Bailey Glasser, which has built a national reputation when it comes to representing plaintiffs in Title IX litigation, has sent a letter to Dr. Alan Drimmer, President of Cleary University, alleging that the school violated Title IX when it eliminated its Women’s Lacrosse program.
Cleary has not responded to the letter, according to attorney Arthur Bryant, who leads the legal team.
“Cleary University’s elimination of its women’s lacrosse team is a blatant violation of Title IX,” Bryant told Sports Litigation Alert. “The school’s failure to respond to my letter — and follow-up phone calls and emails — is very surprising and remarkably shortsighted. I have been successfully litigating Title IX sex discrimination cases on behalf of female and male student-athletes for 35 years and never had a school fail to respond before. In the past two years alone, we have resolved similar cases without the need for litigation with eight different colleges and universities. But Cleary apparently wants to be sued. So, we will have to file suit, Cleary will be held in violation of Title IX, and the school will pay all of the costs and attorneys’ fees involved.
The Bailey Glasser wrote the following to Dr. Drimmer:
“I and my co-counsel have been retained by members of the women’s varsity lacrosse team to prevent their team’s elimination and, if necessary, pursue a sex discrimination class action against Cleary University (“Cleary”) for depriving its female athletes and potential athletes of equal participation opportunities and treatment in violation of Title IX of the Education Amendments of 1972. Please respond to this letter as soon as possible and, in any event, no later than Monday, August 1, 2022.
On May 2, 2022, Cleary announced to the members of its women’s and men’s varsity intercollegiate athletic lacrosse teams that it was eliminating their teams at the end of the 2021- 22 season. Cleary does not appear to have announced that decision elsewhere. As best we can tell, Cleary issued no press release about it. An internet search produces no news about it. The decision is not mentioned on Cleary’s web site, including the sections of Cleary’s web site dedicated to its intercollegiate athletic program, the women’s squash team, or the men’s squash team. And it is does not seem to have been mentioned on Cleary’s social media accounts, although Cleary announced on Instagram today that it was planning to add women’s and men’s basketball teams in 2023-24.
There is an obvious reason why Cleary would want to keep secret that it is eliminating its women’s and men’s lacrosse teams, but publicly announce its intent to add new women’s and men’s basketball teams in the future: the elimination of the women’s lacrosse team plainly violates Title IX. As you know, Title IX bars sex discrimination by educational institutions receiving federal funds. This year is Title IX’s 50th Anniversary. Eliminating a women’s team in violation of Title IX is no way for Cleary to mark that anniversary.
Under Title IX, schools are prohibited 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.” 44 Fed. Reg. 71418 (Jan. 16, 1996). Cleary fails this test.
According to the most recent publicly available Equity in Athletics Disclosure Act data that Cleary submitted to the U.S. Department of Education and verified as accurate, the school had an undergraduate population in 2020–21 of 165 women and 227 men. So, undergraduate enrollment was 42.09% women. Cleary’s intercollegiate athletic teams that academic year had 87 women and 171 men, or 33.72% women—creating an 8.37% gap between the women’s undergraduate enrollment rate and their intercollegiate athletic participation rate. Given the number of men on its varsity teams, Cleary needed to add 37 women to its intercollegiate athletic program to provide equal participation opportunities under Title IX.
Instead of adding opportunities for women, however, Cleary just announced that it is eliminating the women’s lacrosse team (and the men’s team). With the teams’ elimination, the school’s participation numbers will drop to approximately 158 men and 74 women, or 31.9% women—increasing the gap to 10.2%. Cleary will need to add 41 opportunities for women to achieve gender equity. This is, of course, more women than participate on the women’s lacrosse team. So, Cleary’s decision to eliminate the women’s lacrosse team violates Title IX. The addition of women’s and men’s basketball teams in 2023-24, moreover, will not change that fact at all.
I would like to meet with you and/or the school’s lawyers and discuss the relevant facts and the law, as well as the likely outcome if a lawsuit is filed. It is my hope that, considering these factors, Cleary will agree to reinstate the women’s lacrosse team and come into compliance with Title IX to avoid the need for a lawsuit.
Unless Cleary does so—or has plans for compliance with Title IX we do not know about—we will file a class action and seek a preliminary injunction immediately preserving the women’s lacrosse team. Courts throughout the country have consistently issued preliminary injunctions preserving women’s varsity teams when the elimination of a women’s team violates Title IX. See, e.g., Lazor v. Univ. of Connecticut, 560 F. Supp. 3d 674, 677 (D. Conn. May 26, 2021) (granting temporary restraining order to reinstate the women’s rowing team); Ohlensehlen v. Univ. of Iowa, 509 F. Supp. 3d 1085, 1088 (S.D. Iowa 2020), appeal dismissed, No. 21-1203, 2021 WL 3174982 (8th Cir. Feb. 26, 2021) (granting preliminary injunction to reinstate the women’s swimming and diving team); Mayerova v. E. Michigan Univ., 346 F. Supp. 3d 983, 997 (E.D. Mich. 2018), appeal dismissed, No. 18-2238, 2020 WL 1970535 (6th Cir. Apr. 20, 2020) (granting preliminary injunction to reinstate the women’s varsity softball and tennis teams); Portz v. St. Cloud State Univ., 196 F. Supp. 3d 963, 978 (D. Minn. 2016) (granting preliminary injunction to reinstate the women’s varsity tennis team); Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277 (D. Conn. 2009) (granting preliminary injunction to reinstate the women’s varsity volleyball team); Choike v. Slippery Rock Univ., 2006 WL 2060576 (W.D. Pa. July 21, 2006) (granting preliminary injunction to reinstate the women’s varsity water polo and swimming teams); Barrett v. West Chester Univ. of Penn., 2003 WL 22803477 (E.D. Pa. Nov. 12, 2003) (granting preliminary injunction to reinstate the women’s varsity gymnastics team); Favia v. Indiana Univ. of Penn., 812 F. Supp. 578 (1993) (granting preliminary injunction to reinstate the women’s varsity gymnastics and field hockey teams); Cohen v. Brown Univ., 809 F. Supp. 978 (D. R.I. 1992), aff’d 991 F.2d 888 (1st Cir. 1993) (granting preliminary injunction to reinstate the women’s varsity gymnastics and volleyball teams).
We hope that will not be necessary in this case. I look forward to hearing from you as soon as possible and, in any event, no later than Monday, August 1, 2022.”
