Ellen J. Staurowsky, Ed.D., Professor, Sport Management, Drexel University
Contributing Writer
In November of 2017, six current female students, eight alumnae, and two former head coaches of women’s teams filed a lawsuit against Guilford College (GC) and the athletic director (AD), in his individual and official capacity, alleging administrators at GC denied female athletes equitable access to athletic opportunities and fair treatment, denied a female coach equal pay under the Equal Pay Act, and retaliated against the co-head coaches of the track and field program for their efforts to remedy the alleged Title IX inequities (see Staurowsky, 2017 for more details). On January 17, 2018, Guilford College contemporaneously filed two motions to dismiss charges that the College had intentionally and negligently inflicted emotional distress (IIED & NIED) on the plaintiffs (who are referred to in the motions and in the response as Athlete Plaintiffs and Employment Plaintiffs) and in their answer to the complaint flatly denies assertions that the athletic department violated Title IX.1 They further argue that the class was not valid and/or not adequate to serve as representatives of the class.
Motions to Dismiss Claims of Intentional & Negligent Infliction of Emotional Distress
In response to the plaintiffs’ claims that they were subjected to intentional and negligent infliction of emotional distress, Guilford argues three things. First, that as a question of law, the Plaintiffs have not been able to make a plausible claim to satisfy the high bar set in North Carolina for behavior that meets an “extreme and outrageous standard”. Citing to Briggs v. Rosenthal (1985), this standard requires conduct that is “beyond all bounds of decency” and “regarded as atrocious” and “utterly intolerable in a civilized community”. Guilford argues that the Athlete Plaintiffs’ assertions of alleged discriminatory treatment fail to rise to a level warranting relief. In the case of the Employment Plaintiffs, Guilford notes that “Allegations of conduct that is harassing, physically threatening, offensive, and retaliatory have all been held to be insufficient to meet this standard” (Cash v. Guilford College et al., 2018, Brief in support of motion to dismiss, p. 10). Specific to the Employment Plaintiffs IIED claims, Defendants argue that even if the allegations were true those should be dismissed because courts in North Carolina have been disposed to find extreme and outrageous conduct to have occurred in employment settings “…only in cases involving sexual advances, obscene language and inappropriate touching”. Defendants further argue that North Carolina courts have rejected arguments that intentional discrimination was an outrageous act in itself.
Second, according to the Defendants, the Plaintiffs plea that they were also subjected to negligent infliction of emotional distress is “fatally flawed because they were premised entirely on alleged intentional conduct” and as such makes the prospect of stating a cause of action untenable. And third, for the Athlete Plaintiffs to be successful in alleging IIED or NIED the assertion that they had generally suffered “emotional distress, loss of self-esteem, [and] humiliation fell short in severity and in a disabling capacity to meet the requirement of emotional distress”. As a result, Guilford College moved for these claims to be dismissed with prejudice.
General Allegations
In response to the allegations that Guilford discriminated against female athletes in the provision of equipment and supplies and facilities such as locker rooms, practice and competition venues, they offer blanket denials on most allegations and report that any disparities are shared by male and female athletes (i.e., teams may have to vacate locker rooms to accommodate away teams or game officials). They emphasize that some of the off-campus facilities they rely on to provide opportunities for women’s swimming and track and field are respectively “excellent” and “outstanding”. They further deny that GC has ever taken a position that money generated through its athletic booster organization known as the Quaker Club is “…irrelevant to matters of gender equity” (Guilford College response, 2018, p. 14).
Other factual matters are also contested by Guilford in its response. Contrary to the claims of the Plaintiffs in Cash v. Guilford (2017), GC argues that media support in the form of streaming and photography services are made available to both male and female athletes, men’s and women’s teams. The College also challenges the assertion that cheerleaders are available at football games and never cheer at women’s contests. And concerns raised about failure to provide equitable athletic training support to female athletes was countered with an argument that any perceived favorable treatment of the sport of football in the assignment of athletic training staff at practices and games is stipulated “…by rules not established by Guilford” (Guilford College response, 2018, p. 13). Additionally, GC notes, decisions regarding assignment of athletic training personnel to practices and games is done on the basis of “…sports where injuries are most likely to occur” (Guilford College response, p. 13).
The disparities in budget that favor male athletes, described by the Plaintiffs as indicative of unfair treatment, is presented by Guilford as being reflective of the nature of the sports they offer and not a matter of gender. As stated in the response, “It is admitted that Guilford’s overall varsity program for men is more expensive to support that its overall varsity program for women, primarily because of the expense of a football program, and it is therefore admitted that Guilford spends more overall for men’s sports than women’s sports” (Guilford College response, p. 14).
Inequities in Compensation & Treatment of Coaches of Women’s Teams
Accused of not providing equitable support in the area of assignment of assistant coaches, Defendants admit periodic discrepancies in this kind of support to teams within the department. However, Defendants attribute these fluctuations to non-gender specific factors. Guilford argues that issues of pay equity and equal treatment of coaches of women’s teams under Title IX is preempted by Title VII. Given the factual dispute between the parties over whether the status of Kimberly Cash was that of a co-head coach, as Plaintiffs argue, or assistant coach as the Defendants argue, the issue of who Coach Cash would be compared to is an open question. A point that will Guilford may need to address is the difference in salary between head coaches of men’s and women’s team. According to Equity in Athletics Disclosure Act (EADA) data for the academic year 2015-2016, the average salary for a head coach of a men’s team was $45,692 compared to an average salary of $30,010 for a head coach of a women’s team. Among assistant coaches, there was an average discrepancy in pay of $7,800.
Guilford & Title IX’s Three Part Test of Athletics Participation
The test to assess athletics participation under Title IX includes three parts, with schools being required to meet only one of the three. The three-part test asks schools to address these questions:
Are athletic opportunities for male and female athletes proportional to their representation within the student body? OR
Has there been a demonstrated history and continuing practice of expanding athletic opportunities for the underrepresented sex? OR
Have the athletic interests of the underrepresented sex been fully and effectively accommodated?
The Plaintiffs in Cash v. Guilford College et al. (2017) concluded that GC was in violation of all three-parts of the test. In its response, Defendants take issue with that conclusion. In terms of the proportionality standard, GC admits that the athletic opportunities available in the athletic department disproportionally favor male athletes who choose to participate. However, “Guilford denies that the number of female students who participate on its varsity intercollegiate athletics teams equates to the number of opportunities the College provides its female students to do so” (Guilford response, 2018, p. 19).
In responding to the allegation that Guilford had failed to establish a history and continuing practice of program expansion, Defendant “…denies that the number of female team members equates to the number of opportunities Guilford provides… (Guilford response, 2018, p. 19). The Defendants further deny, in accordance with part three of the test, that female athletes at Guilford have not received opportunities that fully and completely respond to their needs. Acknowledging that members of the rugby club had, from time to time sought elevation of the club to varsity status, Guilford defended its decision to retain rugby at a club level because the majority of members consistently expressed a desire to remain at that level. According to the Defendants, while some female athletes may have expressed interest in other varsity sport offerings, that interest was not sufficient to warrant offering additional sports.
As a general assertion pertinent to violations of the three-part test of athletics participation, Guilford denies that “the number of female students who participate on a particular team equates to the number of opportunities Guilford provides” (response, 2018, p. 22). The response also posits numerous times that “the contents of the referenced EADA reports speak for themselves” (Guilford response, 2017, p. 19).
Concluding Thoughts
The underlying defense put forward by Guilford in response to allegations that its athletic program failed to afford female athletes equitable opportunities and fair treatment under Title IX, ignored concerns expressed by coaches, and engaged in retaliatory conduct toward those coaches in their advocacy on behalf of female athletes is a broad assertion that Guilford is, and has been, compliant with Title IX’s requirements. While Guilford’s assertion that EADA data speaks for itself, there are alternative readings depending on how the data is examined.
A comparison of EADA data reported in 2003-2004 and 2015-2016 offers food for thought. The proportion of athletic opportunities offered to male and female athletes at Guilford in those years remained virtually unchanged. Male athletes had access to 67%-68% of athletic opportunities offered at Guilford in those years; female athletes had access to 32%-33%. When the proportion of athletic opportunities is compared to the proportion of males to females within the student body, the gap favoring male athletes decreased but remained high. In 2003, males had 26% more athletic opportunities at Guilford compared to female athletes compared to the enrollment of males to females in the general student population. In 2015, that gap had fallen to 18%.
In the case of both athletic opportunities as well as number of reported athletes (a data point referred to in the EADA reporting system as “unduplicated numbers”), there were increases throughout (see Table 1).
Although EADA needs to be read cautiously and viewed conservatively relative to what it reveals about Title IX compliance, it does provide a window into what Guilford self-reported about its athletic program. Over the span of more than a decade, athletic opportunities for both males and females increased at Guilford, with opportunities for men increasing at more than twice the rate than for women. The unduplicated numbers, that represent individual athletes rather than athletes who may compete in multiple sports, shows a similar pattern of growth (See Table 1).
Table 1. Comparison of Number of Athletic Opportunities & Number of Athletes By Gender
Male Athletic Opportunities
Female Athletic Opportunities
Unduplicated Male Athletes
Unduplicated Female Athletes
2003-2004
186
91
185
82
2015-2016
326
155
307
133
Increase Over Time
140
64
122
51
Data from Guilford College Reports, Equity in Athletics Data Analysis Cutting Tool
An examination of the breakdown of athletic opportunities by sport and gender for the years 2003 and 2015 (see Tables 2 & 3) reveals that Guilford added sports for men and women while shifting the gender ratio of its student population from nearly 59% female/41% male in 2003-2004 to a gender balance that was 50% female/50% male in 2015-2016. This provides some insight as to how the gender composition of the athletic department remained effectively the same between 2003 and 2015 but the proportionality gap favoring males in terms of the provision of athletic opportunities dropped from 26% to 18%.
During the time that the gender balance within the student population was shifting, Guilford added sports in two waves. In 2003-2004, despite the large proportionality gap, the decision was made to add not only women’s sports but men’s sports as well. By the start of the 2004 academic year, men’s and women’s cross country, women’s swimming, and men’s tennis were offered at Guilford (Bamberg, 2003). Five years later, in 2009, the men’s and women’s track teams were added (“Guilford College adds…,’ 2009).
Table 2. Number of Male Participation Opportunities as Reported in EADA
Name of Sport
2004
2016
Change in # of Opportunities
Baseball
37
46
+9
Basketball
14
26
+12
All Track Combined
Not offered
47
+47
Football
76
123
+47
Golf
16
9
-7
Lacrosse
19
35
+16
Soccer
24
29
+5
Tennis
Not offered
11
+11
Total
186
326
140
Table3. Number of Female Participation Opportunities as Reported in EADA
Name of Sport
2004
2016
Change in # of Opportunities
Basketball
14
14
0
All Track Combined
Not offered
48
+48
Lacrosse
16
17
+1
Soccer
29
21
-8
Softball
15
29
+14
Swimming
Not offered
7
+7
Tennis
6
8
+2
Volleyball
11
11
0
Total
91
155
+64
In terms of the three-part test, based on the EADA data Guilford does not satisfy the substantial proportionality standard. Does the adding of women’s sports in 2003 and again in 2009 establish enough of a pattern to demonstrate a history and continuing practice of program expansion for the underrepresented sex? The additions of women’s cross country, indoor, and outdoor track accounts for 75% of the growth in women’s athletic opportunities at Guilford since 2003-2004. In sports like track and field, some have questioned whether it is appropriate to double count athletes competing in certain events simply because they occur in seasons designated as indoor and outdoor. For example, if an athlete is a hurdler and competes in the 100-meter hurdles, is it really a different participation opportunity if they run the 100-meter hurdle indoors or outdoors? And does counting athletic opportunities in this way artificially inflate participation rates in away that makes an athletic department appear to be offering more opportunities than they actually are?
And will Guilford be able to successfully make its case that the number of female athletes on teams is not reflective of the number of participation opportunities available to female athletes in their athletic programs? This would suggest that there were more places on women’s teams that could have been filled but were not because of satisfied female athlete interest. Other schools have attempted to make this argument but faced the challenge of explaining whether those purported unfilled slots were legitimate or were “phantom” slots.
There is a budgetary wrinkle, however, to be explored here. In the 2014-2015 academic year, 75% of the recruiting dollars were used to recruit male athletes. There may be non-gender specific reasons as to why the distribution of recruiting dollars is done this way. However, an argument might be made that such a distribution suppresses the ability of coaches of women’s teams to recruit effectively. When considered alongside the proportionality gap that favors male athletes, a question might be raised as to whether Guilford did enough to satisfy a history and continuing practice of program expansion. Sponsoring a women’s swim team with only 7 athletes may be suggestive of completely and fully meeting the interest of female athletes at Guilford but it may also be suggestive that the sport does not have the resources to be successful. The average squad size for an NCAA Division III women’s swimming/diving team in 2015-2016 was 19.9 (Irick, 2017). And then, despite Guilford’s answer that they were fully and effectively accommodating the interests of female athletes, will the affirmative efforts Guilford has made in some areas withstand scrutiny?
Beyond the issue of equity in the area of athletic participation, the host of other issues raised in this case (compensation and assignment of coaches, allocation of resources and finances, potential retaliation) await further exposition as this case moves forward.
1. The College’s answer to this complaint came just five days after funeral services were held Dr. Herbert “Herb” T. Appenzeller, a highly respected athletics administrator and sport management professor who served at Guilford for 37 years, 31 of those years as athletic director. A prolific scholar who wrote or edited 22 books and published a newsletter entitled “From the Gym to the Jury”, Dr. Appenzeller is regarded by many as a sport law icon (see “College mourns passing…”, 2018; Staff, 2018 for details).
References
Bamberg, M. (2003, November 6). Guilford adds four varsity sports. The Guilfordian. Retrieved from https://www.guilfordian.com/archives/2003/11/07/guilford-adds-four-varsity-sports/
Cash et al. v. Guilford College and Thomas Palombo. (2017). United States District Court for the Middle District of North Carolina. 1:17-cv-932. Retrieved from http://www.duffylawct.com/wp-content/uploads/2017/10/Guilford-College-Complaint.pdf
Cash et al. v. Guilford College and Thomas Palombo. (2018, January 17). United States District Court for the Middle District of North Carolina. Civil Action No. 1:17-CV-932. Brief in support of Guilford College’s motion to dismiss plaintiff’s claims of intentional and negligent infliction of emotional distress.
“College mourns passing of Herb Appenzeller.” (2018, January 5). Press release. Greensboro, NC: Guilford College. Retrieved from https://www.guilford.edu/news/2018/01/college-mourns-passing-herb-appenzeller
Equity in Athletics Disclosure Act Report. (2015-2016). Guilford College. Washington, D.C.: United States Department of Education. Retrieved from https://ope.ed.gov/athletics/#/institution/details
“Guilford College adds men’s and women’s track.” (2009, Feb. 9). Letsrun.com. Retrieved from http://www.letsrun.com/2009/guilford.php
Irick, E. (2017). NCAA sports sponsorship and participation report. Indianapolis, IN: National Collegiate Athletic Association. Retrieved from http://www.ncaa.org/sites/default/files/2016-17NCAA-0472_ParticRatesReport-FINAL_20171120.pdf
Staff. (2018). Sports law icon Herb Appenzeller passes away at 92. Sports Litigation Alert 15 (1).
Staurowsky, E. J. (2017, November 24). Quaker coaches allege Title IX violations & retaliation at Guilford College. Sports Litigation Alert 14 (22).
U.S. Department of Health, Education, & Welfare. (1975). Title IX regulations. C.F.R. Section 106.41. Retrieved from https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html
U.S. Department of Health, Education, & Welfare. (1979). Title IX and intercollegiate athletics.
