New volleyball coach at Quinnipiac

Apparently hedging some bets about whether the court will lift the injunction against the school cutting women's volleyball, Quinnipiac has hired an interim head coach for the program. As you might recall, coach Robin Lamott Sparks was fired and escorted off campus a couple of months ago for reasons that remain unspoken. Yes, there was the bad record--but bad records don't generally warrant security escorts.
Meanwhile, QU has been trying to cut the team, but has been prevented by an injunction that stemmed from the case that became famous for addressing the "is cheerleading a sport" question. QU has requested the injunction be lifted; that issue will be determined later this spring.
Meanwhile, the university has brought on board Kristopher Czaplinski who had been serving as an assistant coach at Post University. He has also been involved in Junior Olympic program.
Not quite sure how the university convinced him to give up an actual job for one that might be gone by the summer. It's possible he will get a shot even if the injunction is lifted. We shall see...

Quinnipiac seeks to lift volleyball injunction

When Quinnipiac University tried to cut its women's volleyball team several years ago, it lead to the now famous and controversial case about cheerleading. (If you're not quite sure how that happened, click on the Quinnipiac tag.)
Early on in those proceedings volleyball asked for and received an injunction which prevented the university from cutting the team. That injunction is still in place while QU gets its proverbial house in order--i.e. they achieve compliance. Believing that are so, the university filed with the court in December of 2011. A hearing is scheduled for June 11.
But those watching QU closely say the university has not changed its ways. Sandra Staub of the Connecticut ACLU does not believe the university  has made any "meaningful improvement in the allotment of athletic opportunities for women at Quinnipiac." Additionally, QU is facing more legal proceedings regarding equal treatment. Staub argues that the school has some issues in the areas of facilities and coaching, among other unnamed items.
Clearly the university wants to replace the volleyball team. It has already fired the head coach. But whether they will have to seek out a new head coach remains to be seen.

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.

NCAA Gender Equity Issues Forum

Greetings from Bethesda, where I'm attending the NCAA's Gender Equity Issues Conference. This is a great annual event that brings together gender equity experts and athletic department staff from colleges around the country to talk about Title IX and gender equity issues. Yesterday I had the pleasure of participating on a panel about how to count participation opportunities for the purposes of demonstrating proportionality. My co-presenter Tim O'Brien and I used the court's decision in the Quinnipiac case as the starting point for a discussion about the importance about looking past the numbers and assessing whether those numbers reflect actual, meaningful athletic opportunities. We also talked about some of the egregious examples of reporting violations and roster manipulation that the New York Times wrote about last week. We definitely addressed those issues as well. David Moltz covered the presentation for Inside Higher Education, so even if you couldn't attend, you can read all about it!

Other panels have addressed such hot topics as pay equity, prongs two and three compliance, diversity and inclusion, retaliation, and emerging sports. We also had a brilliant keynote address by Mariah Burton Nelson on the importance of implementing and enforcing policies against sexual abuse by coaches. And I had the pleasure of learning about the Athlete Ally initiative to eliminate the use of sexist and homophobic language in sport, and meeting its founder, a former student-athlete and All-American wrestler, Hudson Taylor. All in all it's been a great conference!

Intersex Athletics, Roster Floors Addressed in Law Student Notes

The current issue of the Brooklyn Law Review contains two Title IX-themed articles written by students.

In Policing the Policing of Intersex Bodies, author Laura Zaccone lays out a regulatory approach to "preventing the gender inquisition that befell Caster Semenya from occurring in the educational context." She urges the Department of Education to

issue Title IX regulations--or, failing that, a policy interpretation--making a student's self-identified gender determinative of eligibility to compete in school athletics. If a student lives and identifies as a female, there should be no other eligibility criterion for participation on a female team. Under this policy, the perspective of the individual student is the deciding factor. But an individual's self-identified gender is not always readily discernable to others. Some basic guidelines, then, are needed to ensure that this policy is administered fairly.

Above all, students should not be subjected to gender-identity tests. Procedures seeking to establish gender identity are just as pernicious as those purporting to verify biological sex. The DOE should make clear that testing of this nature is likely to violate Title IX.
To determine a student's gender identity, there are a numbers of factors that school administrators can consider. Substantial weight should be accorded to the gender self-identified by the student at enrollment.

Administrators might also consider the gender marker on identification documents, such as passports, driver's licenses, or birth certificates. These records should not be regarded as conclusive, however, given the adverse implications for transgender students, who often face obstacles in modifying the gender designation on personal documents even after sex reassignment surgery.Whatever factors are used to show self-identified gender, the DOE should require that school officials apply them consistently across the board. A case-by-case approach risks that athletes appearing more “masculine” than others will be subjected to more vigorous scrutiny.

76 Brooklyn Law Review 385 (2010).

A second article, Leave It On the Field, student author Carolyn Davis criticizes the federal court's decision in Biediger v. Quinnipiac, which rejected the university's claim to satisfy the proportionality standard because the university had counted several athletic opportunities for women that were not meaningful in comparison to other varsity opportunities (specifically, those in competitive cheer, winter track for some athletes for whom it was an extension of the season for other running sports, and opportunities on teams with a roster inflated for Title IX purposes). Davis criticizes the court's analysis as "part of a worrisome trend" that courts are interfering with athletic department's spending decisions. In this spirit, she argues that the use of roster floors ought to be an acceptable practice, and that courts should not scrutinize the "subjective" question of whether those rosters offer meaningful participation opportunities. Interestingly, however, Davis's defense of the practice of expanding/inflating the size of women's teams by arguing that it is most acceptable when it is accompanied by commensurate increases in support for the team. Yet, by using an example the inflated roster of Quinnipiac's softball team, which did not receive commensurate additional support, Davis demonstrates that without judicial oversight, universities facing budget problems will solve them by very means she agrees are problematic.

76 Brooklyn Law Review 265 (2010).

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.

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.

Perspectives in QU/cheerleading

Nothing major to report. I haven't seen any coverage of the closing arguments yet but if something of note occurs, we'll post about it.
In reading some of the coverage that stemmed largely from Jeff Webb's testimony Tuesday about the legitimacy of cheerleading as a varsity sport, I came across a post from The Washington Post. In addition to incorporating the phrase "bring it on" the author also quotes Dr. Mary Jo Kane. director of the Tucker Center who put it nicely:
"How would people react if the school cut a men's sport like baseball or lacrosse and used those funds for a male cheerleading squad?"
I'm not usually one for the direct comparisons, but I think Dr. Kane's question makes people question certain paradigms that are in need of questioning.

Amici In High Places

I learned at the Quinnipiac trial this week that the Department of Justice has filed an amicus brief in support of the plaintiff's argument that cutting volleyball would render the school out of compliance with Title IX. In the brief, the government echoes the district court's analysis of the motion for preliminary injunction: that "extra" players added to women's teams to suggest the appearance of equity should not be counted toward Qunnipiac's purported demonstration of proportionality, since the law seeks to ensure equitable distribution of "genuine" participation opportunities, not illusory ones.

The government also argues that opportunities added in competitive cheer should not count as genuine participation opportunities. The brief points out that the Department of Education requires that before a school can report cheer opportunities toward Title IX compliance, it must receive an opinion letter from its Office for Civil Right certifying that those cheer opportunities are bona fide athletic opportunities (rather than sideline cheerleading). No schools have received one of these letters. Moreover, the brief continues, Quinnipiac's competitive cheer team does not satisfy two of the criteria OCR uses to measure whether opportunities in cheer constitute athletic opportunities under Title IX, namely, a progressive-style competition and a governing body. (Defined season, athletic department funding and support, competition as the primary purpose, and skill-based selection are some of the other elements of OCR's test.) In sum, competitive cheer opportunities as the currently exist are not sufficiently similar to the other athletic opportunities offered by Quinnipiac to be included in the inquiry of whether those athletic opportunities are equitably distributed.

This is not the first time we've seen pro-Title IX positions coming out of DOJ in recent months. The agency also filed in support of the plaintiffs who sued the Florida High School Athletic Association case and also intervened on behalf of the student challenging sexual/sexual orientation-based harassment case against the Mohawk Central School District in New York. Keep it up, DOJ. I'm glad to see that challenging sex discrimination in education is an agency priority.

Cheerleading on Trial

As Kris mentioned, we were both in the courtroom yesterday for all of Jeff Webb's fascinating testimony about the nature of competitive cheer. Webb is a national expert on college cheerleading, by virtue of his position as CEO of Varsity Brands, which owns and operates all of the major cheer competitions and camps, and his leadership in other governing bodies and associations related to cheerleading. Webb was a witness for the plaintiffs, the members and coach of the Quinnipiac University volleyball team, who are arguing that the university's decision to cut their team violated Title IX because of the resulting imbalance of athletic opportunities. Part of QU's defense is that the newly-added opportunities in competitive cheer help make up for some of that disparity. Which raises the question, is competitive cheer a sport for Title IX purposes?

Webb testified that as it currently exists, cheer is not a sport in the same vein as other, typical college varsity sports. I've heard many times people offer a knee-jerk reaction to competitive cheer by referring to the athleticism apparent in National Cheer Association and Universal Cheer Association competitions, which are often televised on ESPN. But Webb, whose company owns these competitions, pointed out they provide cheer squads one annual opportunity (because you can't enter both) to perform a single, two-minute routine in competition. There are virtually no other competitive venues for competitive cheer. This made me think of the following analogy: imagine that QU formed a volleyball team whose only competition for the entire year was just two minutes long. Should this be considered a sport, comparable to men's hockey, track, and other sports, for purposes of Title IX? I think it would be clear to people that even though the act of playing volleyball in a competitive setting is athletic, to be a "sport" there has to be something more. Specifically, there has to be more of a season.

On this issue, we also heard lots of testimony, some from Webb, and also by the QU Athletic Director Jack McDonald, about the efforts of a handful of colleges and universities to come up with a competitive meet format for cheer, so that squads could compete throughout a season. This testimony largely showed that the sport of competitive cheer, while one of apparent potential, does not currently offer enough competitive opportunities to warrant substituting cheer for volleyball. There are only seven varsity competitive cheer squads in the country. The closest one one geographically to Quinnipiac is at the University of Maryland. This lack of similarly-situated programs makes it difficult to compare competitive cheer to other college sports that have regional conferences and regular competition. Moreover, unlike other sports offered by Quinnipiac, competitive cheer does not have a championship run by the NCAA, nor does competitive cheer bear the NCAA's designation of an official "emerging sport for women" (indicating that schools are adding the sport in sufficient numbers that it will be an NCAA sport after a trial period of several years.) The NCAA has indicated that before it will even consider cheer as an emerging sport, there must be an official determination by the Department of Education's Office for Civil Rights that the sport would count for Title IX purposes. No such determination has been issued, and from McDonald's testimony it was not even clear on whether one had been requested. (FYI, contrary to the New Haven Register's account, "emerging sport" it is the NCAA's designation, not OCR's.)

Sometimes the testimony got confusing because there are many different types of cheerleading, and the lawyers and witnesses always had to carefully explain what type was being referred to in any given context. Varsity competitive cheer programs are those administered by college athletic departments as a sport like any other. They exist only for the purpose of competition and do not perform on the sidelines of other sports. This what Webb was referring to when he said "they do not cheer and they do not lead." (quoted here.) To avoid confusion, Webb said this would ideally be called by another name, one that doesn't use either word. For example, Oregon calls their varsity competitive cheer program "tumble and stunt" and the college administrators who are working to design a competitive program formed the National Competitive Stunt and Tumble Association (NCSTA) earlier this year. Varsity competitive cheer teams are not the same as college-affiliated competitive cheer clubs, which are more numerous than the 7 varsity programs referenced above. Like club sports teams, which are not run by athletic departments, competitive cheer clubs are not properly compared to varsity athletic opportunities for purposes of determining whether the school is equitably distributing athletic opportunities. It's also important to distinguish competitive cheer from traditional sideline cheerleading, which is not a sport because its primary purpose is entertainment and spirit raising.

In sum, I thought the plaintiffs' counsel and their witness, Webb, presented a compelling case that competitive cheer opportunities as they exist right now are too different both in scale and scope from other sports to warrant a fair comparison between opportunities provided to women in cheer and opportunities provided by Quinnipiac's men's sports. This does not foreclose the possibility that competitive cheer could "emerge" into a bona fide sport. But until that happens, a university' decision to substitute it for an existing sport will raise Title IX concerns.

We will of course follow the rest of the trial as it unfolds (no more field trips to Connecticut, I'm afraid, so we'll be reading about it in the Connecticut press) to see how the defendants address this and other issues raised in the plaintiff's case. The trial is scheduled to conclude tomorrow an the judge's decision on the issue will likely take several months.

QU trial: Lopiano testifies

So the Title IX Blog did indeed take a field trip to Connecticut yesterday to watch some of the Quinnipiac University trial. Erin will be posting about what we saw (because she took notes and I just sat there amazed at some of the things people say and the amount of paper involved in these things--binders and binders full of emails and letters and other evidence).
And while we enjoyed being there live and listening to the testimony of three different witnesses we were a little disappointed to find out that we had missed Donna Lopiano's testimony--especially when we found out she was on the stand for six hours!
The New Haven Register covered the story (and has actually been the only coverage I have seen of Lopiano's testimony thus far*). Lopiano covered a lot of ground including addressing the suspect roster management that some QU coaches/administrators engaged in as well as one of the most interesting aspects of this case: whether cheerleading is a sport--even when the word "competitive" appears in front of the historically sideline, supporting role activity. Lopiano does not believe that cheerleading, in its current manifestation, is a sport:
"The NCAA does not classify competitive cheerleading as an emerging sport. It’s clear the NCAA does not support it. It doesn’t fulfill the criteria set forth by the Office of Civil Rights. I do not believe any school can count it as a sport. It hasn’t evolved enough. In the future it could, but not as it exists today. It’s not a sport. It’s not even close.”
[Jeff Webb's testimony from yesterday elaborates (a lot!) on this assertion.]
She also testified that QU would have to keep both competitive cheer, which will have a roster of 36 as well as the volleyball team in order to remain compliant with prong one (which is the only option for QU right now).
Lopiano is an assertive woman. I've seen her speak. She has a presence about her. And apparently she didn't mince words (she was testifying for the plaintiffs, by the way) and I guess the defense (and I am not sure which lawyer questioned her though I would be interested to know whether it was the defense team's one male lawyer or one of the women) kind of got into it with Lopiano. So much so that Judge Stephan Underhill had to warn both parties about getting into "one-on-one" arguments.
No video allowed inside the courtroom so it's not as if this one is showing up on You Tube any time soon. But I would be really interested in seeing the transcripts of Lopiano's testimony since I can't get a whole lot more from the limited coverage of it.


* But I have already heard/seen about cheerleading expert Jeff Webb's testimony from three different media outlets all before 8am! Again, Erin will be posting about this aspect of the trial.

Quinnipiac trial begins tomorrow

The trial in the Quinnipiac University volleyball case begins tomorrow in federal court in Connecticut. There is nothing new to report since last month's decision to grant class-action status to the case being brought by five volleyball players.
As a reminder, at issue is Quinnipiac's "roster management" practices which seemed--in the past at least--to under report the number of men playing sports and overinflate the number of women doing so--so much so that some of these squad sizes were not in compliance with NCAA regulations.
Also at issue is the addition of competitive cheer as a varsity sport.
We will be doing our best to keep the details of the trial coming. (There might even be a Title IX Blog field trip to Connecticut!)

Quinnipiac Plaintiffs Certified as Class Action

A district court judge in Connecticut ruled last week granted class action status to a lawsuit filed by Quinnipiac volleyball players who are suing for a permanent injunction against Title IX violations that would result from the university's decision to terminate their team. The plaintiffs (the volleyball players) petitioned for a class action certification, which would allow them to represent:

a class of all present, prospective, and future female students who are harmed by and want to end [Quinnipiac University's] sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes. They also file this action on behalf of females who are deterred from enrolling at [Quinnipiac] because of the sex discrimination in its athletic program, including its failure to offer the varsity sports in which they want to participate (despite [Quinnipiac's] failure to provide equal athletic participation opportunities to females).

To grant the plaintiff's motion to certify a class, the judge had to find that the class members were ascertainable (which is not the same as ascertained), too numerous to file as individual plaintiffs, must be similarly affected by the legal questions raised in the case, and that class members interests will be adequately represented by the named plaintiffs. Not surprisingly, the judge found that the Quinnipiac plaintiffs satisfied this standard.

Class actions are fairly common in Title IX cases. Cohen v. Brown was a class action, as was the female wrestlers' case against UC Davis and the female athletes' case against Slippery Rock (to name a couple). Class action posture helps ensure that the plaintiff's claims for prospective relief (such as a permanent injunction like the Quinnipiac players are seeking) doesn't become moot when the named plaintiffs graduate.

Next up in the Quinnipiac litigation is the bench trial, scheduled to begin on June 20.

The judge's order can be found at 2010 WL 2017773 (D. Conn. May 20, 2010)

Quinnipiac v-ball not a sure thing

During the midst of court proceedings last spring, Quinnipiac University in Connecticut reinstated women's volleyball under pressure about their Title IX compliance and some questions about doctored rosters.

But the university went ahead with its original plan of adding competitive cheerleading. And with the high turnout for that "team," the university is claiming they are well in compliance now--overcompliant in fact, says the president. This all means that volleyball is not safe from being re-cut. He is pitting sports against academics saying that the money from cutting teams can be used to find 5 full-time professors. There's nothing that says you cannot prioritize academics. But what happens is that sports get pitted against each other as they started to last spring when some of the arguments we heard in court pitted the cheerleaders against the volleyball players.
And despite the fact that we were happy that volleyball got reinstated (and a little miffed at the way men's sports were dropped in a miscontextualized zero-sum game explanation), we here at the Title IX Blog were eager to see how a court would treat competitive cheer in a Title IX case.
We still may get that opportunity. Litigation is technically still ongoing and if volleyball does get re-dropped, we may see another lawsuit about the validity of counting cheerleading toward Title IX compliance.

Cheerleading to ease Title IX controversy?

That's the thought of a writer in New York who believes that the growth of competitive cheerleading and its acceptance as a sport by some schools could help ease all the Title IX controversy over "quotas."
Would that it were so (or that we would want it to be so).

From what I have heard and read on blogs, in personal correspondence, and in the media, the competitive cheerleading issue has engendered more controversy--nearly every day, in fact, in recent weeks. (For more of a "history" on the emergence of competitive cheerleading click on the cheerleading tag.)
Last month was the Quinnipiac case in which the university cut women's volleyball and elevated cheerleading to varsity status. The volleyball team won an injunction preventing QU from cutting it until the lawsuit charging non-compliance with Title IX was complete. (Mediation is currently underway in that case.) But the discussion around competitive cheerleading in that case seemed to die when the volleyball team won their injunction.
Currently we have Florida Parents for Athletic Equity filing an injunction and lawsuit against the Florida High School Athletic Association over cuts to all athletic competitions except football and cheerleading. But the cheerleading issue has not received a lot of the coverage. We do know that there are far more male football players than female cheerleaders which makes the cuts inequitable, of course. But Nancy Hogshead-Makar, one of the lawyers for FPAE, has concern over cheerleading as a competitive, varsity sport. My guess is that those competitive cheerleaders are, in most cases, also sideline cheerleaders. And that is a big no-no if you want to count your cheerleaders as student-athletes.
A recent article in Inside Higher Ed has done a better job than most in addressing the cheerleading controversy and includes information about both QU and Florida as well as comments from Hogshead-Makar.
I predict (may be eating my words on this one) that the cheerleading issue is going to have to be decided soon. The case-by-case basis that OCR has allowed for is a little too abstract. It also places the burden on female students who have been denied a sporting opportunity (for example when a women's club sport is not elevated) to sue their school when it decides to take the cheap way out and elevate cheerleading. This, in effect, is pitting these athletes against the cheerleaders--an issue that was raised in the QU case by the cheerleading coach. It's an unfortunate situation, at best.
Also I see a difference between being treated like a sport and actually being a sport. And this is contentious territory. Competitive cheerleading is being counted as a sport for Title IX purposes when the team is treated like other varsity teams in terms of access to coaching, competition, facilities, etc. But is it really a sport just because it involves athletic elements? What definition of sport do we employ? If, as many claim, cheerleaders are largely former gymnasts, why don't we just have more gymnastics teams? It's hard to believe gymnastics is a dying sport if there are so many cheerleaders with gymnastic skills and experience.
I have some doubts though that when (if?) the final decision is made it will be based on defining a sport. It probably seems easier to base it on how the participants are treated. If this turns out to be the case, I encourage marching bands everywhere to apply for varsity status. There are plenty of athletic elements there: the actual marching, the need for good lung capacity, and lots of push-ups! Because if we take cheerleaders away from the sidelines can the marching band be that far behind?

Mediation in QU case

Judge Stefan Underhill, who ordered the injunction on the Quinnipiac Title IX/volleyball case recently, has sent the case to a magistrate judge for mediation talks. No word here on what next week's talks will address, but both sides made the request to the district court. My guess as to likely topics: how QU counts and reports its number of participants; cheerleading as a sport; equitable treatment of the men's and women's program(s).

Cutting costs without cutting sports

In the wake of the Quinnipiac case, in which it seemed that the university somewhat spitefully cut men's track and field when it was told it had to retain women's volleyball, at least temporarily, in order to work out some Title IX issues, it is a good time to note that budgets cuts do not have to equal cutting teams.
In recent meetings held by the Pac-10, the conference is looking to cut costs by trimming a certain amount of fat in the form of hotels for players before home games and limiting the number of players and support staff travelling to away games.
And this article out of New York about local DI schools Hofstra and SUNY Stony Brook speaks of the various measures these schools are taking to deal with their budgets shortfalls while remaining competitive, remaining Title IX compliant (Stony Brook is adding scholarships, in fact), and keeping all their teams. These schools are looking for schools closer to home to add to their schedules. They are seeking tournaments that do not require extensive travel. Such plans to limit travel could also have the added bonus of helping student-athletes balance their schoolwork with their athletics.

Volleyball Reinstated at QU, Men's Track Eliminated

After being temporarily enjoined from cutting the women's volleyball program, Quinnipiac University has decided to permanently reinstate the team. This move will likely result in a settlement of the Title IX lawsuit against the university, according to the volleyball team's lawyers from the ACLU of Connecticut.

However, ACLU is criticizing the decision to simultaneously cut the men's outdoor track team as a "false choice that unnecessarily pits men athletes against women athletes," since they had presented evidence that the athletic department could meet their budget targets without cutting any teams. Indoor track had already been eliminated, at the same time the volleyball cut was announced.

Quinnipiac has also announced plans to review for accuracy the participation figures that the athletic department reports to the Department of Education. This decision responds to the court's finding that some men's teams actually carried more players than were reported, while some women's teams were forced to carry "extra" players without the corresponding support and resources to provide them with genuine opportunities. Quinnipiac wisely chose an official from outside the athletic department (specifically, the VP of Academic Affairs) to lead this review effort.

Judge Grants Injunction to Save Qunnipiac Volleyball

Quinnipiac University women's volleyball will remain a varsity sport, for another season anyway, after federal district court judge Stephan Underhill granted the preliminary injunction the team was seeking to stave off the university's effort to terminate the sport for budgetary reasons.

The judge determined that the volleyball plaintiffs satisfied their burden of showing a likely success on the merits of their claim that QU cannot cut women's volleyball and still comply with Title IX, which for QU meant demonstrating proportionality in the number of athletic opportunities afforded to women and men. Though the judge was not persuaded by the plaintiffs' challenge to QU's plans to count newly-added competitive cheerleading squad as athletic opportunities (he stated that they "do not appear likely to prevail" in that argument) he did agree that QU likely would not satisfy the proportionality test because of its roster management policy. "The plaintiffs in this case offered credible testimony that the athletic department’s roster management numbers did not accurately reflect the actual number of genuine participation opportunities available to both genders at Quinnipiac," the judge wrote in the ruling. The practice of setting minimum "floors" for women's teams, in particular, did not create "genuine opportunities to participate." In the case of women's softball, for example, those extra players added for proportionality purposes were cut from the team after the first day of the season, when numbers are reported. On the other side, QU instituted caps the size of on some of their men's teams, which also proved meaningless because players were added above the cap after the numbers were reported on the first day of the season. Thus, said, the judge, he had "no confidence" that the numbers QU reported to the Department of Education under the Equity in Athletics Disclosure Act, which provided the basis for QU's proportionality calculations, were accurate reflection of athletic opportuntities at QU.

Litigation is not over, as the court will now proceed to evaluate the merits of the plaintiffs' case for a permanent injunction. I haven't seen a timetable, but I expect the court will issue one relatively soon.