In an upcoming decision that will have a resounding impact on how colleges and universities comply with Title IX of the Education Amendments of 1972 (“Title IX”), a district judge will evaluate the validity of competitive cheer as a varsity sport capable of counting toward Title IX requirements. This determination will come as part of a ruling on alleged Title IX violations committed by Quinnipiac University (“Quinnipiac”).
If competitive cheer can be used to satisfy Title IX requirements, schools may find that promoting already existing cheerleading squads to the varsity level is a potentially low-cost avenue to comply with Title IX.
The Biediger et al. v. Quinnipiac Univ. trial concluded in a U.S. District Court for the District of Connecticut on June 25, 2010. A decision is not expected to be reached for some time.
Factual Background
Five volleyball players and their coach filed a class action lawsuit against Quinnipiac alleging discrimination on the basis of sex after Quinnipiac decided to cut the volleyball program in March 2009. Quinnipiac decided to discontinue volleyball, along with men’s golf and men’s outdoor track, due to budget issues. However, in order to comply with Title IX, Quinnipiac then promoted its Competitive Cheer team to the varsity level.
Without Competitive Cheer as a varsity team, Quinnipiac would fail to meet the proportionality requirement of Title IX. Because Quinnipiac has not complied with either the second or third prong of Title IX, maintaining proportionality is critical to the school’s compliance with the requirements of Title IX. Neither the National Collegiate Athletic Association (“NCAA”) nor the Department of Education Office for Civil Rights (“OCR”) currently recognizes competitive cheer as a sport.
Quinnipiac relied on the “Dear Colleague” letter issued by the OCR in September 2008 in arguing that competitive cheer is a sport. The letter states the OCR’s commitment to evaluating activities on a case-by-case basis instead of using one standard definition of what constitutes a “sport.” Included in the letter is a set of criteria that the OCR may use to help determine whether an activity is a sport. Of note among the listed criteria is a guideline that “the primary purpose of the activity is to provide athletic competition at the intercollegiate or interscholastic varsity levels rather than to support or promote other athletic activities.” See Letter from Stephanie Monroe, Assistant Secretary for Civil Rights, Office for Civil Rights, “Dear Colleague,” Sept. 17, 2008. Quinnipiac’s Competitive Cheer team does not engage in any traditional “sideline” cheering and the school maintains a separate cheerleading squad to participate in sideline cheer. The OCR’s criteria also takes into account whether an activity is run in a similar fashion to other varsity programs at a school. Quinnipiac has argued that its Competitive Cheer team functions in a manner similar to its other varsity teams.
One factor hindering the recognition of competitive cheer as a sport is the lack of an official governing body at any level, especially the collegiate level. Several cheerleading organizations run tournaments and championships, but these groups utilize different sets of rules and regulations regarding roster size, scoring, and safety regulations.
In an effort to bring conformity to collegiate competitive cheer, Quinnipiac joined seven other schools in 2009 to form the National Competitive Stunts and Tumbling Association (“NSCTA”). The University of Maryland fields one of the NSCTA’s largest teams, listing 35 student-athletes on its roster for the 2009-10 season. Maryland won the National Cheerleaders Association’s national championship in April 2010. The NSCTA is currently trying to navigate competitive cheer through the process of becoming a recognized NCAA varsity sport. The NSCTA created a consistent format for competitions and mandated that member schools participate in at least six competitions per season.
Though competitive cheer has not yet reached the NCAA’s emerging sport status, Quinnipiac would not need NCAA recognition to use competitive cheer for the purposes of Title IX.
Preliminary decisions
The June trial comes after a May 2009 ruling in which the court granted a preliminary injunction temporarily preventing Quinnipiac from cutting the volleyball program. This injunction allowed the team to compete in the 2009-10 season.
The court granted the preliminary injunction not based on Quinnipiac’s determination that competitive cheer is a varsity sport, but rather, due to the court’s determination that Quinnipiac’s roster management techniques were questionable. Specifically, the court took issue with Quinnipiac’s practice of imposing “roster floors.” Roster floors require coaches to take a minimum number of players for their teams and at Quinnipiac, these floors for the women’s teams were often higher than the number of athletes found on most other NCAA teams in the same sport. While other methods of roster management, including capping roster sizes, were deemed acceptable by the court, the court determined “Quinnipiac’s practice of setting floors for women’s rosters under its roster management policy does not produce sufficient genuine participation opportunities for women.” Biediger et al. v. Quinnipiac Univ., No. 3:09cv621 (D. Conn. filed May 22, 2009). Additionally, Quinnipiac’s practice of adding and deleting athletes from rosters prompted the judge to admit he had “no confidence that the EADA numbers Quinnipiac is relying upon to prove substantial proportionality are accurate indicators of genuine athletic participation opportunities.” Id.
The fact that the court’s concerns at this stage of the proceedings were focused primarily on roster management, and not competitive cheer, suggest a favorable outcome for competitive cheer’s campaign to be included as a varsity sport. In fact, the court indicated agreement that competitive cheer could count as a sport for Title IX purposes. The court acknowledged that, “[c]ompetitive cheer, although not presently an NCAA-recognized sport or emerging sport, has all the necessary characteristics of a potentially valid competitive ‘sport.’” Id. The court further acknowledged that the plaintiffs did not “appear likely to prevail in their arguments that….competitive cheer is not a ‘sport’ for purposes of Title IX.” Id.
It is also important to note that in May 2010, the suit was certified as a class action covering “all present, prospective, and future female students at Quinnipiac University who are harmed by and want to end Quinnipiac University’s sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes.” Biediger et al. v. Quinnipiac Univ., No. 3:09cv621 (D. Conn. filed May 20, 2010).
Implications of the court’s decision
Although a ruling will not be binding on the NCAA, a judicial definition of competitive cheer as a sport could have an impact in athletic departments across the country. Not only might there be an increase in the number of competitive cheer teams promoted to the varsity level in order to comply with prong one of Title IX, but it could expedite the process of approving competitive cheer as a varsity sport. The NCAA requires 20 or more competitive and/or club teams before it will grant emerging status to a sport. If the court determines competitive cheer is a sport, it may not be too long before that minimum number of teams is reached.
Alyson J. Guyan, Esquire, is a member of the Jackson Lewis Sports Compliance Group in the Washington D.C. Region Office.
Michael B.Ackerstein is a Research Analyst in the Jackson Lewis Sports Compliance Group in the Washington D.C. Region Office.
