East Carolina University (ECU) has agreed to reinstate its women’s swimming, diving, and tennis teams, develop a gender equity plan, which would bring it into full compliance with Title IX and avoid a threatened class action sex discrimination lawsuit.
On May 21, 2020, ECU announced that it was eliminating its women’s (and men’s) varsity swimming & diving and tennis teams.
On November 16, 2020, attorneys representing members of the affected women’s team wrote to ECU’s Interim Chancellor, Dr. Ron Mitchelson, to inform him that the teams’ elimination violated Title IX.
The letter, written by Arthur Bryant of Bailey Glasser, noted that ECU violated the law, which prohibits universities from eliminating women’s teams for which interest, ability, and competition are available unless “intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.”
Specifically, it charged that ECU failed that test, noting that its undergraduate enrollment is 56.57% women, but the school offers females only 50.43% of the opportunities to participate in intercollegiate athletics. And, after the teams’ elimination, it would still offer women only 50.49%. ECU would need at add 70 women to its athletics program to reach gender equality – more than twice the number on the women’s swimming, diving, and tennis teams.
Bryant wrote that he and his co-counsel would file a class action lawsuit in federal court against ECU for depriving women athletes and potential athletes of equal opportunities, athletic financial aid, and treatment unless the school agreed to reinstate the teams and comply with Title IX.
The settlement agreement, reached on January 7, 2021, avoids the need for the class action.
Under the settlement agreement, ECU will immediately reinstate its women’s swimming, diving, and tennis teams and develop a gender equity plan no later than December 31, 2021. The school will solicit input for the plan from student-athletes for all teams and expressly invite participation by the female swimming, diving, and tennis team members. It will post the plan on ECU’s athletics department’s website and ensure that ECU’s intercollegiate athletic program complies with Title IX during the 2023-24 academic year and beyond. The university will continue to monitor and manage the plan on an on-going basis (including prior to its official adoption) to maintain and improve ECU’s Title IX compliance.
In the wake of the news, ECU Director of Athletics Jon Gilbert issued the following statement:
“We are looking forward to having women’s swimming and diving along with women’s tennis return as a part of our sport offerings,” Gilbert said. “When we went through the process of eliminating four programs in May, we understood we needed to reconstitute the athletic department in terms of sports programs and to do so while facing significant budget restraints due to COVID and its uncertainties.
“We worked directly with a Title IX consultant on how best to address our compliance with Title IX while also addressing our financial issues. Title IX is an ongoing commitment and it’s a priority for our university and athletics department.”
Interim Chancellor Ron Mitchelson added: “ECU is fully committed to providing meaningful opportunities to female athletes. And I am confident that the return of these two sports will help us accomplish that goal. The COVID-19 pandemic has caused unprecedented financial disruption to operations across the university and exacerbated the already significant financial challenges faced not only by our athletics department, but also the university. Gender equity is a priority to our institution, and we will continue to take all the necessary steps to be compliant with Title IX.”
In addition to Bryant, the legal team for the female student-athletes included Bailey Glasser’s Cary Joshi, Britney Littles, and Elliott McGraw (DC), Sharon Iskra and Laura Babiak (Charleston, WV), Ben Hogan (Morgantown, WV), and Nicole Ballante (St. Petersburg, FL); Lori Bullock of Newkirk Zwagerman in Des Moines, IA; and Daniel K. Bryson, Jeremy Williams, and Sarah Spangenburg of Whitfield Bryson LLP in Raleigh, NC.
