By Ellen J. Staurowsky, Ed.D., senior contributor, Professor, Sports Media, Roy H. Park School of Communications, Ithaca College, staurows@ithaca.edu
Following a decision by the Big Ten Conference to postpone fall sport competition due to the COVID-19 pandemic, University of Iowa (UI) president Bruce Harreld and athletic director Gary Barta reported in an open letter to the university and athletic communities on August 21, 2020 that they anticipated a $60-$75 million budget shortfall in athletics for the 2020-2021 fiscal year that would take years to address. Against the backdrop of that shortfall, they announced a plan to eliminate four varsity sports teams, including men’s gymnastics, men’s tennis, and men’s and women’s swimming (Harreld & Barta, 2020). Four weeks later, four members of the UI women’s swimming and diving team — Sage Ohlensehlen, Christina Kaufman, Alexa Puccini, and Kelsey Drake – filed a complaint against UI alleging intentional and prohibited sex discrimination under Title IX of the Education Amendments of 1972.
An Overview of the Issues
According to President Harreld and Athletic Director Barta (2020), the decision to cut varsity sports at UI was a difficult one, made after considering a number of factors including “…sponsorship at the NCAA Division I level, impact on gender equity and Title IX compliance, expense savings, history of the sport at Iowa, engagement level, and other factors” (para. 6). This class action lawsuit filed on behalf of the named plaintiffs as well as similarly situated current and future female athletes at the University of Iowa challenges how seriously gender equity and Title IX compliance were taken into account when the plan to cut teams was developed.
Ohlensehlen and her sister plaintiffs argue that UI failed to provide equal treatment to female athletes in athletic participation opportunities, allocation of athletic scholarship funding, and in other operational areas that support athletic teams, such as facilities, equipment, and coach compensation. In support of their claim that female athletes did not have equitable access to athletic participation opportunities, the complaint examines the University of Iowa’s record relative to Title IX’s three-part test.
The three-part test offers a flexible way for schools to comply, first considering whether athletic participation opportunities are offered to male and female athletes in a manner proportional to the percent of males and females in the undergraduate student population. Should athletic opportunities not be offered proportional to gender representation in enrollment, schools may demonstrate compliance by showing that they have a history and continuing practice of program expansion, meaning that they have a demonstrated record of adding athletic opportunities for the underrepresented sex. And in the event that a school is unable to pass the first two parts of the test, they might still be in compliance if they can demonstrate that they are providing athletic opportunities that effectively accommodate the interests and abilities of the underrepresented sex.
Based on publicly available information, the University of Iowa appears to have violated all three parts of Title IX’s test to assess equitable opportunity in athletic participation. Information reported by the University of Iowa for the 2018-2019 academic year in accordance with the Equity in Athletics Disclosure Act of 1994, which requires colleges and universities receiving federal financial assistance to disclose how resources are allocated to men’s and women’s teams within athletic departments, shows athletic opportunities for female athletes at UI are not proportional to their enrollment, with a gap favoring male athletes by approximately three percent. Given that UI had not added a women’s team since 2003, there is little evidence to support a determination that they have had a history and continuing practice of program expansion. And viable sport clubs, including women’s ice hockey, lacrosse, and rugby were competing during the 2018-2019 academic year, establishing that there were women athletes whose interests and abilities were not being accommodated through the Hawkeye varsity athletic program.
In terms of compliance in the area of athletic scholarships, the UI offered proportionally more funding to male athletes than to female athletes by 1.45 percent, signaling a potential problem given that Title IX regulations require that schools stay within a one percent gap. In the area of other benefits, women’s teams received 32% of recruiting dollars; 22% of total dollars spent on head coach salaries; and 23% of dollars spent on assistant coach salaries.
A Shift in Climate Toward Less Favorable Treatment of Women After the Hiring of AD Barta
Referencing historical eras within the athletic department to create context for the alleged inequities that have accrued since the hiring of athletic director Gary Barta in 2006, the plaintiffs note that in an earlier era when the men’s and women’s athletic departments were separate and had their own athletic directors, the University of Iowa had an established national reputation for strong leadership on behalf of women athletes. With the retirement of famed women’s athletic director, Christine Grant, a movement by the university to consolidate the organizational structure of athletics led to a merger of the men’s and women’s departments in 2000. Concern was expressed at the time that such a move might make the women’s program vulnerable to less favorable treatment.
Barta’s hiring coincided with a new Big Ten television deal which infused tens of millions of dollars into the athletic budget at the University of Iowa along with additional revenue generated from game broadcasting rights and substantial contributions to the UI Foundation. The Hawkeye athletic budget was expected to reach $127.5 million in fiscal year 2020-2021, an increase of two and a half times what it had been when Barta was hired fourteen years previous.
The plaintiffs allege that under Barta, a practice of manipulating information to give the appearance of Title IX compliance replaced genuine efforts to comply with the law. They point out that at the urging of Barta large numbers of women were added to team rosters in a calculated effort to avoid adding women’s teams. As characterized in the complaint, those athletic opportunities were nothing more than a definitional slight of hand, where “benchwarmers” were being counted as “true participants”. Coupled with the practice of double and triple counting female athletes while only counting male athletes once in the sports of cross country and track and field, UI is accused of artificially inflating numbers on the women’s side and suppressing numbers on the men’s side to present a more favorable picture of Title IX compliance. At core, the Title IX issue raised is one of not only equal access to athletic participation opportunities but the legitimacy of those opportunities.
The question raised in the dynamic of decision making at UI is whether there was an effort to unfairly treat female athletes and remove women in the athletic department who would have advocated for them? As noted in the complaint, two long-standing female employees within the athletic department, senior ranking administrator Jane Meyer and highly successful field hockey coach Tracey Griesbaum, sued UI on grounds of wrongful termination and sex discrimination. In Meyer’s amended complaint in 2016, she specifically alleged that it was after Barta’s hiring in 2006 that there was a noticeable change in the direction of how women’s sports, female athletes, and women were treated in the department. After Meyer won her case in a jury trial, the University reached a $6.5 million settlement with Meyer and Griesbaum.
Coincident to the challenges raised by Meyer and Griesbaum, UI female athletes initiated a complaint with the U.S. Department of Education Office for Civil Rights resulting in an investigation of the athletic department and its compliance record. The OCR found that UI was not able to provide conclusive evidence to show that the program was in compliance with the three-part test, athletic scholarship requirements, and in the provision of other benefits including tutoring, facilities, equipment and supplies, locker rooms, and recruiting resources. In response, UI requested additional time to assess the issues and to resolve the matter internally. In a Resolution Agreement signed in 2017, UI agreed to work with the OCR to proactively address Title IX compliance issues in their athletic department.
In June of 2020, “…the widening disparities between Iowa’s Title IX obligations and its offering of sports opportunities to its female students” were brought to the attention of both President Harreld and Athletic Director Barta by two outside groups. In letters from Nancy Hogshead-Makar, founder of advocacy group Champion Women, and the California Women’s Law Center addressed to Big Ten Commissioner Kevin Warren and copied to Harreld and Barta, they were warned that others had noticed that female athletes were not being afforded equal athletics opportunities at the University of Iowa. Those letters were sent two months before UI’s decision to cut women’s swimming and diving was announced.
Relief
Harmed by the lack of equal treatment as well as the disruption in the lives of UI female swimmers and divers who face uncertain futures and with decisions to potentially transfer if their sport is no longer offered, the plaintiffs seek declaratory and injunctive relief for themselves and the class. They also seek a finding that UI has had a continuing pattern and practice of sex discrimination against women in the athletic department. Pertinent to the sport of women’s swimming and diving, they seek a temporary restraining order and preliminary injunction to protect the program along with staffing and funding. Ultimately, they seek a final junction to protect women’s sport programs at UI and to ensure that those programs are run in accordance with Title IX’s mandate of equal treatment.
References
Harreld, B., & Barta, G. (2020, August 21). Open letter to the University of Iowa and Hawkeye athletics community. Press release. Iowa City, IA: University of Iowa. Retrieved from https://hawkeyesports.com/news/2020/08/21/open-letter-to-the-university-of-iowa-and-hawkeye-athletics-community/
Ohlensehlen, Kaufman, Puccini, and Drake v. the University of Iowa. United States District Court for the Southern District of the State of Iowa. 3:20-cv-00080(2020). Retrieved from https://www.swimmingworldmagazine.com/results/pdf/iowa-swimming-and-diving-complaint-ncaa-college-2020-09-25.pdf
Lutz, J. (2019). Equity in Athletics Disclosure Act report: University of Iowa — 2018-2019. OPE Equity in Athletics Disclosure Website database. Retrieved from https://ope.ed.gov/athletics/#/
