A federal judge in Pennsylvania has ruled that West Chester University violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. when it shuttered its women’s gymnastics program, and ordered the university to immediately reinstate the program.
The decision solidifies the boundaries for colleges that operate under severe budgetary constraints that must also maintain or achieve compliance with Title IX.
In this case, the court took special interest in the fact that the university had formed a committee to look specifically at Title IX compliance and then seemingly disregarded the committee’s conclusions.
Leslie Brueckner, who represented Trial Lawyers for Public Justice in the case, told LICA that she believes one of the messages for athletic directors is that the conclusions of a gender equity committee should be taken very seriously. “West Chester ignored the school’s gender equity committee, which had warned that the school that it was already in violation of Title IX and that cutting gymnastics would make the situation worse,” said Brueckner.
The impetus for the complaint was the university’s decision last spring announcing that it would eliminate both its women’s gymnastics and men’s lacrosse programs. In a press release announcing the decision, WCU also announced that it was adding a women’s golf program, merging the program with the existing men’s golf program.
In a press release announcing the decision, Athletic Director Edward Matejkovic, Ph.D. noted that the university embarked on a 12-month review in the spring of 2001 to determine how best the university could respond to an imminent budget crisis, while satisfying Title IX. He said that the committee assigned the task created a roadmap to allow the university to continue to maintain all its programs. However, the budget crisis worsened, creating a “dire” situation.
In the release, Dr. Matejkovic explained the rationale behind adding a women’s golf program. First, the team would travel with the men’s team and would share the men’s team coaches, dramatically cutting expenses. Second, he suggested that women’s golf was rapidly eclipsing women’s gymnastics in both popularity and opportunity, influencing the university’s decision..
“While there are only seven NCAA Division II women’s gymnastics teams in the country, there are nearly 100 women’s golf teams across the nation,” the AD said
At the time, he also proactively sought to address any concerns about Title IX compliance. “Even though the current budget climate has caused us to make these difficult decisions,” Matejkovic said, “we must still be cognizant of the opportunities for women in our athletics program. By adding a growing sport like women’s golf, we will replace the opportunities for competition formerly held by our gymnastics team.”
Immediately upon hearing the announcement, the plaintiffs — eight members of the former West Chester University Women’s Gymnastics Team — began their attempts to have the gymnastics program reinstated. Among other things, they contacted the Department of Education’s Office for Civil Rights (OCR), filing a complaint with that office on May 3, 2003. A little more than two weeks later, the plaintiffs contacted the Trial Lawyers for Public Justice. By late June, the plaintiffs retained the Washington-based TLPJ, which sent a demand letter to WCU, explaining the plaintiffs’ position that the university had violated Title IX and suggesting that settlement talks would be in order.
On August 26, 2003, TLPJ attorney Brueckner, and Plaintiffs’ local counsel, Sharon McKee, represented the Plaintiffs in a meeting with WCU’s Matejkovic, Vice President for Student Affairs Matthew Brickett and at least two other WCU administrators. The Plaintiffs’ attorneys presented their case and the defendants sought time to consider the situation. After the university’s representatives failed to respond by an agreed upon deadline, the plaintiffs sued, naming the university, Matejkovic; Madeleine Wing Adler, President of WCU; and Barbara Cleghorn, Assistant Director of Athletics for Eligibility and Compliance as defendants. The plaintiffs sought a preliminary injunction, directing the defendants to reinstate the gymnastics program.
Court Looks at Formation of Committee
In its analysis, the court noted that the first notice of a possible problem arose when Deborah Anekstein, an administrative assistant and “pseudo athletic administrator” in the athletic department, drafted a memo to Matejkovic explaining what she described as WCU’s shortcomings in the area of Title IX. Anekstein wrote that she believed that WCU had “failed to meet the first two prongs of the accommodation test and that, at that time, it was impossible to determine whether WCU was fully and effectively meeting the interests of its female students under prong three.”
Three years later, the Athletic Department created the Sports Equity Committee “to obtain a basic and working knowledge of Title IX in order to begin the task of ensuring that the athletics program is in compliance with the law.” On April 6, 2000, the committee wrote that at WCU “(1) student athletic participation is not proportional to the rates of enrollment, and (2) WCU does not have continuing program expansion for women (the underrepresented sex),” mirroring the conclusions of Anekstein.
However, the committee undertook an effort to determine whether WCU was in violation of prong three. Conducting a student survey, the committee determined that WCU was “meeting the ‘interests’ of its students.” Of course, the plaintiffs questioned the reliability of the survey.
The Committee continued to monitor Title IX compliance at the university and in May of 2001, it sent a letter to the AD about certain coaching inequities, stating that:
“WCU continues to fall short regarding compliance. The Sports Equity Committee had been hopeful that the University would take a pro-active stand and address the coaching inequities that place the institution in violation of Title IX. We see the inaction of the University as placing West Chester University in jeopardy of civil litigation and/or investigation by the Office of Civil-Rights … We have presented a plan that will help eliminate the possibility of legal action and have been ignored. This work would be used effectively against us in a legal action. We will not be a part of setting up our institution for greater difficulties regarding a Title IX investigation or litigation.”
As the budget pressure on the university mounted, WCU and its athletic department continued to look for solutions. Women’s gymnastics was clearly vulnerable, owing to the fact that in 1999 it had been relegated to Tier C status with men’s tennis, men’s golf, and men’s lacrosse, meaning it would receive a bare minimum of financial support. When the pressure intensified, the program was cut. WCU clearly hoped that the creation of a women’s golf program would offset some of the negative reaction to its decision.
WCU Misses Equity Mark in Two Areas
The plaintiffs in the instant case made two distinct Title IX claims related to equal treatment and equal accommodation.
In the area of equal treatment, the plaintiffs argued that they have been denied equal treatment in terms of coaching support and recruiting money.
“The Department of Education’s regulations list coaching opportunities and coaches’ compensation as two of the ten factors in determining equal opportunity. 34 C.F.R. § 106.41(c)(5-6),” noted the federal judge. “In the area of coaching, it is apparent that WCU fails to not only provide equal coaching services to its male and female athletes, but WCU also pays the coaches of its women’s teams less than the coaches of its men’s teams. Prior to April 2003, WCU offered one more team for women than for men. Despite that fact, Plaintiffs present evidence that women’s teams receive ‘just 44 percent of the coaches and these coaches earn only about 40 percent of the dollars West Chester University spends on coaching salaries.’ In the area of assistant coaches, the disparity is even greater. Men’s teams benefit from 21 assistant coaches, while women’s teams have only 14. In addition, assistant coaches of men’s teams earn nearly three times that of their counterparts on women’s teams.”
Similarly, the court noted that there “is even greater inequity in the number of dollars spent on recruiting for women’s teams as compared to men’s teams.”
The court concluded that the plaintiffs’ “assertion that WCU has failed to comply with Title IX’s equal treatment requirement in the areas of coaching and recruiting appears to be correct.”
Turning to the equal accommodation argument, the court wrote that it was “satisfied that the defendants have failed to meet all three prongs of the accommodation test.” Specifically, it found that(1) women students at WCU comprise almost 61 percent of the student body but are offered less than 45 percent of the athletic opportunities; (2) the school has not demonstrated a “history and continuing practice” of expanding its women’s sports program over time because it has not added a women’s team for over a decade and then, adding insult to injury, decided to cut an existing women’s team; and (3) the school cannot claim that it has fully satisfied all existing female interest in sports because it cut a viable women’s team that was ready, willing, and able to compete.
Court Finds Fault with 1999 Survey
The federal judge found fault with WCU’s 1999 student survey, which was supposed to support the argument that female students were satisfied with the existing offering of women’s sports programs. It noted specifically that the response rate (39 percent) was below 60 percent, which meant, according to NCAA guidelines, that the survey was unreliable.
The court expressed sympathy for the university’s predicament, but found the plaintiffs’ argument for an injunction to be on solid legal ground.
“We understand that WCU finds itself in a difficult economic situation,” it wrote. “However, we observe that WCU could have heeded the warning of its internal committees and avoided this problem. WCU intentionally made the decisions that brought them to this courtroom, knowing full well the potential implications.” Barrett, et al., v. West Chester University, et al., Civil Action No. 03-CV-4978
E.D. Pa., 11/12/03
Attorneys of Record: (For plaintiffs) LESLIE A. BRUECKNER, LEAD ATTORNEY, TRIAL LAWYERS FOR PUBLIC JUSTICE PC, WASHINGTON, DC. and SHARON F. MC KEE, WILLIAM T. HANGLEY, LEAD ATTORNEYS, HANGLEY, ARONCHICK, SEGAL AND PUDLIN, PHILADELPHIA, PA. (for defendants) CLAUDIA M. TESORO, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, PHILADELPHIA, PA.