Female Wrestlers' Case Against UC Davis Goes to Trial

On Wednesday, a federal district court judge in California heard closing arguments in the trial to determine whether the University of California at Davis violated Title IX when it denied opportunities to female wrestlers in 2001. The case has been in litigation for a many years, and we have blogged about it several times (see here, here, here, and here.)

The plaintiffs in this case are three female, former student athletes who wrestled on the U.C. Davis team until they were cut in 2001. According to this article about the trial, there is conflicting testimony about whether then-athletic director told the then-wrestling coach Michael Burch to cut the women, or whether the coach decided to cut the women, who did not contribute points in wrestling meets, after being told by the AD that he had to reduce the size of the team. In response to protest, the athletic director granted them the right to try out for the team. Two of the women tried out but did not make the team, and a third did not try out.

What about this scenario could violate Title IX? On the one hand, the law does not require schools to have coed teams in contact sports like wrestling. And where the contact sport exception does not apply, female athletes athletes are limited to a right to try out for the men's team when it's the only team in that sport. But at the same time, universities have the obligation under Title IX to provide an equitable number of athletic opportunities to female athletes. Thus, UC Davis could have lawfully excluded women from the wrestling team, if it otherwise provided equitable opportunities to women. But because it did not, the plaintiffs argue, eliminating their opportunities to participate in wrestling violated the law.

Thus, what the judge will really be deciding is whether UC Davis's overall distribution of athletic opportunities complied with Title IX. Davis contends that it complied with prong two, which requires it to show a history and continuous practice of expanding opportunities for women. Plaintiffs' witnesses, including women's sports expert Donna Lopiano, testified that UC Davis's history of women's sports, which included going twenty years without adding any women's teams, then adding three at once in 1996, followed by outdoor track in 1998 and indoor track in 1999, does not qualify. According to the same article, however, another women's sports expert, Christine Grant, testified for UC Davis that the university deserved credit for adding three teams at once.

Other issues also bear on the question of UC Davis's proffered prong two compliance. Namely, the judge will also have to figure out whether the university had good reasons in the 1990s to cut two other women's teams and to reject petitions by women's club teams seeking elevation to varsity status. And the judge will have to figure out how much prong two credit to give to the university's decision to add indoor track as a women's sport in 1999. An appellate court has already ruled that a sport does not necessarily have to raise the number of actual athletes in order to count as new athletic opportunity for existing athletes to compete in another sport. But adding indoor track could still be questionable evidence of prong two compliance if it appears that the decision was motivated by the universities interest in efficiency (in that indoor track doubles as an off-season for other running sports) rather than in response to genuine student interest.

The judge's decision is expected in July.

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.

Default was not "consequence" of Title IX

There were a lot of issues/controversies raised by last week's story about a male high school wrestler who defaulted his match rather than wrestle a girl. Religion, violence, gender roles. Title IX was not one of them. Why? Because of the contact sport exception.
So I was surprised to read a blog post on the Chicago Tribune website Chicago Now entitled "The Unforeseen Consequences of Title IX" by Kirk Mango. Note that the title is pretty ubiquitous. Opponents of Title IX use it all the time to talk about a myriad of issues. But the post colon blog title "Top Iowa High School Wrestler Defaults, Won't Face Girl" was a little surprising. Because, again, Title IX does not require integration of teams when the sport is a contact sport. And as Joel Northrup pointed out when he issued a statement about his default to Cassy Hekelman, wrestling is a contact sport.
Girls have gained access to wrestling either because they have just been allowed to participate or because they have sought legal remediation under either an individual state's equal rights amendment or the equal protection clause of the Fourteenth Amendment of the Constitution.
But no one seems to be writing pieces titled The Unforeseen Consequences of Equal Protection.
For more on this I highly recommend Dr. Sarah Fields's book Female Gladiators: Gender, Law, and Contact Sport in America. She specifically addresses the legal and cultural controversies girls' wrestling has engendered.
So I hope Mr. Mango picks up Fields's book. As someone who in involved in promotion of youth sports (he has a website called Becoming a True Champion about empowering individual athletes) he--and all who work in youth through intercollegiate sports--should know what Title IX does and does not do.

2/24 UPDATE: Mr. Mango has changed his post to reflect the fact that Title IX was not a factor in the integration of wrestling. This is the new post.

UC Davis Officials Do Not Have Immunity from Wrestlers' Suit

Mansourian v. Regents is the case against University of California at Davis in which former female wrestlers challenge the university's decision in 2000 that women would no longer be eligible to participate in varsity wrestling team. The plaintiff's Title IX claims against the university have been litigated in the district and appellate court, and are proceeding toward trial. (For more background, see prior posts here, here, and here.) The plaintiff also filed claims against several university officials under 42 U.S.C. 1983 (the statute that provides a cause of action for constitutional violations) claiming that the officials violated their rights under the Equal Protection Clause. These claims were initially dismissed as preempted by the Title IX claim, but reinstated after the Supreme Court decided in Fitzgerald v. Barnstable School District that Title IX and 1983 claims could proceed simultaneously.

So the university officials --the former chancellor, the former associate vice chancellor, the then- and current athletic director, and a former associate athletic director -- tried a different argument to get those claims thrown out of court -- qualified immunity. Under this doctrine, individuals cannot be personally liable for unconstitutional conduct if the law did not clearly forbid the conduct at the time. Recently, however, the district court denied this motion and refused to let the officials out of the case, after determining that the law requiring equal opportunity in athletics was settled at the time, leaving the officials no defense that they didn't know what they were doing violated plaintiff's rights.

The only thing left for plaintiffs to do is to prove their factual allegations at trial, which is scheduled for April.