By Professor Paul Anderson, Director, Sports Law Program and National Sports Law Institute, Marquette University Law School
On July 8, 2020, Stanford University announced that it would discontinue 11 varsity sports programs at the end of the 2020-2021 academic year: men’s and women’s fencing, field hockey, lightweight rowing, men’s rowing, co-ed and women’s sailing, squash, synchronized swimming, men’s volleyball, and wrestling. Although the university stated that the decision to make these cuts took years to develop, it admitted that the harsh realities faced by the university because of the Covid 19 pandemic pushed it to come to this decision. While many of these sports could be considered Olympic and non-revenue producing sports, they make up about one third of the school’s entire athletic program, accounting for 240 athletes and programs that have produced 20 national titles and 27 Olympic medals.
These cuts were part of the more than 250 teams that have been cut from athletic programs throughout the United States since the fall of 2019. Although the most cuts took place at the NCAA Division 1 level, teams were cut at community and junior colleges, NAIA schools, and all levels of the NCAA. Although Olympic sports lead the way in the types of teams cut the most, with Tennis, Golf and Cross Country most common, 28 different sports saw teams get cut, including a few football teams.
These cuts come at a time when American universities are facing an expected more than 120 billion dollars in negative fiscal impact from the Covid 19 pandemic causing cuts in many academic and administrative areas. It is not surprising then that some of these cuts have also happened within athletics.
When cuts happen in athletics, in particular when women’s teams are cut, the issue of whether cutting teams is contrary to Title IX (the Patsy Takemoto Mink Equal Opportunity in Education Act, 20 U.S.C. 1681, et. seq.) comes to the forefront. When female athletes’ teams are cut there is often an uproar, as there was in response to Stanford’s decision to cut. The same uproar is rarely found when men’s teams are cut. Looking into whether these assumptions have changed will be important as universities continue to face the impact of the Covid 19 pandemic.
Title IX and cutting teams
Most universities did not begin to cut teams to meet the requirements of Title IX until the early 1990s. However, the framework that led to cutting opportunities comes from the now Department of Education in 1979, with the policy interpretation–A Policy Interpretation: Title IX and Intercollegiate Athletics. The interpretation laid out a 3-prong test that schools must meet to ensure that they are effectively accommodating the interests and abilities of each sex.
Courts reviewing Title IX claims, and typically deferring to guidance from the Department’s Office for Civil Rights (OCR), have consistently found that the second and third prongs of this test only apply to the “underrepresented sex.” Men remain the overrepresented sex at all levels of sport, so these two prongs only apply to women.
The second prong focuses on whether schools have a “history and continuing practice of program expansion” for women. Cutting women’s teams is anathema to this expansion, and one must wonder whether any school could truthfully argue that it meets this prong 49 years after the passage of Title IX without a long history of expansion for women.
The third prong focuses on whether “the interests and abilities” of women “have been fully and effectively accommodated.” Cutting women’s teams again is evidence of the opposite by taking opportunities away from student athletes who showed that they had the requisite “interest” and “ability” as they were already full participants in the now cut sport.
Because of this the focus of claims brought by athletes whose opportunities have been cut is rightfully on the first prong of the three-part test. This prong applies to both men and women and analyzes whether athletic opportunities are provided for both “in numbers substantially proportionate to their respective enrollments.” Under this prong, schools should compare the percentages of men and women in their student body, with the percentage of male and female athletic opportunities they offer. In other words, if a school enrolls 60% women, then they must provide close to 60% of their athletic opportunities to women. Although the percentages do not have to be equal, most courts will find that a school is providing substantially proportionate opportunities if there is less than a 3% gap between the percentages of enrolled students and participating athletes of one sex.
For example, on August 21, 2020, the University of Iowa announced that it was eliminating the men’s and women’s swimming and diving, men’s gymnastics, and men’s tennis teams. After these cuts there would be a 7.9% gap between the percentage of women enrolled at the university and the percentage of female athletes in the athletic department. This gap is too large and violates the first prong of the test.
Courts first began reviewing claims by athletes from teams that were cut in the 1990s when women from Indiana University of Pennsylvania, Colorado State, and Brown sued when their teams were cut. Although the courts all sustained the women’s claims forcing each university to reinstate the women’s teams, they also began to acknowledge that “in times of economic hardship, few schools will be able to satisfy Title IX’s effective accommodation requirement by continuing to expand women’s athletic programs.” (Roberts v. Colorado Board of Agriculture, 998 F.2d 824, 830 (10th Cir. 1993). Even with this recognition of the economic reality universities can be faced with courts have rarely allowed schools to cut women’s teams.
In addition, a case involving Brown University the 1st Circuit Court of Appeals found that the first prong of the test could be used as a “safe harbor” (Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993)). In other words, if schools could show that they provided substantially proportionate opportunities under prong one, they were safe from further Title IX challenges related to the opportunities provided to their student athletes.
Many schools interpreted this “safe harbor” as the only way to meet Title IX requirements related to participation opportunities and made meeting these requirements a pure numbers game. This led to many men’s teams being cut in the 1990s and 2000s, as universities could safely cut men to meet Title IX requirements because the percentage gap between male and female participants would become closer to being substantially proportionate after the men’s teams were cut.
Consider this hypothetical example. School A has 54% women enrolled and 48% women in their athletic program. The men are then at 46% enrolled, but 52% of the participants in athletics. The gap of 6% in the women’s participation percentages would not meet the substantial proportionality prong. However, if the university decided that it could not afford to increase opportunities for women, and instead cut men’s teams and therefore opportunities in an amount significant enough to reduce the men’s athletic participation percentage to 48%, the women’s athletic participation percentage would rise to 52% and thus now be within 2% of their enrollment percentage of 54%. This 2% gap would now be considered by most courts and OCR to demonstrate substantially proportionate opportunities.
Men have not been successful suing to reinstate their teams. One of the earliest cases reviewing claims brought by men from cut teams at the University of Illinois set this standard. The 7th Circuit Court of Appeals found that the university “could eliminate the men’s {teams} without violating Title IX, since even after. . .men’s participation in athletics would continue to be more than substantially proportionate. . .” (Kelley v. Board of Regents, 35 F.3d 265, 270 (7th Cir. 1994).
Can Women’s Opportunities Be Cut?
After these early 1990s cases, schools continued to cut men’s opportunities to meet the requirements of Title IX. Courts, and several guidance documents from OCR, reiterated that while this practice was not preferred, it was not necessarily illegal, and so it was still a legitimate way to meet Title IX requirements. Adding to this focus on cutting men’s opportunities, most schools assumed they could not cut women’s opportunities, no matter the budgetary or financial concerns alleged.
In 2008, a court in Ohio hinted that schools might have some leeway in cutting women’s opportunities. The court found that the University of Cincinnati was able to cut its women’s rowing team because the university replaced the rowing team with a lacrosse team and would still meet prong 1 after this cut and substitution (Miller v. University of Cincinnati, 2008 U.S. Dist. Lexis 4339 (S.D. Ohio 2008)). As the court noted “[t]he University has been in compliance with the equal accommodation prong of Title IX and the termination of the rowing team does not place it out of compliance . . . the opportunities for participation by women athletes. . .are more than proportional to the percentage of women in the undergraduate study body and have been consistently in each year after 2000” (p. *20).
If a university provides more opportunities than needed for women to remain substantially proportionate and would still be providing more than substantially proportionate opportunities after cutting certain women’s opportunities, then it makes sense that some women’s opportunities could be cut. Still, this mere act of cutting seems to go against what most believe is the purpose for Title IX, to benefit the underrepresented sex.
Reiterating the ability of a university to substitute opportunities and thereby cut some for women, in 2019, a court decided that Eastern Michigan University could change its mind and not reinstate its women’s softball team, even after an initial court ordered it to do so, because the court found that the harm to the university outweighed the harm to the women who lost their opportunities. The court noted that “Title IX requires equality between men’s and women’s teams, not that certain teams (say women’s softball) be reinstated rather than other sports be created . . .” (Mayerova v. EMU, 2019 U.S. App. LEXIS 9373, at *2-3 (6th Cir. 2019). Again
And adding more to this rethinking related to cutting opportunities for women, another court in 2019 dismissed a claim brought by a cut women’s hockey team against the University of North Dakota because cutting this team “on its own, did not establish whether university provided substantially proportionate athletic opportunities for female and male students.” (Berndsen v. N.D. University System, 2019 U.S. Dist. LEXIS 102292 (D. ND 2019)). And of course, cutting alone does not do that, instead cutting would only violate prong one if that cutting leads to a gap in percentages showing that women’s opportunities were not substantially proportionate to their enrollment at the school.
These three cases question whether the normal assumption that women’s teams cannot be cut under Title IX, or that schools who cut women’s teams are automatically in violation of Title IX, is still valid. These courts allow attempts to comply with prong one, the “safe harbor,” even more of a numbers game. They allow for the possibility that a school could still comply with the law while also cutting opportunities for women. Coupling this with the earlier courts’ recognition that schools facing financial hardships will be hard pressed to meet Title IX’s requirements by adding opportunities for women (let alone men), perhaps the assumptions that schools cannot cut women’s opportunities because of fiscal burdens needs to be revisited during the pandemic.
Cutting Teams and Covid 19
Cutting teams again began to ramp up in late 2019 and since that time schools have cut over 250 teams. 84% of the time the reasons given for these cuts focus on financial hardships, now related to the impact of the pandemic on universities and athletic departments.
As noted earlier. in 2020 Stanford University cut 11 teams, Dartmouth initially cut 5 teams including 2 women’s teams, the University of Minnesota cut 3 men’s teams, and Brown University again cut 11 teams including 5 women’s teams. Each school noted financial and budgetary concerns that were exacerbated during the pandemic and led to the need to cut the teams. Reflecting the normal assumption that cutting women’s teams violates Title IX, Dartmouth reinstated the women’s teams under threat of a lawsuit, and Brown, which was under a settlement from the 1993 litigation already, modified the settlement and restored the women’s teams.
As mentioned earlier, the University of Iowa cut 4 teams, including women’s swimming and diving. The women sued, and although the court rejected the universities financial hardship arguments and stopped the university from cutting the team, it also left open the possibility that the university could still have complied with prong one if it provided substantially proportionate opportunities “after eliminating the women’s swimming and diving team. . .” (Ohlensehlen v. University of Iowa, 2020 WL 7651974 (S.D. Iowa 2020). This decision is in line with the cases involving Cincinnati, Eastern Michigan, and North Dakota, as this court at least admitted that it might be possible to still meet Title IX requirements even after cutting the women’s team, although in this situation that was not the case.
Most legal experts would still assume that universities can cut male opportunities to meet Title IX requirements (since late 2019 54% of the cuts have been men’s teams), and few ever focus on the harm to these male student athletes. However, most experts would still assume that a school cannot cut women’s teams and still comply with Title IX. And this is a reasonable assumption to make.
Since courts first began to review claims brought by student athletes whose opportunities have been cut, while they recognized that universities may face financial hardships that impair their ability to sustain their athletic program and meet Title IX requirements at the same time, they still tend to focus on the percentages alone. And since most universities involved in lawsuits brought by female athletes from cut sports were and still are out of proportion already, the university involved was rightfully barred from cutting the women’s teams. In fact, cutting the women’s teams would almost always make the gap worse.
Few cases have mirrored what happened at Cincinnati, where the numbers were proportionate even after the teams were cut. But even the Iowa court made clear that the university could theoretically still meet prong one’s requirements even after cutting the women (as it did also cut 3 men’s teams), and perhaps as universities continue to try to weather the financial crisis imposed on them because of this unprecedented pandemic, schools should be granted this small bit of flexibility.
We have not seen the last college athletic teams cut because of the unprecedented financial hardships that universities are facing during the Covid 19 pandemic. Those who think that somehow athletics should be spared from this hardship do not understand that athletic departments are at best a small department within a larger university, a department that does not operate on its own. Hopefully as we come out of the pandemic the rash of cutting will lesson so that schools can continue to support student athletes fully and effectively as they should.
