Judge Sides with University in Title IX Dispute

Mar 28, 2008

A federal judge has sided with the University of Cincinnati and dismissed the claim of several female student athletes, who had alleged that the school was in violation of Title IX of the Education Amendments of 1972, 20 U.S.C.§§ 1681-87 and the Fourteenth Amendment to the United States Constitution.
Among the reasons that the court sided with the university was the fact that its ratio of female student athletes to all student athletes is higher than that of female undergraduates to the overall student body.
Student athletes on UC’s women’s rowing team filed the lawsuit, alleging essentially that the school had failed to provide the women’s rowing team with a boathouse, minimal equipment, training facilities, coaching staff, and other necessary items for an intercollegiate rowing team. The plaintiffs also alleged that their practice areas have not had restroom facilities, shower facilities, electricity, or protection for the boats, among other things.
In the opinion, the court zeroed in on the initial planning for the construction of a $100 million compound called Varsity Village, which opened in the Fall of 2006. “There is no dispute that the completed Varsity Village project did not include a boathouse for the women’s rowing team, as a boathouse would have to be built on or near the water where the rowing team practices,” wrote the court. To that end, the university sought to build such a facility, entirely through private funding.
These plans were complicated by the fact that the “athletic department … was financially challenged in several directions,” wrote the court.
“There were expenses tied to the construction of the Varsity Village, there were shortfalls in some of the donor projections for Varsity Village, and there were existing and continuing cost overruns of the budgets of various sports.”
In the fall of 2006, university officials first discussed the status of the rowing team with the school president and recommended discontinuing the rowing team and instituting a women’s lacrosse team. The University’s Board of Trustees accepted the recommendation.
On November 28, 2006, which was about a week before semester examinations, at about 11:00 a.m., school officials sent an e-mail to each of the members of the women’s rowing team announcing a team meeting to be held at 3:30 p.m. that day. At the meeting, they announced that the University was cutting the rowing team after its Spring 2007 season. In addition, school officials advised the team members that the University would grant releases so that team members could immediately pursue opportunities at any other university, that the University would honor commitments for financial aid at the same amount through a player’s senior year, that team members would continue to have access to the athletic academic advising staff as well as academic support facilities through the senior year, and that team members would continue to receive the appropriate medical attention for injuries suffered as a result of rowing.
Members of the rowing team sued, alleging that the University’s decision to terminate the women’s rowing team violates the Equal Protection Clause and the “equal accommodation” prong of Title IX.
In its analysis, the court reviewed the DOE’s 1979 interpretation of Title IX’s application to college sports, which suggested that to be in compliance, an institution must do one of the following: provide women and men with proportionate participation opportunities at rates that are substantially proportionate to their respective rates of enrollment as fulltime undergraduates (Prong 1); or demonstrate continuing program expansion for the under represented sex (Prong 2); or. fully accommodate the athletic interests of the under represented sex (Prong 3).
“The University has been in compliance with the equal accommodation prong of Title IX and the termination of the rowing team does not place it out of compliance,” wrote the court. “(T)the opportunities for participation by women athletes (i.e. roster spots on women’s teams) are more than proportional to the percentage of women in the undergraduate study body.”
The court wrote that the “plaintiffs’ argument depends on using the unduplicated count of athletes, that is, counting an athlete only once, regardless of how many different roster spots that athlete occupies on different teams. Plaintiffs offer no authority for using the unduplicated count and, to the contrary, the Department of Education prescribes the duplicated count. See 1996 Policy Clarification (Ex. D. to Plaintiffs’ Memorandum in Support); see also Cohen, supra.
“The plaintiffs assert that the University also incorrectly reports the number of male and female athletes by counting indoor track and field, outdoor track and field, and cross-country as separate sports. The Department of Education has established this format, however. Doc. 28-11, Pl. ex. E-4 “Track and Field, X-Country participants are broken out by each of the three sports.”) The current Department of Education reporting of “All Track Combined,” http://ope.ed.gov/athletics/InstDetail.asp, does not change that approach. Thus, it is proper for the University to count an athlete who competes on the cross-country team, indoor track team and outdoor track team as competing on three separate teams.
“The plaintiffs’ argument for non-compliance also depends on counting as undergraduates the students at the Clermont and Raymond Walters campuses; these students are not enrolled in the University’s baccalaureate programs and, per NCAA ruling, are not eligible to participate in intercollegiate athletics. The Department of Education has decided, moreover, that the purposes of Title IX, are best served if it ‘allow[s] each institution to use its customary definition of an undergraduate student as the basis for reporting the data required by the statute.’ 60 FR 61424, at 61428. This Court finds nothing arbitrary or capricious in the Department of Education regulations.
Because the University is in compliance with the demands of Title IX, summary judgment will be awarded to the defendant on the plaintiffs’ Title IX claim.”
Jessica Miller, et al. v. The University of Cincinnati; S.D. Ohio; Case No. 1:05-cv-764, 2008 U.S. Dist. LEXIS 4339; 1/22/08
Attorneys of Record: (for plaintiffs) Robert Brand Newman, LEAD ATTORNEY, Lisa Talmadge Meeks, Newman & Meeks Co LPA, Cincinnati, OH; Rosemary Doreen Canton, Taft, Stettinius & Hollister – 1, Cincinnati, OH. (for defendant) Rosemary Doreen Canton, LEAD ATTORNEY, Taft, Stettinius & Hollister – 1, Cincinnati, OH; Daniel Joseph Hoying, Taft, Stettinius & Hollister LLP, Cincinnati, OH.


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