By Ellen J. Staurowsky, Ed.D., Senior Contributor and Professor, Sports Media, Roy H. Park School of Communications, Ithaca College, staurows@ithaca.edu
In October of 2020, Fresno State administrators announced plans to cut three sports – men’s tennis, men’s wrestling, and women’s lacrosse – before the start of the next academic year. Financial shortfalls caused by the impact of the COVID pandemic were cited as the reason for the elimination of those three sports. In a statement about the cuts, Fresno State director of athletics Terry Turney noted that the athletic department would reduce departmental expenses by $2.5 million once the plan was fully executed and would allow Fresno State to offer an athletic program that was more closely aligned with that of their competitive peers and schools in the Mountain West Conference (University Communications, 2020).
Fresno State president Joseph Castor was contacted in December of 2020 by an attorney with Bailey Glasser, Arthur Byrant, warning that the planned cuts to the women’s lacrosse program violated Title IX of the Education Amendments of 1972 and urging that the team be reinstated. According to Bryant’s declaration in the case file, an attorney for the university, Daryl Hamm, defended the institution’s actions, noting that Fresno State “would welcome an opportunity to prove its Title IX compliance in court” (Bryant Declaration, 2021, p. 3). On February 12, 2021, five women lacrosse players filed a class action lawsuit on behalf of themselves and other female athletes similarly situated, alleging that Fresno State had subjected them to sex discrimination and denied them benefits made available to male athletes.*
The lawsuit alleges that Fresno State failed to provide female athletes with equal access to athletic participation opportunities, favored male athletes in the allocation of athletic scholarships, and provided more and better resources to men’s teams. They further argue that female athletes will continue to experience discrimination in the aftermath of those cuts.
An effort to obtain a preliminary injunction to prevent Fresno State from moving forward with its plan to cut the team was denied by Judge Anthony Ishii of the U.S. District Court, Eastern District of California, in April of 2021. The court was unpersuaded by the plaintiff’s analysis that Fresno State’s plan to meet Title IX requirements in terms of offering athletic participation opportunities proportional to enrollment would fall short of the standard, describing the analysis as speculative and flawed. However, citing “uncontroverted evidence that inequalities in the treatment of women’s lacrosse in comparison to men’s teams at Fresno State are substantial enough to deprive members of the women’s lacrosse team equal athletic opportunity”, Judge Ishii did order Fresno State to treat the women’s lacrosse team equally during the remainder of their final season in the spring of 2021 (Anders v. California State University, Fresno et al., 2021, p. 34). Plaintiffs were also extended the opportunity to file an amended complaint.
Fresno State’s History of Violating Title IX in Athletics
Declarations from the women lacrosse players in this case paint a narrative of what being treated like a second-class citizen in an athletic department looks like. Lack of access to locker rooms, inadequate coaching, academic support that treated female athletes as “afterthoughts”, provision of more and better gear to male athletes, fewer resources devoted to recruiting female athletes, and three meals a day provided for football and men’s basketball along with meals delivered after practice compared to no such accommodation for female athletes were among the undisputed claims reported by the plaintiffs. And claims the judge ordered to be remedied (Anders v. California State University, Fresno, 2021, Motion for Preliminary Injunction).
Those programmatic inequities occurred within the context of an athletic department that has been a repeat offender in terms of non-compliance with Title IX. The result of an investigation by the U.S. Department of Education Office for Civil Rights (OCR) in 1994 revealed that Fresno State failed to treat female athletes fairly and equitably in eleven of thirteen areas covered by Title IX. Under a Corrective Action Plan entered into with the OCR, Fresno State was obligated to provide annual reports documenting their actions to address areas of Title IX non-compliance. OCR closed that file in 2001, nearly a decade after the original report in 1992 (Anders v. California State University, Fresno, Second Amended Complaint, 2021).
A year later, in November of 2002, then associate athletic director Diane Milutinovich alleged sex discrimination and retaliation against Fresno State with the OCR. That complaint would be followed by three others in April of 2004. Once again, OCR found Fresno State had violated Title IX in its treatment of female athletes in eleven of thirteen areas. This time around, the Voluntary Resolution Agreement Fresno State entered into required the institution to conduct a Title IX audit and develop a plan to address areas of non-compliance. Through that process, 45 steps had to be taken to remedy inequities in the athletic department that adversely affected female athletes. When the file was closed on those complaints in 2016, the OCR explained that they were closing the book on what had been agreed upon in 2009 and not on the state of Title IX compliance in Fresno’s athletic department in 2016 (Anders v. California State University, Fresno, Second Amended Complaint, 2021).
Between 2004 and 2009, five women who worked in the Fresno State athletic department, including Milutinovich, Lindy Vivas (women’s volleyball head coach), Stacy Johnson-Klein (head women’s basketball coach), Margie Wright (head women’s softball coach), and Ramona Pagel (track coach) were awarded over $15 million as a result of Title IX claims of discrimination in their programs and retaliation
(Anders v. California State University, Fresno, Second Amended Complaint, 2021).
Plaintiff’s Second Amended Complaint in August of 2021
One of the issues raised in this case is whether Fresno State offered, and will offer, equal access to athletic participation opportunities to female athletes following the cutting of women’s lacrosse. In order to comply with this expectation under Title IX, schools must meet one part of a three-part test that includes:
Upon cutting the women’s lacrosse team, Fresno State was bound to demonstrate that they were offering, and would be offering in the future, athletic opportunities to female athletes proportional to the representation of female students within the general population. The decision to cut women’s lacrosse meant that Fresno State could not demonstrate a history and continuing practice of program expansion. Since it cut an existing and viable women’s team, it also could not demonstrate that they were fully and effectively accommodating the interests and abilities of female athletes on their campus.
While Fresno State has argued that their plan moving forward has taken this into account, the plaintiffs take issue with the manner in which this calculation was done, noting that Fresno State based their calculations on out-of-date data from their Equity in Athletics Data Analysis (EADA) report and questionable projections that men’s rosters would remain constant while women’s rosters would grow. The plaintiffs further point out that female enrollment at Fresno State had increased in 2020-2021 and was not expected to decline, thus raising a question as to whether the proportionality assessment done by Fresno State accurately addressed the number of athletic opportunities they should be providing for female athletes.
The plaintiffs also alleged that Fresno State has failed to provide athletic scholarships in accordance with Title IX expectations that call for female athletes to receive athletic scholarship assistance proportional to the number of female athletes competing in the athletic program. In the aggregate, the plaintiffs argue that the accumulated effect of repeated failures over time to proportionally provide athletic scholarships to female athletes at Fresno State from 2003-2004 through 2018-2019 deprived female athletes of $5.3 million in aid they should have received. In a motion to dismiss the plaintiffs’ claims regarding athletic scholarships, Fresno State argued in a filing dated August 6, 2021 that the named plaintiffs lack standing and fail to state an actionable claim because some of the plaintiffs who received athletic scholarship support could not establish that they suffered concrete injuries-in-fact. In the plaintiffs’ opposition to Fresno State’s motion to dismiss filed on September 13, 2021, they argue that “female student-athletes denied financial-aid equality mandated by Title IX clearly have standing to challenge such discriminatory conduct. All of them suffer psychological harm associated with their participation in an athletics program that actively discriminates against them” (Anders v. California State University Fresno et al, Opposition to Fresno State’s Motion to Dismiss Count II, 2021, p. 5).
Concluding Thoughts
As this case continues to work its way through the courts, Fresno State has established itself as an institution that has actively resisted complying with Title IX’s mandate to treat female athletes equally for nearly three decades. One wonders where women’s athletics at Fresno State would be today if the money spent on litigation had been invested in their programs rather than defending sex discriminatory policies and practices. It also sheds light on how women’s programs that are struggling may be doing so because they are being starved of the resources they need to thrive. In a sex discriminatory system, those programs then become part of a self-fulfilling prophecy, vulnerable to being cut because they have not been as successful as other programs.
*A sixth named plaintiff was added to the case in the seconded amended complaint.
References
Anders et al., v. California State University, Fresno, et al. (2021, September 13). Plaintiffs’ opposition to Fresno State’s motion to dismiss count II of the second amended complaint. United States District Court Eastern District of California Fresno Division. Case No: 1:1-cv-000179
Anders et al., v. California State University, Fresno, et al. (2021, August 26). Defendants’ memorandum of points and authorities in support of their motion to dismiss count II of plaintiffs’ second amended complaint . United States District Court Eastern District of California Fresno Division. Case No: 1:1-cv-000179
Anders et al., v. California State University, Fresno, et al. (2021, August 12). Second amended complaint. United States District Court Eastern District of California Fresno Division. Case No: 1:1-cv-000179
Anders et al., v. California State University, Fresno, et al. (2021, April 21). Order granting in part and denying in part plaintiffs’ motion for preliminary injunction. United States District Court Eastern District of California Fresno Division. CASE: 1:21-cv-179-AWI-BAM
Anders et al., v. California State University, Fresno, et al. (2021, February 12). Motion for preliminary injunction. Declaration of Andrew Bryant (Exhibit B). United States District Court Eastern District of California Fresno Division. CASE: 1:21-cv-179-AWI-BAM.
Anders et al., v. California State University, Fresno, et al. (2021, February 12). Motion for preliminary injunction. United States District Court Eastern District of California Fresno Division. CASE: 1:21-cv-179-AWI-BAM
Kuwada, R. (2020, October 16). As revenue declines, Fresno State drops 3 sports including one it just brought back. Fresnobee.com. Retrieved from https://www.fresnobee.com/sports/college/mountain-west/fresno-state/article246504080.html
University Communications. (2020, October 16). Fresno State athletics announces program changes. Press release. Retrieved from https://gobulldogs.com/news/2020/10/16/general-fresno-state-athletics-announces-program-changes.aspx
