End of the Road for Cincinnati Rowing?

It seems that the final shoe has fallen on the University of Cincinnati rowers' efforts to reinstate their team. As readers know, Cincinnati cut the rowing team (and replaced it with lacrosse) in the fall of 2006, coincidentally (or not?) after the rowers filed a complaint against the University for failing to provide adequate equipment and facilities. The rowers then challenged the University's decision to cut rowing, arguing that it was unlawful because the reduction in opportunities for women athletes would bring the University out of compliance with Title IX, and because of the seemingly retaliatory nature of the decision.

In September, the rowers lost their effort to obtain a preliminary injunction against the cut when they failed to convince a judge that they were likely to win on the merits (a necessary showing for an injunction). The rowers attempted to show that the University would be out of compliance with all three prongs, including proportionality, using a proportionality score that was based on the "duplicated" athlete head count (where athletes who participate in more than one team count once). But relying on the unduplicated count (number of actual athletic opportunities), that OCR says is correct, Cincinnati's athletic opportunities are proportional even after cutting rowing. So the judge denied the preliminary injunction, predicting that the rowers would not win on the merits.

This turned out to be the right call. Last week, the court granted the University's motion for summary judgment and dismissed the rowers' claims. The court affirmed that using unduplicated head count, the university complied with prong one and thus could lawfully cut a women's team. And even though the rowers seemed to no longer be pressing their argument that the University cut rowing in retaliation for their efforts to secure better equipment and facilities, the court noted "the absence of any evidence that the University's actions were motivated by exercise of Title IX rights."

I think it's unlikely the rowers would appeal this decision. An appellate court is unlikely to reverse the lower court's decision to follow OCR's instructions on how to measure proportionality. And even if the rowers could convince the district court that the retaliation claim was still active, the judge has sent a pretty clear signal that he doesn't think that argument has merit.

It must be terribly disappointing for these rowers, or any student athlete, to lose their team in the middle of their college career. I hope they are able to stick with the sport as a club or by transferring to other programs. Perhaps Cincinnati, and all universities that cut active sports, could have done a better job at long term planning to avoid the situation of having to downsize. But on the legal question, however, this case reaches the right result. Title IX protects women's sports from cuts when (and only when) women get less than their fair share of athletic opportunities. It does not afford this protection when the university is in compliance. Nor should it -- out of fairness to all teams, and because the autonomy that comes with compliance helps motivate universities to comply.

Decision is: Miller v. University of Cincinnati, 2008 WL 203025 (S.D. Ohio Jan. 22, 2008).

Court Won't Enjoin Rowing Cut at Cincinnati

A federal district court in Ohio recently denied the University of Cincinnati women's rowing team's motion to enjoin the university from cutting their team.

To recap, Cincinnati rowers complained to OCR a year ago that the University was not providing women's athletics with equivalent facilities and equipment. Much of this dispute focused on the University's failure to make progress on plans to build a boathouse. Soon thereafter, the University announced that it was cutting women's rowing and adding women's lacrosse.

The rowers filed a lawsuit in federal court, challenging the University's decision as a violation of Title IX and seeking a preliminary injunction. Specifically, they alleged that the cutting a viable women's team was a per se violation of the third compliance prong ("effective accommodation" of female students' "interests and abilities" in varsity athletics). The University argued that it did not need to comply with prong three because it complied with prong one (proportionality) instead.

The rowers had argued that the percentage of female athletes (43%) was not in proportion to the percentage of female students (47%). But as the court pointed out, OCR guidelines instruct that proportionality is determined by comparing the percentage of opportunities for female athletes to the percentage of female students. Because some individual female athletes at Cincinnati compete in more than one sport, the percentage of opportunities for female athletes is higher (49%) than the percentage of female athletes (43%). Comparing the percentage of opportunities for female athletes (49%) to the percentage of female students (47%), Cincinnati clearly satisfies prong one.

Next, the court determined that the rowers' were unlikely to succeed on the merits it their argument that the University's decision to cut their sport was made in retaliation for their initial complaint to OCR about the lack of equipment and facilities. The only direct evidence of retaliation was an email sent by the former athletic director to the University president that evidenced a "retaliatory spirit." However, it was this athletic director's successor who made the decision to cut rowing.

While the rowers' seemingly valid complaint about the lack of boathouse provided the university with a motive to cut the team rather than face a court order to build a boathouse, the court determined that there was substantial evidence to the contrary. Specifically, the university continued to support the rowing team after the complaint was filed, expending money on uniforms and equipment, as well as performing site evaluations for a potential boathouse and even purchasing an option on one potential site. The court reasoned that if the university was willing to do this in the absence of a court order, it does not seem likely that the University cut the team to avoid having these responsibilities imposed by a court order.

Though the rowers have failed to obtain a preliminary injunction, their underlying case is still pending in the district court. The proportionality argument seems unlikely to prevail, but I wonder if the rowers could convince a jury that the University's decision was retaliatory. It is certainly plausible that the former AD's retaliatory email represents the spirit of the athletic department, including the successor AD who made the decision to cut the team. The question is whether the rowers could establish this as a matter of fact.

The decision is: Miller v. University of Cincinnati, 2007 WL 2783674 (S.D. Ohio, Sept. 20, 2007)