By Ellen J. Staurowsky, Ed.D., Professor, Sport Management, Drexel University
In Cash et al. v. Guilford College and Thomas Palombo, six current female students, eight alumnae, and two former head coaches of women’s teams claim that Guilford College (GC) and the athletic director (AD), in his individual and official capacity, discriminate against female athletes in violation of Title IX of the Education Amendments of 1972 by offering more participation opportunities to male athletes and treating female athletes in a manner that renders them second-class citizens. Plaintiffs further assert that coaches of women’s teams face myriad inequitable work conditions including access to fewer resources to run successful teams, direction of funds allocated to women’s sports into men’s sports, unequal pay, and a hostile work environment. The plaintiff coaches, Kimberly and Danny Cash, who served as co-head coaches of the men’s and women’s track and field (T&F) and cross country (XCtry) teams (and who are married to each other) also argue that GC administrators have responded to multiple requests to comply with Title IX over the period of five years with retaliatory actions ultimately resulting in the removal of Coach Kimberly from her position and Coach Danny’s reassignment to the men’s teams only.
Brief Overview of Guidance Under Title IX Regulations and Policy Interpretation
Several documents provide guidance to college administrators regarding the application of Title IX to athletic departments, among them regulations passed in 1975 (C.F.R. Section 106.41) and a policy interpretation on “Title IX and Intercollegiate Athletics” in 1979. The regulations identify 10 non-exclusive factors that should be reviewed when conducting a Title IX athletics audit, including the selection of sports and levels of competition offered accommodate interests and abilities of members of both sexes and an array of operational areas (equipment and supplies; scheduling of games and practices; travel and per diem allowances; opportunity to receive coaching and tutoring; assignment and compensation of coaches and tutors; provision of locker rooms practice and competitive facilities; provision of medical and training services; provision of housing and dining facilities and services; and publicity). Additionally, as provided for in the regulations, schools are also required to fairly allocate resources to teams and in the area of recruiting.
The Title IX policy interpretation maps out an expectation that athletic participation opportunities will be extended equitably to male and female athletes and that they will be afforded equal treatment and benefits to support their participation. The athletic participation compliance test includes three parts:
Proportionality – are athletic opportunities distributed between male and female athletes proportional to enrollment?; OR
History and Continuing Practice of Program Expansion — can the athletic department demonstrate a history of expanding opportunities for the underrepresented sex in a way that is responsive to their needs and interests? And has this been a continuing practice?; OR
Fully Accommodating Interests and Abilities — in the event athletic opportunities are not proportional to enrollment and the school does not have a history and continuing practice of program expansion, can the school show that they have met the existing needs and interests of the underrepresented sex?
In order to meet the requirements of the athletic participation test, schools need only comply with one of the three-parts of the test.
General Allegations Regarding Lack of Athletic Opportunities and Unequal Treatment
Based on the information cited in the complaint, Guilford appears to have several significant hurdles to overcome in its defense. Beginning with the three-part test to assess equity in athletic participation, the facts as presented lead to a conclusion that Guilford is not in compliance with Title IX’s requirements. Athletic opportunities are not offered proportional to enrollment. According to the Plaintiffs, it would take the addition of 177 new opportunities in order to remedy this situation. While proportionality is not the only standard, Guilford has not demonstrated a history and continuing practice of program expansion. Rather, despite an athletic participation gap of 20% favoring male athletes, GC added more opportunities for male than female athletes between 2009-2011 and 2015-2016 (35 to 8). The facts would suggest that Guilford is not able to address the third part. At GC, there is an alleged record of women’s teams (rugby, field hockey, sand volleyball, golf, j.v. basketball, equestrian, and cheer) having sought consideration or reinstatement as varsity sports and been denied.
In the complaint, Guilford administrators are accused of engaging improperly in the practice of roster management, meaning that the athletic participation opportunities as reported have been adjusted to suppress the actual number of opportunities for male athletes and inflate the actual number of opportunities for female athletes. As a consequence, the participation gap may be more pronounced than it appears.
Beyond opportunities to participate, the Plaintiffs detail discrimination in benefits and treatment. It is alleged that female athletes across several sports (swimming, tennis, track and field/cross country, and softball) are issued older uniforms, are given used equipment from men’s teams, and are limited in terms of uniform choices. Female swimmers report having to purchase their own swimsuits and gear (goggles, swim caps), a circumstance unmatched in terms of the experience of Quaker male athletes. As noted in the complaint, “No men’s team is required to purchase necessary equipment” (Cash et al. v. Guilford College, 2017, p. 17). This pattern of discriminatory treatment extends to the access female athletes have to laundry service. While male teams use the laundry service as a matter of course, female athletes have been told when they have requested the service that there is not enough money in the athletic department budget to provide that level of support to them. When it comes to access to weight training, plaintiffs allege that the facilities are inadequate, designed to meet the needs of male athletes without a gender conscious consideration relative to the need for lighter weights.
The athlete plaintiffs describe burdens to their participation that are not experienced by male athletes, including lack of access to locker rooms and lack of on-campus facilities to support the sports they compete in. In the case of swimming, which is a woman’s sport only at Guilford, the existing pool that was located on campus was converted into a weight room that accommodates more male athletes than female athletes. That decision resulted in women swimmers having to travel to a pool three miles away from campus. In order to participate, women swimmers must find their own transportation to the pool. Track and field and cross country athletes have also had to train and compete off campus at a local high school facility. In order to reduce rental costs, GC athletes were obligated to help run high school meets. Coaches Kimberly and Danny attempted to remedy the lack of a facility for cross country by using their own money and having the team help build an on-campus course (a situation precipitated by an initial promise from the AD that was not fulfilled). As explained in the complaint, after the new course was built, the coaches and XCtry team were told by the GC facilities director that a new tennis venue was going to be built on that same site.
Handling of Private Athletic Department Donations
Under Title IX, revenue derived from donations from supporters and boosters of athletic departments are to be accounted for within the overall budget and the benefits realized from those donations must be balanced equitably between male and female athletes. As a result, in circumstances where one team or several teams have more active booster clubs or generate more money from donors, the benefits accruing from donations received must be equitably provided to athletes in other programs. If the facts as alleged in the complaint are accurate, it appears that money received from donors was not handled in accordance with Title IX expectations.
As described in the complaint, GC’s athletic booster club, referred to as the Quaker Club “…is geared toward fundraising and financial support for men’s teams and mostly football and basketball. Monies raised are primarily for use by the men’s football and basketball programs and are not reported as revenue on, or used to offset, those teams’ budgets or tracked” (Cash et al v. Guilford, 2017, p. 28). Plaintiffs further allege that the athletic director would often tell women’s team coaches that the reason why the men’s teams had more resources was because those teams were recipients of more donor contributions. The complaint notes that despite attempts made between 2011 and 2016 on the part of coaches to educate administrators about the fact that this practice was in conflict with Title IX expectations, no changes were forthcoming.
Plaintiffs further reported that the budget model in place in the athletic department at Guilford required female athletes and their coaches to raise money to fund necessary expenses needed to operate their teams and in the absence of which the teams would not be able to compete. By way of example, Plaintiffs point to the fact that softball players were required to raise money to purchase game equipment and practice gear while the baseball team was not required to do so in order to maintain the viability of their program.
Assignment and Compensation of Coaches
According to the 2015-2016 Equity in Athletics Disclosure Act (EADA) report filed by Guilford College, 16 varsity teams (8 men’s, 8 women’s) were offered during that academic year. While each team was assigned a head coach, there was a difference in the number of head coaches who were employed full-time at the college. Male athletes had access to more full-time head coaches than did female athletes (seven men’s teams coaches compared to three women’s team coaches). There was also a difference in the number of assistant coaches allocated to men’s and women’s teams, with men’s teams having 19 assistant coaches and women’s teams having 10 assistant coaches. None of the women’s teams were coached by assistants who were full-time while three men’s teams had assistant coaches who were full-time.
In terms of average salary, head coaches of men’s teams on average received nearly $15,682 more compared to head coaches of women’s teams. Assistant coaches of men’s teams were compensated on average $7,811 more than assistant coaches of women’s teams. The complaint further alleges that coaches of men’s teams had greater access to housing on campus and opportunities for supplemental income through camp revenue.
Claims of Deliberate Indifference, Hostile Environment, & Retaliation
Plaintiff Coaches allege that despite repeated attempts to engage the athletic director about equity concerns, he initially indicated that he would “look into” the matters but did not follow up. They further assert that the athletic director along with other administrators offered repeated assurances to the department that they were in fact in compliance with Title IX.
In the spring of 2013, Coach Kimberly reports that the athletic director, who had served as her supervisor up to that point, was no longer taking meetings with her and had stopped speaking to her. As Coach Kimberly persisted in raising Title IX concerns, she “…was ostracized and treated like a pariah by most of the athletic department” (Cash et al. v. Guilford, 2017, p. 53). “Some coaches of women’s teams would commiserate with Coach Kimberly in private but did not want to risk their jobs or programs by being seen with her in staff meetings or public events” (Cash v. Guilford, p. 53). Both coaches report eventually being shunned in department meetings, with colleagues moving to the other side of the room when they came in.
Efforts to enlist the assistance of the Title IX coordinator were, according to the complaint, met with avoidance and an unwillingness to meet with Coach Kimberly. In the spring of 2014, Coach Kimberly made several appointments to meet with the designated Title IX coordinator who failed to attend those meetings, did not reply to emails Coach Kimberly sent, and actively avoided seeing her. When contacted by Coach Kimberly who wished to file a formal Title IX complaint with his office germane to her salary, he reportedly did not respond to the email.
Both Coach Kimberly and Coach Danny indicate that other coaches of women’s teams were in agreement that there were inequities that needed to be addressed but that they remained silent in public out of fear for their jobs. As the environment became more hostile, Plaintiffs claim that they were marginalized from their peers in the department.
Potential Affirmative Defenses & Challenges for Guilford
Guilford may argue that they have done their best to accommodate female athletes on their campus but face certain structural issues that cannot be overcome. As an example, they may acknowledge that female softball players do have a longer walk to their facility compared to baseball players but this is a matter of when those facilities were built, the campus master plan at the time, and not a matter of gender discrimination. Guilford may also argue that the differences in budget allocation between men’s and women’s sports is not a matter of preference for male athletes but simply the nature of sports (some sports require larger rosters or greater financial investment compared to others) and such differences are accommodated under Title IX. Guilford may also argue that they have not been passive in responding to gender equity concerns given that they initiated a study in 2012 and 2013 (Lopez, 2012; Pachecho, 2013; Smith, 2012). They might counter statements regarding the purpose of the Quaker Club (the athletic department booster organization) as being focused on men’s sports by pointing out its stated gender-neutral purpose is to “provide resources to fund special projects for the benefit of the athletics department” (Hart, 2016).
Giulford’s response to the complaint will offer further insight into their position. In the meantime, however, there are some obstacles that may prove challenging to overcome. The complaint notes, for example, that an administrative assistant and an assistant coach of a woman’s team resigned because of the ongoing equity issues. It further asserts that the athletic department hired two less qualified female coaches to replace Coach Kimberly (with one of those coaches leaving within four months of her hire). As of November 20, 2017, the GC athletic department directory lists three of the eight sports for women (lacrosse and T&F/XCtry) as being coached by interim appointments which indicates a level of leadership instability not seen in the men’s programs. In September of 2017, just two months before the lawsuit was filed, Guilford announced the appointment of an interim athletic director, with Thomas Palombo no longer serving in that capacity but continuing in his role as head men’s basketball coach (Staff, 2017).
The athletes and coaches in this case seek an injunction to stop the systemic discrimination that they allege exists in the athletic department at Guilford and that female athletes will be afforded equal athletic opportunities and benefits at the varsity and club sport levels. Plaintiffs also seek compensatory and punitive damages arising from the ongoing discrimination they have been subjected to and the losses they have suffered as a result (loss of opportunity, emotional distress).
Cash et al. v. Guilford College and Thomas Palombo. (2017). United States District Court for the Middle District of North Carolina. 1:17-cv-932. Retrieved from http://www.duffylawct.com/wp-content/uploads/2017/10/Guilford-College-Complaint.pdf
Equity in Athletics Disclosure Act Report. (2015-2016). Guilford College. Washington, D.C.: United States Department of Education. Retrieved from https://ope.ed.gov/athletics/#/institution/details
Guilford College. (2017, November 17). Athletic department directory. Retrieved from http://www.guilfordquakers.com/information/directory/index
Hart, E. (2016). Guilford College athletics and the Quaker Club: a ‘Best practice’ model for Division III fundraising. Powerpoint presentation. Retrieved from http://www.guilfordquakers.com/information/quakerclub/images/201617/Quaker_Club_Presentation_Aug_2016.pdf
Lopez, V. (2012, February 6). Cloud IX? Athletics department beings Title IX self-study. The Guilfordian. Retrieved from https://www.guilfordian.com/news/2012/02/16/cloud-ix-athletics-department-begins-title-ix-self-study/
Pacheco, R., & Neal, O. (2013, September 20). Forty years of Title IX: a Guilford assessment. The Guilfordian. Retrieved from https://www.guilfordian.com/sports/2013/09/20/forty-years-of-title-ix-a-guilford-assessment/
Smith, J. (2012, November 16). Title IX self-study examines gender equality in sports. The Guilfordian. Retrieved from https://www.guilfordian.com/news/2012/11/16/title-ix-self-study-examines-gender-equality-in-sports/
Staff. (2017). Bobb takes AD role at Guilford. The Times News. Retrieved from http://www.thetimesnews.com/sports/20170906/bobb-takes-ad-role-at-guilford-college
U.S. Department of Health, Education, & Welfare. (1975). Title IX regulations. C.F.R. Section 106.41. Retrieved from https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html
U.S. Department of Health, Education, & Welfare. (1979). Title IX and intercollegiate athletics.