By Ellen J. Staurowsky, Ed.D., Professor, Sport Management, Drexel University, ejs95@drexel.edu
In Robb et al. v. Lock Haven University of Pennsylvania (2017), eight female athletes (six field hockey players and two swimmers) claim that routine failures to provide equitable athletic opportunities and benefits to female students constitute numerous violations of Title IX of the Education Amendments Act of 1972, 20 U.S.C. Sections 1681-1688 (“Title IX”). Their claim challenges the University on two fronts. Plaintiffs allege first that treatment complained of in the lawsuit is a part of longstanding sex discrimination that has existed within the Lock Haven athletic department from the time of Title IX’s passage to the present. And second, recent LHU athletic department reorganization plans will result in an exacerbation of existing gender inequities by eliminating the sport of women’s swimming and demoting women’s field hockey from NCAA Division I to Division II status.
As a class action lawsuit, the interests of the named plaintiffs, their teammates, and other female athletes currently participating in varsity sports at Lock Haven are represented. So too are the interests of prospective and future female athletes who aspire to play at Lock Haven or have been discouraged from, deterred, or are unable to participate at Lock Haven because of the discriminatory practices Lock Haven has been accused of engaging in. The identities of the proposed class may vary over time as some female athletes retire from their careers, transfer, or graduate and others move through the player pipeline. “While the existence of the class is enduring, the identity of individual members constantly changes daily, as is inherent in college athletics” (Robb v. Lock Haven, 2017, p. 6). Further, Title IX is a class based statute, meaning that in order for harms to accrue to an individual, discrimination is perpetrated against the entire class of women, most particularly given the sex-segregated structure of college athletic programs.
Background
According to the complaint, LHU offered a total of 18 varsity athletic teams at the time of the filing (8 men’s, 10 women’s). The LHU athletic department is a multi-divisional program, meaning that while the majority of sports compete at the NCAA Division II level, two of their programs compete in NCAA Division I. This arrangement is reflected in LHU’s conference affiliations. Lock Haven is a member of the Pennsylvania State Athletic Conference (PSAC), comprised of 18 institutions within the state that compete at the Division II level. Lock Haven has been a member of the PSAC since the founding of the conference in 1951, something it shares with 13 of the other PSAC schools. LHU’s wrestling program, which has been designated as a Division I sport since 1974, is a member of the Eastern Wrestling League. Field hockey, which has been designated as a Division I program since 2004, competes within the Atlantic 10 Conference.
In the fall of 2016, LHU’s athletic department was tasked by president Michael Fiorentio, Jr. with the prospect of developing a plan to deal with a budget deficit that had grown to over $300,000 in the span of four years, with an expectation that declines would continue through the 2020-2021 academic year. The athletic department was not alone in dealing with financially challenging times. Their fate was tied to the decreasing enrollments and rising deficits that were happening locally across units at LHU, within the Pennsylvania State System of Higher Education (PSSHE), and across the nation.
Under the guidance of the LHU athletic director, head coaches met to discuss strategies for how to respond to the budget crisis in their area and to formulate a plan to address the financial issues they were facing while addressing Title IX considerations. In January of 2017, LHU President Fiorentino released a document entitled Lock Haven University Athletics’ Department Proposed Realignment Plan. In accordance with requirements set forth by the Association of Pennsylvania State College and University Faculties (APSCUF), a union that represents the coaches, a counter-proposal to the administration’s realignment plan was put forward in February of 2017, called Points of Consideration From Coaches, Faculty, and Student-Athletes.
As a result of that process, four options were considered:
Option I — add women’s sports(s) (possibly women’s tennis and golf as well as NCAA emerging sports for women, rugby and bowling)
Option II — eliminate coaching FTE’s (a co-head coach contract in track and field was up for renewal, a non-renewal would realize a savings of $100,000)
Option III — move field hockey and/or wrestling from NCAA Division I to NCAA Division II
Option IV — discontinue selected sports.
A distinctive feature of the athletic department’s proposal was the emphasis on finding ways to enhance revenue streams through the growth of programs in addition to cost reduction strategies. Thus, the scope of their recommendations included adding women’s programs (emphasizing additional enrollments brought in by teams currently not in the menu of offerings), encouraging enhancement of other growth areas (enhancing LHU’s marching band program), and considering an increase in student fees dedicated to support athletics. The Administration, however, viewed the revenue growth proposals to be untested, unrealistic, or unfeasible. In the end, the institution moved forward with a plan to eliminate men’s indoor track and field and set in motion a plan that will ultimately lead to the demise of the women’s swim team and demotion of field hockey from Division I to Division II.
Title IX’s Tools in Assessing Compliance Within Athletic Departments
Under Title IX regulations, educational institutions that receive federal financial assistance are expected to offer programs to students that are free of sex discrimination. School authorities are expected to exercise affirmative steps to identify sex discriminatory practices and policies and remediate them whether anyone has complained or not.
In assessing whether schools provide equal athletic opportunities in compliance with Title IX, three general areas are outlined in A Policy Interpretation: Title IX and Intercollegiate Athletics (Policy Interpretation) (Office for Civil Rights, 1979): availability of athletic participation opportunities that accommodate interest and abilities of the under-represented sex; provision of equitable treatment, benefits, and services in other program areas1 ; and provision of athletically related financial assistance substantially proportional to the representation of female and male athletes in the program.
It is not sufficient for athletic programs to merely provide opportunities to compete. Consideration must also be given to the quality and competitive level of those activities and whether those meet the interests and abilities of both sexes.
The analytical frame developed in the Policy Interpretation to assess whether institutions offer athletic opportunities to students on an equitable basis is referred to as “the three-part test”. Offering flexibility to institutions, the three-part test requires that only one part of the test be satisfied in order to achieve compliance in this area. The parts include:
Proportionality, meaning that athletic opportunities offered to female and male athletes are substantially proportionate to the representation of females and males in the undergraduate student population; or
A history and continuing practice of program expansion reasonably responsive to developing interests and abilities of the under-represented sex; or,
Fully and effectively accommodating interests and abilities of the under-represented sex.
When an institution fails to meet the proportionality standard and cuts viable women’s sport teams, the institution also fails to comply with the two other parts of the test.
LHU’s Alleged History & Continuing Practice of Non-Compliance
As a condition for receiving or accepting funding from the U.S. government, educational institutions are required to submit a form called an Assurance of Compliance with the U. S. Department of Education (DOE). According to the complaint, in contradiction to those assurances, LHU“…. has received federal funds from DOE even though its athletic program has never complied with Title IX” (p. 19). The complaint further alleged that “LHU did not comply with the athletic regulations by the 1978 compliance deadline or at any time thereafter. Today, 45 years later, LHU still does not fully comply with Title IX” (p. 19).
In support of the plaintiffs’ contentions, they cite the following:
Data reported by LHU filed annually in Equity in Athletics Disclosure Act reports with the DOE for the academic years between 1995-1996 through 2015-2016 demonstrate that the institution was not providing equal athletic opportunities to female athletes, with gaps between 6.38% and 17.59%. When translated into participation opportunities (referred to as unduplicated numbers in the EADA report), those percentages represent a range from 69 to 184 in lost opportunities for females in those reporting years (see Exhibit B, Robb v. Lock Haven University).
Those figures may not be fully accurate because of alleged roster management practices that inflated the number of female athletes on rosters and included in those numbers women who did not satisfy the definition of a participant as set out in the Policy Interpretation.
Dimensions of LHU’s roster management plan was designed to make the athletic participation numbers look better without offering meaningful adjustments to gender inequities in the program while burdening coaches with teams of unmanageable size.
Because the proportionality gap was substantial enough to indicate the need to add a women’s sport during the past 22 years, LHU should have taken the affirmative and remedial step of adding women’s sports teams to address that gap.
In 22 years, between 1994 and 2016, LHU had not added a women’s sport. Further, the university cut women’s gymnastics in 1989-1990 and women’s tennis in 1992-1993.
There is ample infrastructure to support the adding of women’s teams in sports such as golf, tennis, bowling, and gymnastics given that Pennsylvania female high school athletes play all of those sports at the varsity level and that “LHU does not even offer all the sports sponsored by its own athletic conference…” (Robb v. Lock Haven, 2017, p. 24).
There is clear unmet female athletics interest on the LHU campus as evidenced by multiple requests from competitive women’s club wrestling and women’s club rugby to be elevated to varsity status between 2008 and 2013 and a recommendation from the Athletics Advisory Board to add women’s rugby in 2013. In 2015, LHU refused to add varsity teams in sports where surveys indicated female student interest, including women’s bowling, golf, and tennis.
In 45 years, LHU adopted only one actual gender equity plan to address issues in the athletic department. That plan was in effect from 1993-1998. In 2002, a committee chaired by an associate athletic director to examine gender equity concerns in the athletic department led to the promotion of women’s field hockey to Division I status. Other recommendations, however, including adding women’s sports, acting on coach inequities, and surveying student athletic interest and ability were not heeded.
External reviews of the athletic department commissioned by the institution and conducted by experts knowledgeable about college sport programs done in 2010 and 2014 revealed concerns regarding Title IX compliance. The 2014 report in particular noted that LHU was not in compliance with the three-part test and the roster management plan in place, which simply called for more athletes to be added to existing teams, was insufficient to deal with Title IX compliance in the long-term. Other violations of Title IX were also identified in the report.
In 2014, LHU was a defendant in a Title IX complaint filed by the Women’s Law Project with the U.S. Department of Education Office for Civil Rights. That complaint resulted in LHU entering into a Voluntary Resolution Agreement that it had not complied with at the time of the filing of the current lawsuit.
When taken in totality, plaintiffs allege that LHU has violated Title IX by not providing equal athletic opportunity to female athletes, by discriminating in the level of competition offered to female athletes that fall short of the level of competition offered to male athletes, and that female athletes at LHU are deprived equal treatment and benefits. Under the existing athletics realignment plan revised in March of 2017, actions taken in regard to the women’s swim team amounts to de facto elimination of the program through the non-renewal of the successful full-time coach, neglect of the program from the time the full-time coach was released of his responsibilities, decision to replace the full-time coach with a part-time coach, a reduction in the number of swim meets the team will compete in, and an intention to limit those meets only to home events. Such actions subject female athletes to treatment not experienced by their male counterparts in the department, where no other varsity teams are coached by part-time coaches, where the ongoing work of a team would not be interrupted at a critical juncture in the recruiting cycle, and where half of a competition schedule that limits participation to only home events does not satisfy Title IX’s expectation regarding competitive quality and opportunity.
While the field hockey team suffers a different set of burdens by being asked to fundraise for its survival without an assurance that at the end of the effort, even if they meet their goal, they will remain a Division I program, the negative impact on recruiting has and will continue because of the uncertainties around the program.
In contrast, while the realignment plan calls for the elimination of men’s indoor track, given the way NCAA rules are written, the decision holds little in the way of meaningful impact for the program. Male athletes will still be coached by the same number of coaches that they had before the decision was made, they will still receive the same amount of athletic aid, and they will still be able to run in 18 meets per year.
Status of the Case as of This Writing
Plaintiffs originally sought a temporary restraining order and preliminary injunction to compel LHU to cease actions that undermine the women’s swim and field hockey teams and call for the university to comply with Title IX. On June 9, 2017, the temporary restraining order was denied because plaintiffs were unable to demonstrate an injury in fact. The Court was not persuaded that damages suffered by the spectre of uncertainty surrounding the teams constituted irreparable harm because they have not, as yet, been eliminated or demoted. Therefore, their claims of harm were deemed speculative and hypothetical rather than injuries in fact.
Since that decision, a declaration by former LHU swim coach, Joel Blesh, details the expanse of work that a coach does on behalf of their team, focusing on the year-round nature of recruiting and the negative impact that an announcement to eliminate the team has on those athletes considering the program, those who intended to come to Lock Haven and enroll in the 2017-2018 academic year, and returning swimmers who were expecting to continue their collegiate career at LHU.
The plaintiff’s motion seeking a preliminary injunction is set to be heard on August 22, 2017 in the U.S. Courthouse and Federal Building in Williamsport, PA. Defendant LHU has requested an extension of time in the filing of their brief in opposition. The plaintiffs have been granted their request for expedited discovery.
References
Emily Robb et al. v. Lock Haven University. (2017, June 2). Case 4:17-cv-00964-MWB. Retrieved from PacerMonitor.com
Emily Robb et al. v. Lock Haven University. (2017, June 9). Case 4:17-cv-00964-MWB. Memorandum opinion and order. Retrieved from PacerMonitor.com.
Emily Robb et al. v. Lock Haven University. (2017, June 14). Case 4:17-cv-00964-MWB. Order scheduling hearing on plaintiffs’ request for preliminary injunction. Retrieved from PacerMonitor.com.
Emily Robb et al. v. Lock Haven University. (2017, June 16). Case 4:17-cv-00964-MWB. Order granting expedited discovery. Retrieved from PacerMonitor.com.
Emily Robb et al. v. Lock Haven University. (2017, June 20). Case 4:17-cv-00964-MWB. Declaration of Joel Besh. Retrieved from PacerMonitor.com.
Emily Robb et al. v. Lock Haven University. (2017, June 22). Case 4:17-cv-00964-MWB. Motion for extension of time to file brief opposing plaintiffs’ motion for preliminary injunction. Retrieved from PacerMonitor.com.
Title IX Intercollegiate Athletics Policy Interpretation. (1979). Federal Register, 44(239).
Title IX of the Education Amendments of 1972, 20 U.S.C. Sections 1681 — 1688.
Wallace, C. T. (2016). The lost haven of Sharon Taylor: Casualties in the battle for equality in women’s sports. Mechanicsburg, PA: Terremoto Grande Publishing.
1. Other program areas in this context refer to operational areas that support athletic programs and athletes. While not an exhaustive list, as per the Regulations and Policy Interpretation, frequently cited operational areas include “equipment and supplies; scheduling games and practice time; travel and per diem allowances; opportunity to receive coaching and academic tutoring; assignment and compensation of coaches and tutors; provision of locker room, practice, and competitive facilities; provision of medical and training services; provision of housing and dining facilities and services; and publicity”. Recruiting is another area.
