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.

Some Say Delaware State Equestrian Is Safer After Cheerleading Ruling

This article in Delaware Online suggests that the recent Quinnipiac ruling about the Title IX status of competitive cheer will make it harder for Delaware State to prove that its decision to terminate equestrian did not violate the law.

Actually, I don't think the ruling will have much legal effect at all. Unlike at Quinnipiac, Delaware State's proposed opportunities in cheerleading do not even come close to closing the proportionality gap. Its argument that adding cheer demonstrated prong 2 compliance was never a viable argument, in my opinion. No court has interpreted "history and continuing practice of expanding opportunities for the underrepresented sex" to be satisfied by a school that cuts a viable women's team.

But either way, some are now predicting that Delaware State is now more likely to cancel its plans to end its equestrian program.

Interestingly, the article provided a little insight into why Delaware State, an HBCU, has an equestrian team in the first place:

Many see the equestrian legal troubles as an unfortunate legacy of former president Allen Sessoms' administration. In 2005, a faculty steering committee, chaired by Hoff, recommended field as a better way to expand sports for females, but Sessoms later sold the group on equestrian.

The sport has proven to be more expensive than expected, costing close to $600,000 per year.

"Of greatest concern to DSU is the fact that so little of this money goes to student welfare," DSU lawyers said in court documents. "On the contrary, most of the expenses are for the housing and care of the horses."

Daniel, the Title IX consultant, said he would have advised against a school like DSU starting equestrian. Charlie Wilson, president of DSU's faculty senate, said he and other faculty found the creation of the team "curious" and regarded it as a "pet thing" of Sessoms' administration.

Delaware State P.S.

The Delaware State University equestrian team wrapped up its season a couple of weeks ago. As we noted, the team will continue on for one more year, according to the university whose decision not to cut the team this year was reversed after two lawsuits were filed.
One of those filing a lawsuit, recruit Melia Blakely, has signed a letter of intent with University of South Carolina.
Current team members are still working with lawyer on Title IX compliance issues.
I suspect will we hear more eventually on this issue.

DSU changes its mind

Right before a scheduled hearing before a district court judge in Delaware, Delaware State University announced it would keep its equestrian team for another year. This rendered, of course, the hearing, which was an attempt by the plaintiffs to get an injunction against the cut while the lawsuit was pending, unnecessary.
The decision was apparently made known to the judge in the case on Tuesday. But the extension is only for one year, according to university officials, who say the equestrian team will not continue any longer than that. Also, the initial lawsuit filed by a DSU equestrian recruit has reportedly been settled.
The university still contends that it is Title IX compliant--even if it dropped equestrian. But lawyers for the team (in a lawsuit separate from that of the recruit) still plan on pursuing their case against the university for lack of compliance

Delaware State Invokes Prong 2, Cheerleading in Defense

Delaware State University is reportedly defending its decision to cut the women's equestrian team by claiming it nevertheless complies with prong two: the compliance test that requires a university to show a history and continuing practice of expanding women's athletics. The problem with DSU's prong two argument is that all courts that have considered whether cuts to women's teams violate Title IX have recognized that cutting a viable women's team necessarily violates prong two: reducing opportunities

This is the tradeoff for the flexibility prong two provides in the first place: schools don't have to achieve proportionality (prong 1) or full accommodation of interests (prong 3) overnight; they will not violate the law if they are working towards those goals by program expansion. But this flexibility is not boundless: it does not allow a university to stall (hence, "continuing" practice) and it does not allow a university to backslide by cutting a viable women's program. Rather, as the First Circuit said in Cohen v. Brown, it requires a university to "march uninterruptedly in the direction of equal athletic opportunity." More recently, the district court in Connecticut articulated an identical interpretation of prong two when it held that Quinnipiac University necessarily did not show a history and continuing practice of program expansion after it cut its viable women's volleyball team: "That is because, by eliminating a women’s team while there is sufficient interest to field one, the University will have failed to demonstrate that it is committed to expanding opportunities for the underrepresented gender – women."

Coincidentally, it looks like the court's prong two interpretation is not the only reason to compare DSU's case to Quinnipiac's. DSU's second defense of its decision to cut equestrian is the announcement of plans to add a competitive cheer team. However, this does not change a court's likely outcome on the prong 2 question. As long as one sex (here, women) are underrepresented in athletics, prong 2 compliance means the University has to keep its viable programs AND add new ones. Cutting-and-adding does not count.

A second issue is whether adding cheer put the university in compliance with prong 1. If so the prong 2 argument is not necessary. But putting aside the obvious argument that DSU should not be able to count cheer opportunities that don't yet exist, there is no way DSU will satisfy prong 1 by adding cheer. The disparity between the percentage of women students and women's athletic opportunities is so severe that by my calculation, DSU would have to add 156 cheer athletes-- more than doubling the current number of women's athletic opportunities -- to comply with prong 1. Surely this is not what DSU is planning. If it is, it's got other problems, as courts have started to crack down on universities that manipulate prong 1 calculation by padding the rosters of women's teams.

In sum, I continue to predict that this case will resolve quickly and in favor of the present and recruited equestrians who have filed suit against DSU.

Second Lawsuit Filed Against Delaware State

Fifteen members of the recently-terminated Delaware State equestrian team have filed suit in federal court, challenging the school's decision to cut their team as a violation of Title IX. The Women's Law Project and Flaster Greenburg, a Philadelphia-based law firm. The attorneys expect a hearing on their motion for preliminary injunction sometime next month.

DSU already faces a similar lawsuit, filed by an incoming student who had signed a letter of intent to join the team.

As I have mentioned before, this should be an easy victory for the equestrians. DSU does not satisfy the proportionality prong, so it cannot cut a viable women's team without violating the other two alternatives for compliance, which require either program expansion or satisfying the interests and abilities of the underrepresented sex.

Delaware State sued over equestion cut

As Erin subtly foreshadowed last month in her post about Delaware State cutting men's tennis and women's equestrian because of budget issues, a lawsuit has been filed. It is not by a current member of the equestrian team but by a Canadian who signed a letter of intent to ride for DSU next year. She found out the program had been cut via Facebook. More to follow, I am sure.

Delaware State Violates Title IX With Recent Elimination of Equestrian Team

Via Jarrett at HBCU Sports Blog, I learned that Delaware State University recently announced a decision to eliminate men's tennis and women's equestrian. The decision, which comes less than a year after announced elimination of the men's wrestling team, was made to help balance the athletics budget and to improve the competitiveness of the remaining teams. Unfortunately, as I told Jarrett, the elimination of women's equestrian almost certainly violates Title IX.

Title IX's regulations governing athletics require, among other things, equity in the number of athletic opportunities for members of each sex. A school must comply with that requirement in one of three ways: (1) substantial proportionality, (2) continuous expansion of opportunities for the underrepresented sex, and (3) full accommodation of the interests of the underrepresented sex. At DSU and most universities, women are the underrepresented sex. They constitute 60% of DSU's student body, but receive only 46%* of the athletic opportunities. Therefore, cutting a viable women's team necessarily violates the second and third prong: it is the opposite of program expansion for the underrepresented sex, and it results in lots of members of the underrepresented sex (the former athletes) with unmet interest. This leaves only one compliance prong left to consider: proportionality. Unfortunately in DSU's case, the cuts of men's tennis (6 opportunities) and women's equestrian (20 opportunities) makes their proportionality score worse, not better, as women would receive only 44% of opportunities and men 56%.*

If the equestrians sue, I predict they will win an injunction that would protect them from being eliminated. Unfortunately, this would put DSU in the position of having to make cuts elsewhere.
The unfortunate reality is that a great disparity existed in the proportion of athletic opportunities available to men and women. Because of that disparity, Title IX protects women from losing even more, leaving men's teams to bear the brunt of further cuts. Unfortunately, when this happens, people will blame Title IX for the cuts to men's teams. But both the gender disparity and the athletic department's budget problems are problems of DSU's creation, not Title IX's.

*Based on current participation figures reported to the Department of Education, adjusted for the announced elimination of wrestling.

Delaware State cuts wrestling

DSU announced yesterday that it is cutting its wrestling team due to economic issues, gender equity concerns, and issues around the team's academic performance.

The last is a problem plaguing several DSU teams and will likely result in some NCAA sanctions.
But it was the wrestling team that received the bad news. No word on the criteria used to make the decision, but it seems like there was very little department support for the team in recent years. Four coaches in the past four years, no dedicated facility and the increasing awareness that the team needed more than the school was able to provide. In the end, the department will save just under $40,000 by eliminating the team (not including, of course, projected costs to make improvements).
The Delaware wrestling community is taking the news hard given that now no state school will field a wrestling team. University of Delaware cut their team in the early 90s.
A local high school coach, Dicky Howell, spoke repeatedly of the lack of institutional support for the team and the student-athletes but turned around and blamed Title IX anyway citing the loss of wrestling teams since the passage. But as many of us know, and as Donna Lopiano reiterated last week in her talk at Western New England College, wrestling's demise isn't because of Title IX. It just is not as popular of a sport any more. There are certainly pockets of interest but other sports have overtaken it in terms of participation. And with the increasing emphasis on specialization at earlier and earlier ages, less popular sports see an even sharper decrease in participation. Maybe more kids would wrestle if they weren't playing soccer or lacrosse year-round.
And, of course, we are only speaking of men's wrestling. Women's wrestling seems to be growing. It remains to be seen how the sport, which the NCAA still has not recognized as an emerging sport, grows in the coming years.

Two Sexual Harassment Cases Survive Summary Judgment

Federal district court judges have denied defendants' motions for summary judgment in two separate sexual harassment cases this past week, paving the way for factfinding by a jury in both cases.

In Padula v. Morris, a district court in California held that the allegations by a female high school student that her male high school principal hugged her, "rubbed her shoulders and asked her what was the matter in the school hallway, and, during a disciplinary meeting, told her, 'I don't know whether to hug you or spank you' and then hugged her and swatted her on the buttocks as she walked out the door" were legally sufficient to constitute severe and pervasive harassment under Title IX. The court rejected the defendants' attempts to analogize to workplace discrimination cases and peer harassment cases in which acts of similar severity did not constitute sexual harassment, stating "what may not be offensive enough to be actionable between adults [or between children] could be actionable between an adult and a child."

In Hurd v. Delaware State University, the district court in Delaware held that the plaintiff, a female college student, could proceed against both her professor, Dr. Panda, and Delaware State University. The plaintiff had alleged "at least seven detailed instances, involving sexually explicit statements and advances" and that "because of Dr. Panda's harassment, she missed approximately six to ten classes." Concluded the court, "a reasonable jury could find that the environment was sexually hostile." Moreover, a jury could find that Delaware State responded with indifference to knowledge of the harassment, even though "Hurd did not file a formal complaint and chose, instead, to send an e-mail to Dr. Panda." Action by the plaintiff does not necessarily absolve the university of a responsibility to address the harassment, so "DSU's inaction was reasonable is a question for the jury."

Also notable in light of the Supreme Court's pending resolution of Fitzgerald v. Barnstable School Committee, the court denied plaintiffs' claims under section 1983 that Dr. Panda and Delaware State had violated her constitutional rights, calling those claims "subsumed by Title IX."

Decisions are:
Padula v. Morris, 2008 WL 4370075 (E.D. Cal. Sept. 24, 2008).
Hurd v. Delaware State Univeristy, 2008 WL 4369982 (D. Del. Sept. 25, 2008).