No Summary Judgment in Lock Haven University Athletics Case

A federal court in Pennsylvania denied parties' motions for summary judgment in a case challenging gender-based inequities in athletic opportunities at Lock Haven University. The university had announced plans to terminate its women's swim team and demote field hockey to Division II.

The evidence in the case allowed the court to rule as a matter of law that Lock Haven did not satisfy either of the first two parts of the three-part test for effective accommodation. Though "only" 3.36 percentage points separated the percent of athletic opportunities for female students (52.18%) and the percent of female students in the student body (55.54%) , the court acknowledged this translates to 36 athletic opportunities, a number not too small to support a new varsity team. Nor did evidence show a history of continuing practice for adding opportunities in women's sports, since Lock Haven both added and ended women's teams in the past and also denied requests from club teams for elevation to varsity status.

But the court could not decide as a matter of law, without the benefit of trial, whether Lock Haven satisfied part three. It has not yet in fact terminated the swim team, so it has not created the situation that would automatically render it out of compliance with the satisfied interests test. That left the court to consider conflicting evidence: on the one hand repeated requests from the women's club rugby team requesting elevation to varsity status, and on the other hand, survey data suggesting female students' interests in additional athletic opportunities is low. So the court withheld summary judgment on this issue and deferred it to trial.  It also saved for trial the question of whether demoting the field hockey team to Division II would violate Title IX, since it hasn't happened yet and Lock Haven claims to have withdrawn that idea from consideration. The plaintiffs' equal treatment claims also raised too many issues of disputed fact to warrant summary judgment for either side.

Last, the court addressed whether this case could proceed as a class action purporting to represent "all present, prospective, and future University female students who participate, seek to participate, or have been deterred or prevented from participating in or obtaining the benefits of intercollegiate athletics at Lock Haven University." Class certification is helpful to plaintiffs especially in Title IX cases because it keeps the case from becoming moot when the current student-plaintiffs graduate.  Here, the court rejected class certification of such a broad class, noting that the named plaintiffs, who are members of the swim, field hockey, and club rugby team, are differently situated from each other and from other present and future students with respect to the remedies they would favor. But the court permitted the plaintiffs to request certification of three subclasses, each purporting to represent the present and future potential members of each team. 

Theoretically, then, the next step in this case is for the plaintiffs to repropose their class certification request, and for the court to schedule trial. I admit, though, I'd be highly surprised to see an actual trial in this case. I think a decision to drop swimming would be impossible to defend unless the university first closes the proportionality gap, and it should be clear that it can't elevate a men's team (wrestling) to Division I and offer no similar benefit to any women's team. Moreover, Lock Haven also argues that it is close to complying with proportionality. Given all this, I'd bet the parties would be more likely to settle than to engage in an expensive and time-consuming trial. 

Robb v. Lock Haven Univ. of Pennsylvania, No. 4:17-CV-00964, 2019 WL 2005636 (M.D. Pa. May 7, 2019).

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."

Student Paper Raises Questions About UPenn's Title IX Compliance

A recent article in the student newspaper for the University of Pennsylvania takes the university to task for having the highest disproportionality of athletic opportunities among all of the Ivy League schools.  Women at Penn constitute 51% of the student body, yet they receive only 37% of athletic opportunities.  Some of this gap is due to the university's 51-man sprint football squad -- a sport for which no female counterpart exists.  Tradition dictates that the sport continue, argues the athletic director.  But as the article is careful to point out, even without football, Penn's gender gap would still be wider than that of several Ivy League peers.  Moreover, football is not a legally recognized excuse for noncompliance.

To be sure, Penn's disproportionality is not by itself evidence of a compliance problem.  The article describes how the university surveys female students about their interest in sports, suggesting that it likely complies, or is striving to comply, with prong three -- an alternative to proportionality that requires universities to demonstrate they are fully satisfying the interests and abilities of the underrepresented sex.  Hopefully Penn's prong three efforts include more than surveying, since OCR clarified in 2010 that interest survey results alone aren't conclusive of prong three compliance.  Part of the reason why this is so is captured in Penn's survey itself, which asks students what sports they are interested in playing, and whether they have the ability to play them at a Division I level. This obviously skews the survey results away from finding unmet interest and ability, since Division I-caliber athletes don't usually enroll of their own initiative at institutions where their sport of choice is not already offered.  For this reason, OCR requires universities to take a broader look at women's interests by including evidence of regional and conference popularity of certain sports, which could suggest that, if offered, women would come to play.  The article notes that Penn has a "robust" club women's rugby program, and recommends that Penn consider elevating it to varsity status.  Given the gender gap in opportunities as well as Penn's seemingly vulnerability under prong three, this is definitely a recommendation worth looking in to.  And if Penn were to turn down a request for elevation stemming from the rugby team itself, it would have a very hard time defending its compliance with Title IX.   

UC Berkeley Cuts Five Teams

As Kris noted recently, the University of California, Berkeley athletic department has been considering eliminating sports as a cost-reduction measure. So it is sadly no surprise that the Chancellor has announced that baseball, men's and women's gymnastics, women's lacrosse, and men's rugby will be no longer be varsity sports. Men's rugby will occupy a new "varsity club" status.

I have a couple of questions about whether this decision complies with Title IX. First, what is varsity club status? It seems like the rugby team will continue to receive some university support -- more than the club teams receive but not as much as varsity teams receive. Title IX does not preclude Cal from making up new status labels for its sports, but those labels must be equitably applied. If a women's sport asks for "varsity club" status, I cannot see the grounds on which Cal would deny them.

Second, I have concerns that the resulting distribution of athletic opportunities complies with Title IX. Before the cuts, Cal could have claimed compliance with prong two or prong three, but eliminating women's teams forecloses that option. This leaves prong one: substantial proportionality. As Kris noted in her earlier post, Cal's women received about 41% of the total athletic opportunities (385/948), despite constituting about 53% of the student body. After the cuts, they still receive about 41% (385-45/948-102*). There is no way a 12 percentage points qualifies as substantial proportionality, so my question is, on what basis is Cal making that claim?

* This denominator figure is adjusted by the loss of both gymnastics teams, baseball, and lacrosse. I did not subtract the 60 terminated opportunities in rugby from the denominator because Cal's EADA report did not include men's rugby when calculating the total number of athletic opportunities.

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.

NCAA Welcomes Women's Rugby

ESPN.com reported recently on the first ever NCAA women's rugby match, which took place last weekend between West Chester and Eastern Illinois. Rugby is on the NCAA's list of emerging sports for women, which means it has 10 years to attract 40 teams. Barring an extension, rugby has four years left to add 36 more teams. If it does, it becomes a full-fledged NCAA sport with an NCAA-sponsored championship. Otherwise, it's off the list.

The NCAA is hoping that rugby succeeds and is encouraging many of the hundreds of existing club-level teams to elevate to varsity status. Advocates for NCAA women's rugby point out that the sport creates lots of participation opportunities and it's relatively inexpensive, which should make it attractive to athletic administrators seeking gender equity. They also say that it's fun sport to play and to watch, which makes it easy to attract participants and fans.

Interestingly, however, many women ruggers want nothing to do with the NCAA. They enjoy the flexibility and freedom of being unregulated club teams. Joining the NCAA means, for example, being limited to one game a week, which conflicts with the rugby tradition of weekend-long tournaments at which teams play two or three games. Also, NCAA-governed competition could not end with a post-match, inter-squad "social," which for some players, is part of what makes the sport of rugby different and special.

Still, many point out that the advantages of varsity status -- access to financing, equipment, facilities and medical personnel -- outweigh the sacrifices that come with submitting to the NCAA's rules. The NCAA seems genuinely invested in growing this sport, so perhaps it will be willing compromise on some of the rules that are making varsity status so unattractive to players. Obviously there's no way they'll sanction drinking after the game, but the one-game-a-week rule might be a good place to start.