Colorado State University announced last month that it will replace its women’s water polo team with a women’s soccer team as a way to comply with Title IX and appease the U.S. Education Department’s Office for Civil Rights.
The resolution agreement, which stemmed from a 2012 lawsuit, means that the school will be adding six additional women’s scholarships and bring CSU into compliance by September 2016.
While the approach seems novel, it is not unique, according to Ellen J. Staurowsky, a sports law professor at Drexel University.
“Colorado State is not the first school to go down this path,” she said. “In the mid to late 2000s, the University of Cincinnati was sued by female rowers alleging discrimination there. Coincident to this action, the University had made a decision to drop women’s rowing and add women’s lacrosse instead. In this case, the plaintiffs were relying on duplicated headcount, arguing that the University was not in compliance with Title IX and that the step to add women’s lacrosse was in part, retaliatory. They were unsuccessful in making their case on either grounds.”
Helen Grant, a Title IX Consultant, added that the university’s job is tricky because of the proportionality, not only of scholarships, but dollars as well.
“What a lot of schools are finding out though is that with the addition of women’s sports over the years (and elimination of men’s), especially the ones with large roster sizes (rowing and equestrian) that the scholarship dollars are more in favor of the women than the men,” said Grant. “ADs believe that the way to comply with Title IX is to put more scholarship money in women’s sports. That usually does not do the trick for proportionality and brings about the disparity against men in the financial assistance component. You have to add sports that can bring in walk-ons (high numbers-rowing, equestrian) also, which we know is hard to do on the women’s side because women do not walk on as much as men do.”
Meanwhile, Janet Judge of Sports Law Associates sees ‘a misperception in college athletics that if a school allocates the maximum number of NCAA scholarship opportunities for the sports sponsored, that is a defense to any allegation of scholarship inequity under Title IX.
“That’s simply not true. It is the obligation of each institution to ensure that its student-athletes are provided equitable scholarship opportunities. To that end, it is up to the school to figure out how to provide equity within the confines of existing NCAA scholarship limits. The Title IX standard is exacting. The law requires schools to provide men and women with athletics based scholarship dollars in a percentage equal to the unduplicated percentage of men and women participating in sports (i.e., each athlete counts one time only). Any disparity in excess of one percent is deemed suspect. There are a limited number of affirmative defenses, including adjustments made for in-state and out-of-state tuition rates provided there are no discriminatory limits placed on recruitment using this criteria. Those institutions that have the ability to provide the full measure of athletic aid permissible under NCAA must ensure that the end result is not discriminatory. Accordingly, some institutions have changed their sport offerings to offer sports that provided increased scholarship opportunities for the underfunded sex and others have chosen to limit scholarship opportunities for the overfunded sex.
Something doesn’t square right with the Colorado State situation, added Staurowsky.
“One of the interesting aspects of cases where allegations of lack of fair treatment under Title IX result in a decision to cut women’s sports and add another women’s team presents a complicated picture. On one hand, as I understand it, Colorado State officials indicate that the women’s water polo program was one of only a few in the country and that this move will provide an opportunity to increase the level of competition for female athletes there. At the same time, this might be viewed as a delay tactic. Colorado State had many years to comply with Title IX but appears not to have done so. Should schools be allowed to wipe the slate clean and restart the clock replacing an existing women’s program with a new women’s program when they have been found not to have been in compliance? It begs the question what changed in the scenario that will guarantee compliance into the future. The answer probably is that the school is now obligated to report to the U.S. Department of Education. And while that may benefit the new women’s sports, it does nothing to alleviate the lack of fair treatment that precipitated the need for the lawsuit to begin with. There is a lingering question as to whether this new women’s sport will be treated with the same kind of commitment to equity that the women’s water polo team was.
“This agreement between CSU and the U.S. Department of Education Office of Civil Rights is also not occurring in a vacuum. CSU is currently a member of the Mountain West Conference. For the past few years, it has been looking at the issue of how to move up to play in a more competitive conference, the driving consideration being football. Within the context of them considering spending $226 million on a stadium expansion when the gap in scholarship assistance for female athletes could have been closed with something like six full athletic scholarships raises further questions.”
