By Peter Dawson
The pandemic has exacerbated the gender equity battles between student athletes, and their colleges and universities.
In fact, more than 30 schools have axed almost 100 teams across the country to alleviate financial burdens on their respective athletics departments, according to a recent “60 Minutes” segment.
One of the more recent situations involves Fresno State University and the members of the recently shuttered women’s lacrosse program.
Enter attorney Arthur Bryant, of the West Virginia-based Bailey & Glasser. In a letter written by Bryant to Fresno State University President Dr. Joseph I. Castro, he argues that “under Title IX, educational institutions receiving federal funds cannot eliminate 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). Fresno State fails that test.
It is a federal law. They have to comply with it…you can’t get away with violating it because you say you don’t have enough money.”
So, why did the plaintiffs select Bryant? In recent years he was called upon to represent the cut women’s team at Brown and William & Mary. His legal arguments and case work led to a favorable outcome.
William & Mary reinstated its women’s gymnastics, swimming, and volleyball teams. It also agreed to create a Gender Equity Plan and come into full compliance with Title IX by the 2022-23 academic year in order to forestall legal action in the future. Brown followed a similar course.
In the case of Fresno State, Bryant’s first act was to send a letter to Dr. Castro on Dec. 3. The university president did not respond. So, Bryant sent a second letter on Dec. 8, one that threatened to challenge the university in court.
A key part of his letter to Dr. Castro read as follows:
“Fresno State’s elimination of the women’s lacrosse team is especially alarming both because of the school’s long-term, nationally-prominent reputation and record for violating Title IX and because of your highly-publicized February 2016 announcement that the school would ‘be a national leader’ in compliance with Title IX. The Fresno Bee’s article of February 12, 2016, ‘Fresno State No Longer Under Federal Eye for Title IX Gender Equity’, tells the story.
“As the article reports, Fresno State had been under investigation by the U.S. Department of Education’s Office for Civil Rights (OCR) for violating Title IX since 1992, when Associate Athletic Director Diane Multinovich ‘blew the whistle on inequalities between men’s and women’s sports.’ That launched a two-year investigation that resulted in Fresno State being found in violation of 11 of 13 areas of treatment. The school ‘had to meet 45 conditions’ and ended up being ‘under the nearly 25-year eye of federal Title IX investigators.’”
Bryant further stated that “According to the most recent publicly available Equity in Athletics Disclosure Act data that Fresno State submitted and verified to the U.S. Department of Education, in the 2018-2019 academic year, the school had an undergraduate population of 11,518 women and 7,828 men. So undergraduate enrollment was 59.54% women. The school’s intercollegiate athletic teams that academic year had 256 men and 323 women, or 55.79% women—creating a 3.75% gap between the women’s undergraduate enrollment rate and their intercollegiate athletic participation rate. Given the number of men on the varsity teams, Fresno State would have needed to add 54 women to its athletic program to be providing equitable participation opportunities for women.”
By Dec. 5, a spokesperson from Fresno State did address the allegations by stating that the university has “a steadfast” commitment to gender equity. Upon receiving Bryant’s second letter, Fresno State University Counsel Darryl Hamm sent back an email which stated that the university was planning on responding to the alleged Title IX violations and that Fresno State’s “steadfast” commitment to gender equity statement was not empty words.
On Dec. 11, Castro made a public case by saying: “Given what occurred over the last nine months, it was clear to me that we needed to make an adjustment, and we made that adjustment in terms of calling for the elimination of three sports. And we did so in a way that was cognizant about Title IX regulations and will actually position us in a way where we’re even more equitable than we were before.”
However, Bryant’s initial letter to Dr. Castro countered these claims. “During that time, gender discrimination in Fresno State’s athletics department was such a serious problem that a stunning number of women in the department had to file lawsuits against the school, which garnered major publicity and enormous verdicts and settlements,” he wrote. “Women’s volleyball coach Linda Vivas charged the school with retaliating against her for advocating gender equity and won a $5.85 million jury verdict in July 2007, later reduced to $4.52 million. Women’s basketball coach Stacy Johnson-Klein made a similar claim and won a $19.1 million jury verdict in December 2007, later reduced to $6.6 million. Associate Athletic Director Multinovich also alleged she was retaliated against for advancing gender equity and won a $3.5 million settlement. Fresno State paid significant sums to settle claims brought by other women, too, including softball coach Margie Wright and track coach Ramona Pagel.”
Bryant simplified his message and arguments when speaking with reporters: “When you take a look at the amount of money the school paid out in those verdicts cited in my letter, you know it’s jaw-dropping numbers. And you are thinking, and they don’t want to spend the relatively small amount? You are claiming they don’t have enough money here. I mean, please.”
