Football Exempt from School District's Decision to Cut Freshman Teams

I'm not sure how this can NOT be a Title IX violation: the Ann Arbor school district is cutting all freshman teams at its three high schools except football. In all other sports, freshman will be able to try out for existing junior varsity and varsity teams, but there will be no teams reserved exclusively for them. Budget cuts explain the district's decision to slash freshman sports. The reason they are saving freshman football is that "safety issues are a major concern" if freshman are allowed to compete on J.V. team. What? Excuse me while I parse this pretext. Even if it were the case the freshmen boys are so distinctly different from sophomore or junior boys in terms of size or skill that it would raise "major safety concerns" to have them play together, why doesn't this difference carry over into other boys and girls contact sports? Why isn't it a major safety concern to have freshmen on the J.V. lacrosse or hockey teams? And finally, if it's a problem to allow freshman boys to compete on the J.V. team because of safety, hold a tryout and only let the kids on the J.V. team who are big enough and skilled enough to hold their own. After all, that's the standard that is being applied to all the other sports. Safety, yeah right. This is clearly a case of football once again getting special treatment at the expense of girls' and other boys' sports.

And, as I said at the outset, I can't see how this isn't a Title IX violation. Even if Ann Arbor high schools were proportionate before, they certainly can't be now that they have eliminated more freshman girls' opportunities than they have freshman boys'. And of course, cutting girls' opportunities makes it difficult to claim compliance under prong two, and the interest and ability is clearly there and now unmet due to the cuts, making it impossible to claim compliance under prong three.

What's more, the article linked above says that several sports are being demoted to "club" status, meaning they receive no school district funding. 7 girls sports will be affected by this new status at one or more of the three schools: lacrosse, bowling, J.V. field hockey, figure skating, cheer, dance, and crew. Only 3 boys sports will be: lacrosse, bowling, and crew. It is highly unlikely -- impossible I think would be fair to say -- that a school district that exempts football from freshmen cuts, and then takes out more girls' teams than boys' sports still manages to provide athletic opportunities proportionate to the gender ratio of the student body.

I don't envy the administrator who is forced to balance the school district budget on the back of student athletes. But as hard as that job is, there is no excuse for ignoring Title IX. These cuts need to be spread out fairly between boys and girls and ensure that even if the pie is getting shrunk, boys' piece and the girls' piece are still the same size.

[Thanks, D.R.]

Is Title IX Hurting Men? (No)

On Jezebel, Anna North provides perspective from Donna Lopiano on recent headlines blaming Title IX for universities' decisions to eliminate men's teams (see, e.g.). Lopiano blames the arms race in spending on men's basketball and football, which at Division I institutions receive 78% of the funding for men's sports. It's this kind of favoritism that results in schools having to cut teams in the first place, and the existing disparities in opportunities that still favor men, that put men's sports like wrestling and tennis on the chopping block. North reported that Lopiano succinctly replied "oh god no" when she asked her if Title IX should be modified. She didn't need to say more. Though the disrespect that schools show to when they choose to favor the 120-worst football player over their best male wrestlers and tennis players is deplorable, it's not a Title IX violation. It's a collective-action problem that, as Donna Lopiano points out, can be solved when Congress, the NCAA, and its member institutions agree to get it done.

Honestly, though, as much as I like reading Donna Lopiano's perspective on this issue, my favorite part of this post was in the comments at the end, when readers put the Title IX-cutting-men's-teams issue into perspective not with statistics and policy arguments, but with pop culture.

One posted: What is this, a King of the Hill episode?

Another posted back:

Hank Hill: It's all well and good to talk about equal rights until some MAN loses his job! How's that equal?
Bobby Hill: Yeah! And it's worse when they take away our favors, 'cause we're USED to getting 'em!

Brown to cut sports--or maybe not

It's been a big news week generally and in Title IX land. We apologize for not keeping up.
Last week I kept meaning to write about how a Brown University committee was recommending the elimination of four sports from the varsity roster: wrestling, men's and women's fencing, and women's skiing. There was a list of eight criteria the committee followed when making the decision. Gender equity was listed as the eighth.
But then President Ruth Simmons announced (perhaps in light of seemingly immediate action to save the sports driven in large part by the wrestling program's alums from what I have read) that no decision will be made until fall semester.
But let's run the numbers anyway given that Brown was at the center, many years ago, of a very contentious and precedent-setting Title IX case. (It's always good to see if institutions remember their own history after all.)
Currently it appears (based on the latest data from the Department of Education) that women comprise 52 percent of the undergraduate student body and receive 46 percent of the athletic opportunities.
If the recommendations are enacted this is what changes (I am keeping the 52 percent the same while noting that undergraduate enrollment could change of course):
Not too much. Women would have 47 percent of the opportunities. But again, enrollment numbers and even roster numbers could change that figure slightly.
In other words, it's close, even though male athletes will receive the brunt of the cuts, the female student-athletes could have a case that they should not be cut because Brown has not achieved proportionality. Because while the 5% +/- figure has been thrown around when talking about how close to proportionality a school must be, there really is no magic number.

Mediation in UD track complaint

News out of Delaware: the University has agreed to mediation in an attempt to obtain an Early Complaint Resolution. If mediation is unsuccessful (supporters of the men's track team have said the only satisfactory resolution is reinstatement) OCR will go forward with its investigation.
I have to say, I'm pretty surprised. While I agree that university officials should have been communicating more openly and more honestly about the situation, I don't know why they felt pressured into mediation, when it appears they have not violated Title IX. Again, if there are other civil rights issues present that could have triggered an investigation, we don't know about them.
And it seems the secrecy theme continues. Because both sides have signed a confidentiality agreement. So while many have been seeking greater candor, it does not seem that this will be forthcoming. It's unfortunate because it means those seeking explanations (and yes, we're curious too!) won't actually get them.

More on the Delaware track team complaint

The complaint filed with OCR by those trying to save the Delaware men's track team remains in the news this week. And Erin was asked to comment on the situation for The News Journal in an article in which we learned more about the complaint and motivations.
Erin's comments further or better clarify my own from the other day about the complaint and forthcoming investigation. It remains unclear what OCR will be investigating. People associated with the team and the complaint have said that they are seeking publicity and answers and accountability. And I understand all these motivations but remain unconvinced that filing an OCR complaint suggesting that the way in which Delaware chose to enact Title IX, specifically the component requiring the provision of equitable opportunities for participation.
The concept of reverse discrimination is part of the backlash rhetoric. And while many who support the Delaware men's track athletes say they are not upset with or opposed to Title IX, the filing of this complaint using this language contributes to the problem. And I was surprised to see that the lawyer who represented the equestrian team recruit at Delaware State is now affiliated with this complaint.
Again, I support those affected by the cuts in their efforts to get answers and hold the administration accountable. But I don't really think there is some secret, nefarious agenda that is going to be revealed by the investigation of this complaint. It seems that Delaware has prioritized other things in the athletic department. It seems most athletic departments operate rather unapologetically under a corporate model that measures success in revenue dollars and publicity rather than the personal experiences of individual student-athletes. It is this system that should be questioned.
There are likely many different "truths" here. I wonder which one will come out on top.

Delaware athletes filed OCR complaint

There has been a lot of press about the cutting of men's outdoor track and cross country at University of Delaware since the announcement was made in January.
We haven't commented on it because it has been the usual blame game: blame on Title IX mostly, but also blame on administrators, and blame on the economy. None of it very productive.
But the news out today about the filing of an OCR complaint is quite interesting. The student athletes who were affected by the cuts have filed the complaint asking OCR to investigate whether there was gender discrimination involved in the decision to make the cuts. The athletes, and others, believe this is an instance of reverse discrimination.
We're a little surprised and concerned that OCR has said that it will indeed investigate the complaint--unless there's something more to the complaint that we don't know about. But Title IX protects the historically underrepresented sex. Men at UD have not been underrepresented in athletics.
Yes, it is lousy that such a storied program is being cut, and the manner in which it was done doesn't reflect too well on the university. But it isn't reverse discrimination. Equity in Athletics tried to make that argument (in the courts) in the JMU case and it didn't work there. We suspect it won't work here either.

Mankato cutting sports

Somehow it flew under our radar last fall that Minnesota State University Mankato was planning on cutting four sports: men's swimming/diving, women's bowling, and men's and women's tennis.
But they indeed were. And then the student-athletes and their supporters started a campaign to save their sports for at least three years by increasing student fees. The students voted on the non-binding referendum earlier this week. And it passed.
But the university president has opted to go forth with the cuts anyway--with one exception: women's tennis which is being kept for conference affiliation reasons.
Several years ago, I noted that Mankato had been considering cutting sports but opted instead to manage their rosters better and add a women's sport. They believed, at the time, that this would actually save money in the long run. It was a nice idea, but apparently it didn't work out. And the sport that was added--women's bowling--is now being cut.
No explanation from the president on why he chose not to follow the student vote. Title IX does not seem to be a factor in the cuts. Mankato remains in compliance with prong one.

Liberty explains

The good news is that Liberty University, which dropped its men's wrestling program from the varsity roster this week, is aware that they currently meet the criteria for compliance with prong two. But they believe that in three to five years this will not be enough. This is despite their plan to continue to decrease roster spots in men's sports and increase spots in women's sports. Compliance with prong two remains somewhat subjective. How many and how frequently a school has to add opportunities is not neatly outlined. And while I applaud Liberty's forward-thinking--many schools get caught having to make lesser-of-the-evil type decisions because they have not thought ahead--it still seems somewhat curious that Liberty would make this cut now. Liberty officials argue that wrestling was the sport to go because it had a large roster (38) and because it was the only sport not in the Big South Conference--it actually had no conference affiliation. I still have not run the numbers myself, in part because the most recent women's sport addition will not be present in the latest set of data. But according to Liberty, their undergrad population is 52/48 women to men. And even with the addition of the three sports they are still not achieving proportionality! Makes me wonder what things looked like when wrestling was added in 2006 (and earlier).

Liberty reclassifies wrestling

Liberty University reinstituted its DI men's wrestling program in 2006. This was a move that bucked the trend of dropping men's intercollegiate wrestling. And they produced a successful program in that time. But the university announced this week that it would be dropping the team from the roster of intercollegiate sports and reclassifying men's wrestling as a club sport. In order to comply with Title IX. Or so they say. Liberty has added three women's sports since 2009 but says that even those additions are not enough to achieve proportionality. True, perhaps. But we don't even need to go look at their Department of Education Equity in Athletics data--because they are already in compliance. They don't have to achieve proportionality right now because they are adhering to prong two. Adding three sports in three years demonstrates a history of expanding opportunities for women. The only reason they might be seeking proportionality is if they intend on dropping a women's program. Once a women's sport is cut, then proportionality becomes the only option. Or they might want to add a different men's sport in the future. The wrestling community and the Title IX community are often seen as adversaries, and Liberty saying that they cut wrestling because of Title IX is not helping things. Liberty already is in compliance (regarding participation). So if I was a wrestler, I would start questioning Liberty's rationale.

West of the Mississippi...

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

Fourth Circuit Affirms JMU Cuts

Equity in Athletics has been battling in court James Madison University's decision to cut 10 teams since the cuts were announced in 2006. On behalf of the affected athletes and other interested parties, the organizations sued the University and the Department of Education, challenging both the cuts and the Department of Education's policy interpretation that provides the three part test for measuring equity in athletic opportunities. After failing to attain a preliminary injunction against the cuts, EIA continued to pursue permanent relief. Last year, a federal court in Virginia rejected EIA's claims, and yesterday, a three-judge panel of the Fourth Circuit Court of Appeals affirmed.

Though the appellate court agreed that EIA had standing to bring its case, the rest of the decision rejected EIA's arguments in their entirety. In particular, the court rejected EIA's argument that the three-part test is an unauthorized use a disparate impact standard of discrimination. For one thing, the court cited specific language in Title IX that allows regulators to consider statistics when defining and measuring equity. ("Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex." 20 U.S.C. § 1681(b).) For another, the court said EIA "misconstrues" the three-part test as a mandatory disparate impact standard. Consistent with every other court that has considered this question, the court recognized that the three-part test does not mandate proportionality. Rather, it allows evidence of proportionality create a presumption of compliance. Institutions with disproportional athletic opportunities can still show compliance under either of the alternative prongs.

The court then went on to affirm the district court's rejection of EIA's other claims, affirming the constitutionality and procedural validity of the three-part test as well as the constitutionality of JMU's decision to cut more men's teams than women's teams -- a decision that affected more male athletes, but produced a result that "ensure[d] that the student body as a whole was “substantially equally” represented in the availability of opportunities for athletic participation." Relatedly, the court "unhesitatingly [made] clear " its rejection of the idea that athletic opportunities should be distributed in proportion to percentages of male and female students who are interested in athletics, citing the First Circuit's oft-quoted language that "[i]nterest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience."

According to a press release, EIA plans to appeal, either to the entire Fourth Circuit en banc (which can, in rare cases, reverse a three-judge panel) or to the Supreme Court. So we are not yet done blogging about this case!

Decision is: Equity In Athletics, Inc. v. Department Of Educ., 2011 WL 790055 (4th Cir.(Va.) Mar 08, 2011).

Cal saving three sports

The University of California Berkeley announced yesterday that, due largely to fundraising efforts, it will reinstate three of the varsity sports it had been planning to cut. Men's rugby, women's lacrosse and women's gymnastics are back on the school's intercollegiate roster. Men's baseball and men's gymnastics, however, apparently did not meet the necessary requirements for fundraising and will no longer exist as varsity sports next year.
So it appears they are indeed trying to unring the bell. How successful this move is remains to be seen. When the NYT picks up a story and runs the numbers (months and months after some of us noticed the discrepancy... but better late than never), people pay attention. And so Cal remains on the spot having to answer to athletes, alums, the anti-IXers, and the media. And to advocates as well. I still wonder how it is that Cal can claim that when the initial decision to cut five sports was made last fall that the Title IX ramifications were factored into the discussion.
So here are the new numbers based on the three sports being saved as based on EADA data. Men have 524 opportunities. Women have 388. That bumps up the percentage of female athletic opportunities to 42%. While Cal is still planning on adding roster spots to current women's teams and reducing roster sizes on the men's side, I don't know how they can make up such a disparity doing that. In other words, it does not seem like prong one compliance is an immediate option. And it is hard to tell if adding those roster spots will constitute prong two compliance. It's possible. And given that the women's rugby team asked to be elevated to varsity status, it also looks like prong three is not an option.
In short, until Cal reveals a specific plan, they remain on very shaky ground.

Cal Berkeley Could Restore Women's Teams

Perhaps some folks at University of California--Berkeley read our questions about the Title IX compliance problems posed by the university's decision to cut two women's teams (gymnastics and lacrosse) four months ago. As we explained in that earlier post, the decision to terminate women's teams seemed a likely violation, as women were and remained underrepresented in athletics, even factoring in the men's teams also cut. The New York Times reported this week that Cal is apparently considering reinstating some of all five teams that were cut last fall, though the athletic director, Sandy Barbour, explains that the reconsideration was motivated by the outcry by the teams' supporters, as well as pledges of financial support. She denies that this has anything to do with Title IX, though I have to believe they are reading the writing on the wall and acknowledging the fact that the cuts backed them into a corner of having to achieve proportionality. Cal is so far from proportionality, that they would have to add 50 women's opportunities and cut 80 men's opportunities, according to the Times article.

But I'm not so sure that Cal can simply unring this bell by undoing last fall's decision. After all, they weren't any closer to proportionality back then. And even restoring women's gymnastics and lacrosse, it is still far from certain that it is achieving compliance by the alternative method of demonstrating no unmet interest in women's athletics. As the Times article notes, the athletic department denied a request to elevate the women's rugby team to varsity status. If those disappointed athletes sue or complain, they would have a strong case that could produce an obligation on Cal to add them, or come into compliance some other way. Cal's decision to cut teams brought the university into a compliance spotlight, and that spotlight will be very hard to shake.

Bemidji State Cuts Men's Track

A brief note that officials at Bemidji State, a state university in Minnesota that is trying to execute a 10% budget cut institution-wide, announced that it is terminating its indoor and outdoor men's track teams. Officials acknowledged that the university is "well out of alignment, as far as Title IX" -- an explanation for why budget cuts focused on men's sports rather than women's sports or both. Track was also, apparently, expendable from a point of view of maintaining the requirements the Northern Sun Intercollegiate Conference and the NCAA Division II, to which Bemidji State belongs.

In case you're wondering what "well out of alignment" looks like, Bemidji's EADA data reveals 221 opportunities in men's athletics, 129 opportunities in women's, a 63% to 37% split at a school whose student body is 50% male and 50% female. Cutting the men's track teams brings the percentage of opportunities in men's athletics to 54%, which may not be considered close enough for proportionality, especially because it amounts to an absolute disparity of 24 women's opportunities, which is more that the size of many women's teams.

DU decision backlash

There have been a lot of articles and editorials and articles that editorialize in the wake of DU's decision to end its men's running program.
I thought this one was especially good, from a female alum and current track coach. She raises the point I neglected to make in my initial post which is if DU is adding women's golf in the fall why it it so worried about achieving proportionality now. Ms. Ambrogi appears to be right. By adding women's golf it would seem that DU is complying (temporarily anyway) with prong two by expanding opportunities. Not sure what their previous history has been, but the addition of golf would seem to do for now...unless DU has plans to cut a women's team some time soon. In that case they would have to have their proportionality ducks (or hens in this case) in a row.
This is just a very curious case, and I have a feeling we are not hearing the whole truth(s).

Delaware to drop two sports

The University of Delaware announced this week that they will be dropping men's cross country and men's indoor track from its list of varsity sports in order to comply with Title IX. The two sports will have club status after this year.
The option to add more women's sports was not possible because of budgetary reasons, according to officials. Women's golf, however, will be added in the fall, as planned. (We wrote about that when UD cut men's indoor track.) With the reduction, DU will carry 21 teams, the most in its conference.
According to this editorial, DU cited Title IX 12 times in its announcement of the cuts. The past cuts (linked in the second paragraph) were blamed exclusively on Title IX, but this time DU is also citing economics. But editorialist Jeff Pearlman, an alum and whom we have also written about in the past, isn't buying that or fiscal responsibility given the low costs of maintaining the program and the plethora of football players on that team's 103-person roster.
With these cuts there is no longer any varsity running program for men at DU.

Addendum: Here is another article on the cutting of the teams that discusses the impact on the student-athletes and includes interviews with team members. Some of the runners are none too happy with Title IX. Others are not pleased that the administration has asked them not to talk to the media without prior discussions with the appropriate officials.

Delaware State Settles With Equestrians

A federal judge in Delaware approved a settlement between Delaware State and the members of the equestrian team affected by the university's decision to eliminate the program, who had sued and challenged the decision as a violation of Title IX. The settlement requires the university to keep the program until it offers proportionate opportunities to each sex not counting equestrian opportunities. The university will also play the plaintiffs' legal fees and court courts, about $500,000.

As I told Inside Higher Ed, the outcome of this settlement is a victory for the plaintiffs. The university had clearly violated Title IX by cutting an existing program from the sex with fewer opportunities to begin with. Delaware State's population is 61% female, yet women receive only 43% of athletic opportunities. But I refused to paint this outcome as entirely positive. While it's great that the legal process protected the athletes from a discriminatory outcome, but it's sad that schools are still screwing up some basic Title IX requirements.