, the Article concludes that the NCAA should promote the growth of competitive cheer by endorsing it as an emerging sport for women.

Bring in 'da Noise, Bring in 'da Funk: Cheer is here

Rather STUNT is here.
USA Cheering's season of STUNT began last week with a competition at University of Louisville featuring teams from the host institution as well as West Virginia University, and Moorehead State.
You might recall a certain schism in the cheering world that occurred after the announcement of the Quinnipiac University cheerleading decision last summer. USA Cheer, a for-profit entity that, to date, has controlled the majority of...well...all things cheerleading (competitions at all levels, apparel, gear, camps) in the US for decades. USA Cheer announced it was creating a sport called STUNT with the aim of meeting NCAA standards for an emerging sport and Title IX standards for what constitutes a sport.
They are seemingly in competition with a group comprised of university administrators seeking the same end goals. This group, the National Collegiate Acrobatics and Tumbling Association, has partnered with USA Gymnastics in an attempt to give competitive cheerleading sport status at colleges and universities.
Anyway STUNT has scheduled about 10 contest over the course of its season (the establishment of a season is part of the requirements) that lasts from January until April.
The first competition was deemed a success by its organizers:

"This competition was a huge success for USA Cheer and STUNT, the competitive morale and immense team spirit at the event was evidence that STUNT is becoming increasingly more popular and important in communities across the country," said USA Cheer Executive Director, Bill Seely.

The first link above explains the format of the competitions and how STUNT (not sure why the all-caps thing) is different from traditional cheer.

Qunnipiac Adds Rugby and Golf

The AP is reporting that Quinnipiac University filed its court-mandated Title IX compliance plan in federal court, in which it announced its decision to keep women's volleyball through 2011-12, s well as to add golf and rugby in order to balance women's athletic opportunities with men's. Quinnipiac will also retain its competitive cheer team -- renamed "stunts and tumbling" -- even though these opportunities do not (yet) count towards the university's Title IX compliance under the district court's recent ruling.

Qunnipiac's choice to add rugby is an interesting one. The NCAA designated rugby an "emerging sport" in 2002, as part of its initiative to support colleges' efforts to add athletic opportunities for women. The emerging sport designation means that sport will obtain national championship if 40 schools (across all three divisions) add the sport by 2012. In the meanwhile, opportunities added in that sport count toward NCAA requirements, as well as enjoy the presumption of counting as a varsity opportunity for Title IX purposes. Emerging sport status has successfully launched women's championships in sports like ice hockey and rowing, but rugby may not be following the same path. Though there is a widespread interest in rugby among female students, there is less interest from within the sport, which has a strong tradition of independence, to submit to institutional control. As a result, rugby has made slow progress towards the "4o by 2012" benchmark. By my count, Quinnipiac is only the sixth school overall, and the second in Division I, to add rugby as a varsity sport. If rugby loses its emerging sport status in 2012, Quinnipiac could potentially have two women's teams (stunts & tumbling and rugby) that do not count for Title IX purposes. We can only guess what effect this would have on the university's overall compliance strategy.

Some Reflections on the Media's Coverage of the Quinnipiac Decision

I've been reluctant to post links to the media coverage and commentary regarding the Quinnipiac ruling. This is because most of it that I've read sounds as if the author didn't even read the judge's opinion, but rather, used a generalized version of its conclusion as a starting point for his or her own view about whether cheerleading is a sport in some larger sense. Common themes included, "This judge must just think cheerleading is still about pom poms and good looks -- doesn't he know that it's different now?" "Let him try a partner stunt and then tell me it's not a sport!" "Doesn't this judge know how physically demanding cheerleading is?" "But there are injuries! Cheerleaders work hard! It must be a sport!"

Of course, anyone who read the opinion knows that physical athleticism, sports injuries, and hard work were not issues that were in dispute in this case. The judge didn't overlook those factor, he agreed that cheer athletes work hard at physically demanding, dangerous stunts. Additionally, however, the judge appropriately went on to evaluate the quality of the competitive cheer athletes' experience in comparison to that of other athletes' at QU, and finding them non-comparable for Title IX purposes. No other varsity team had to play against club and high school teams as their primary competition. No other varsity team lacked a championship that evaluated athletes on different criteria from what they had been using all season. The judge was not answering the "bargument" question "is cheerleading a sport?" He was evaluating one program, and determining its lack of similarity to other sports that that institution includes in its Title IX equation. It's not as sexy when you say it that way, so no wonder the media turned it into something else.

But this morning two articles about the decision came across my screen that I thought were worth sharing. First, here is an article titled "Victory In Defeat" from the Ohio State All-Girls Cheerleading website. This commentary is proof that some from the cheerleading community read the decision for what is was: not a dis on contemporary cheer, but a "blueprint ... that identifies the shortcomings of the current collegiate model and nearly walks the NCSTA [National Competitive Stunts and Tumbling Association, the governing body of competitive cheer] by hand towards the necessary policy implementations and other solutions needed to bring the sport into compliance with T9."

Second, Nancy Hogshead-Makar of the Women's Sports Foundation published this op-ed on ESPN.com, which takes issue with another media trend of using the Quinnipiac decision to denigrate Title IX and the role of courts in enforcing it. Responding particularly to Gregg Easterbrook's column on the same publication (in which he, among other things, cried that "playing volleyball is not a civil right," Hogshead-Makar responded by putting the right to equal athletic opportunity in schools into proper context:

[T]he results of a large body of research continues to confirm with certainty that a sports experience leads to higher educational attainment and success in the workplace, life-time lower rates of obesity, breast cancer, osteoporosis, heart disease and depression. (See the Women's Sports Foundation's report, Her Life Depends On It II). Sports for both boys and girls are an investment in our collective future that we're all paying for with tax dollars, as student loans are the lifeblood of most schools. Title IX need not justify itself. Its results over the past 30 years, allowing a new generation of women to develop and showcase their abilities through education, should calm the critics. Instead of these repeated attempts at fault-finding with a 38-year-old law, let's work together to fulfill the promise of Title IX for both men and women, and increase the number of sports opportunities for all of our youth.

Glad there was some media commentary about the Quinnipiac ruling worth sharing on the Title IX Blog this morning.

Some Say Delaware State Equestrian Is Safer After Cheerleading Ruling

This article in Delaware Online suggests that the recent Quinnipiac ruling about the Title IX status of competitive cheer will make it harder for Delaware State to prove that its decision to terminate equestrian did not violate the law.

Actually, I don't think the ruling will have much legal effect at all. Unlike at Quinnipiac, Delaware State's proposed opportunities in cheerleading do not even come close to closing the proportionality gap. Its argument that adding cheer demonstrated prong 2 compliance was never a viable argument, in my opinion. No court has interpreted "history and continuing practice of expanding opportunities for the underrepresented sex" to be satisfied by a school that cuts a viable women's team.

But either way, some are now predicting that Delaware State is now more likely to cancel its plans to end its equestrian program.

Interestingly, the article provided a little insight into why Delaware State, an HBCU, has an equestrian team in the first place:

Many see the equestrian legal troubles as an unfortunate legacy of former president Allen Sessoms' administration. In 2005, a faculty steering committee, chaired by Hoff, recommended field as a better way to expand sports for females, but Sessoms later sold the group on equestrian.

The sport has proven to be more expensive than expected, costing close to $600,000 per year.

"Of greatest concern to DSU is the fact that so little of this money goes to student welfare," DSU lawyers said in court documents. "On the contrary, most of the expenses are for the housing and care of the horses."

Daniel, the Title IX consultant, said he would have advised against a school like DSU starting equestrian. Charlie Wilson, president of DSU's faculty senate, said he and other faculty found the creation of the team "curious" and regarded it as a "pet thing" of Sessoms' administration.

Quinnipiac Volleyball Players Win Title IX Decision

Today Judge Stefan Underhill granted Quinnipiac University volleyball players an injunction that will allow the team to exist through the 2010-11 season. In reaching this decision, the judge determined that Quinnipiac's decision to terminate the volleyball team violated Title IX because it resulted in inequitable number of athletic opportunities for women. Quinnipiac argued in its defense that it satisfied the proportionality test (offering the same percentage of athletic opportunities to women as matches their representation in the student body) even after cutting volleyball, in part because of Quinnipiac's addition of 30 additional athletic opportunities in the sport of competitive cheer, brought the school into proportionality.

But today, Judge Underhill agreed with the plaintiffs that these opportunities should not have been counted, since competitive cheer is sufficiently different from other varsity athletic opportunities at Quinnipiac. The biggest difference is that the competitive cheer team does not have a schedule that "reflects varsity abilities" -- as demonstrated by comparison to other Quinnipiac teams. No other varsity team at Quinnipiac competes predominantly against other school's club teams and non-scholastic teams, as the competitive cheer team does. No other varsity team competed under different sets of rules, depending on the opponent. All other varsity teams had to qualify for a championship via a progressive playoff, while the national championship in which Quinnipiac cheer competed (NCA Nationals) was open to all squads -- including sideline squads whose only competition for the year was Nationals. No other varsity team was evaluated, in part, by a nonathletic factor such as the 45 second "spirit" segment at Nationals, in which teams are judged by crowd reaction and use of props.

The judge's ruling does not foreclose that changes in cheer over time could lead to a different result in the future. However, the court's reasoning does call into question any school that is currently relying on competitive cheer to demonstrate compliance with Title IX. That is, the court's reasoning applies as well to other varsity cheerleading schools (Maryland, Oregon, Baylor, and a couple of others) as it does to Quinnipiac, should those schools' reject a women's club team's petition for varsity status, or, like Quinnipiac, decide to cut a viable women's team.

After adjusting Quinnipiac's proportionality calculation to exclude 30 opportunities in competitive cheer, as well as 11 opportunities in women's track (who the judge said should not have been counted because they were injured, and/or red-shirted), the judge calculated a 3.62 percentage difference between the percentage of athletic opportunities for women (58.25) and the percentage of women in the student body (61.87). The judge then determined that this difference was not "substantial proportionality" necessary for compliance with prong 1. This aspect of the decision is highly significant, as it is, to my knowledge, the lowest percentage that has been deemed outside the realm of substantial proportionality, and it dispels the myth-rumor that anything within 5 percentage points is OK. The judge reasoned that 3.62 percentage points actually amounts to 38 female athletes -- more than the size of any of Quinnipiac's existing women's teams. In that context, 3.62 is not substantial proportionality.

Overall, the 95-page decision was a win for the volleyball team (who gets to play another year) and a win for Title IX, because it protects against the possible manipulation of gender equity statistics by labeling as sport existing women's noncompetitive activities. The judge also expressed skepticism about Quinnipiac's triple counting of women's opportunities in cross country and and indoor and outdoor track, given the track team's status as a "mere adjunct" of cross country (though ultimately found insufficient evidence to discount Quinnipiac's figures any further on these grounds). But this aspect of the decision, like the decision overall, puts schools on notice that athletic opportunities for women must be actual and not illusory.