UC Davis announces cuts

As expected, UC Davis will be cutting four sports due to the extreme budget shortfalls being experienced by California schools. Women's rowing, men's wrestling, men's track and field, and men's swimming and diving will not be on the slate of varsity sports next year. As we mentioned previously, Davis fields a much higher than average number of sports than its Big West Conference peers making it a difficult financial juggling act even in good economic times.
The expected savings is $5 million over five years. But the fiscal restructuring plan in the athletic department will eliminate its $1 million+ deficit and make it fiscally solvent in 3-5 years.
Of course Title IX was one factor in deciding which teams to cut. If you read the news that came directly from Davis you will see that the cuts affect 73 female student-athletes and 80 male student-athletes. If you read the news that came from the AP and was re-posted on ESPN, you will read that three men's sports got cut and one women's sport was cut. In other words, it looks like men are bearing the overwhelming brunt of the cuts, which is not the case.
Davis is required, as are all University of California system schools because of a previous Title IX settlement, to maintain proportional opportunities within 5 percentage points. It currently does so and thus cuts would not--and did not as we see--disproportionately one gender.

Irvine forced to cut sports

The University of California Irvine is looking to cut $1 million from its budget by doing some reshuffling and, unfortunately, by cutting sports. Five programs will be discontinued next year: men's and women's swimming/diving, sailing, and women's and men's rowing. Given the current fiscal crisis in the country in general, but of course in California, the cuts are not surprising and likely not the last we will see out of CA schools.
No word on how this will affect UC Irvine's adherence to California state school's equity requirements.

Western Washington Has Too Many Women's Sports After Cutting Football

In January, Western Washington University announced its decision to cut its NCAA Division II football program to help reduce the athletic department's deficit. While the university's records apparently show the program breaking even in 2008, university officials estimated that $10 to $12 million dollars would be required to sustain the program going forward, and considered such an investment unrealistic in today's economic climate. It was reported Tuesday that efforts to appeal to the state legislature to save Western football have failed.

The article also reports that Western now plans to reduce the size of the women's track and rowing teams in order to restore a proportionate balance of athletic opportunities between the sexes. The loss of 96 football players brings the percentage of athletic opportunities for men to 36%, which is out of proportion with the percentage of men in the student body (44%). Nor can Western rely on the alternative compliance prongs; since men are now the "underrepresented sex," cutting football likely precludes the university from claiming compliance under prong two (history and continuous practice of program expansion for the underrepresented sex) or prong three (full and effective accommodation of the interests and abilities of the underrepresented sex).

The Athletic Director admits, however, that the cuts to rowing and track will actually benefit those teams, which had been stretched to provide a more-than-comfortable number athletic opportunities so that the university could claim compliance via proportionality. This is an interesting point, as it highlights the common and often overlooked tendency by athletic departments to squeeze opportunties of existing women's team, rather than creating new opportunities in new sports, or expanding the capacity of existing teams in a meaningful way. While the appearance of compliance exists, the result is still discriminatory. Here's a metaphor: If a parent buys six toys for her son, and six for her daughter, what should she do for when another daughter comes along? She could buy six more for the new child, or make each of the older children give her two of theirs. Or, a parent could do what Western and other schools have done: make the daughter break each of her six toys in half to give half to the younger sister. Yeah, each kid has 6 toys. Proportionality achieved. But the daughters' toys are clearly inferior to the son's at that point.

Take away some of the son's toys, and you can justify giving the daughters fewer toys too. Only now there is room to make theirs somewhat higher quality. And thus, Western has created a situation where it can claim women benefit from cuts to men's teams. Notice how even when proportionality is being applied in reverse ("forcing" cuts to women's teams, instead of men's) the usual discourse ensues?

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).

Apples and Oranges

Club sports at most schools are funded by a recreational services department, while varsity intercollegiate sports are funded by athletic departments. This is the case at the University of Iowa. Recreational Sports, however, can usually not afford to completely fund a team and that team looks elsewhere for money: fundraising, dues, etc.

According to the student newspaper, The Daily Iowan, the men's rowing club at Iowa has made a request to the student government association for money to buy a new shell. This all seems reasonable even though student government has never before funded a club sport. They seem open to the possibility.

What is curious is that in the presentation to the association, the team plans to relate what the women's rowing team receives and suggest that Title IX is to blame for the men's current situation of poor equipment and large out-of-pocket fees.

But women's rowing at UI is a varsity sport. It was made a varsity sport in an attempt to comply with Title IX. That has nothing to do with the men's team.

The argument that the women rowers get more money than men rowers is inapplicable in this case, since nothing in Title IX requires intra-sport equity. Moreover, team captain Meylon's comment that "Since [Title IX] men's rowing at Iowa has been on a downward spiral" seems purely sour grapes in this situation. If Meylon and others are sore that men's rowing does not have varsity status, blame the excessively large football roster the university has or the millions of dollars the administration pumps into the football and basketball programs.

I was a little surprised that both the newspaper and the team members pursued this line of reasoning. After all, they have one of the foremost experts on Title IX, Dr. Christine Grant, right there. But it does not seem anyone spoke with her.

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)