By Ellen J. Staurowsky, Ed.D.
Whether tuned in to sports talk radio, sitting in on a sport sociology class, or just hanging out pool side chatting on a summer day, the question of what constitutes a sport often crops up, occasionally leading to lively debate and earnest argument. This very question featured prominently in a U.S. District Court District of Connecticut judge’s ruling published on July 21, 2010 that found Quinnipiac University’s assertion that competitive cheerleading was a sport on par with other intercollegiate varsity sports for purposes of Title IX compliance to be flawed and unacceptable (Underhill, 2010). At issue in this case was not just the question of whether competitive cheerleading could be recognized as a sport under Title IX but more importantly, how patterns of institutional decision making affect the quality of varsity opportunities offered for male and female athletes.
Timeline & Case History: Biediger et al. v. Quinnipiac University
In March of 2009, following what some have described as one of the worst economic downturns in United States history, administrators at Quinnipiac University (Quinnipiac) elected to cut three varsity athletics programs – men’s golf, men’s outdoor track, and women’s volleyball – in response to budget shortfalls. Aware that the act of cutting women’s volleyball would trigger a Title IX compliance problem because the institution could not meet any aspect of the three part test (substantial proportionality, a history and continuing practice of program expansion, or fully and effectively accommodating women’s interests and abilities), University officials chose to elevate the club sport of competitive cheerleading to varsity status. In the aftermath of that decision, five volleyball players and their coach filed a class action suit alleging that Quinnipiac had intentionally engaged in sex discrimination (Underhill, 2009).
Two months later, in May of 2009, the plaintiffs were successful in obtaining a preliminary injunction that ensured that the volleyball team would not be cut during the 2009-2010 academic year while the case was pending. The judge determined at the time that the plaintiffs would likely succeed on the merits of their Title IX claim based on significant evidence that the University manipulated its roster management system in such a way that participation ratios of male to females athletes in relationship to the ratio of males to females in the overall student population were accounted for in a misleading manner. In effect, while the number for male athletes reported on the Equity in Athletics Disclosure Report were suppressed due to the creation of maximum squad sizes for men (ceilings), the number for female athletes were artificially inflated by creating floors, or minimum squad sizes for women’s teams (Underhill, 2009). By raising doubts about the reported number of athletes used in the calculation of substantial proportionality, further doubts were raised as to whether genuine participation opportunities were being made available to female athletes (Hughes, 2010).
In the ruling last week following the trial, the court held that Quinnipiac failed to equitably provide athletic opportunities to female athletes and had violated Title IX due to several reasons. First, a requirement that female cross country athletes compete on the indoor and outdoor track teams in order to retain their scholarships established a policy for female athletes that did not exist in the men’s program (no male scholarship athletes were required to compete on another team in order to keep their scholarships). This requirement created a distortion in the participation number for female athletes because it could not be determined if female cross country athletes were competing in track of their own volition or doing so as a means of training for the sport of cross country and keeping their scholarships. Second, injured and redshirted female athletes who were not competing were still included to create a “Title IX statistic”, resulting in an over counting of the number of female athletes. Third, while Quinnipiac had begun to adjust its system of roster management in response to the preliminary injunction, nevertheless a 3.62% gap in participation opportunities, reflecting a shortfall of at least 41 female athletes, demonstrated that another team could be sustained. And fourth, the structure and governance of competitive cheerleading at the present time did not warrant a determination that it was properly designated as a varsity sport for women.
Why Competitive Cheerleading At Quinnipiac Is Not A Varsity Sport
There are many activities that satisfy what would be considered almost universal criteria for what is recognizable as an athletic activity. However, as noted in a letter from the Office for Civil Rights (OCR) to the Minnesota State High School League (MSHSL) in 2000, “Certain school activities in which students are engaged may be activities that require a considerable amount of athleticism, but not every athletic activity qualifies as a sport….”(as quoted in Underhill, 2010, p. 53). Further, “the OCR factors appropriately weigh not only the physical nature of the activity itself, but also how the experience of participating in that activity compares to the experience of participating on other varsity sports teams” (Underhill, 2010, p. 56).
For purposes of a Title IX analysis, schools are afforded flexibility and choice regarding how to achieve a proportional balance of athletic opportunities so long as those opportunities are real, not illusory, and genuine. This type of analysis begins with a presumption that sports recognized by an intercollegiate athletic organization such as the National Collegiate Athletic Association (NCAA) and are subject to the requirements of that organization can be counted under Title IX. In the absence of such a presumption, other factors such as program structure, administration, team preparation, and competition (Monroe, 2008).
In the case of competitive cheerleading, it is not recognized by the NCAA or other established intercollegiate athletic governing bodies. While eight universities including Quinnipiac became founding members of a fledgling organization known as the National Competitive Stunts and Tumbling Association (NSCTA) in 2009, the NCSTA’s aspiration of helping to guide the sport through the growing phase of becoming an NCAA sport remains a distant goal (N.A., 2010).
While Quinnipiac was able to partially meet some of the standards of review for what constitutes a varsity sport, by demonstrating that those participating in competitive cheerleading received some benefits similar to those of other athletes (i.e., coaching, uniforms, athletic training support), nevertheless there were four key areas where the program fell short. First, the court determined that the inability of the program to recruit off-campus represented a significant departure from accepted practice for an NCAA Division I team. Second, during the 2009-2010 season, Quinnipiac’s competitive cheerleading opponents included teams from high schools, clubs, and a few varsity level teams, a circumstance that could not support a conclusion that the quality and caliber of competition was comparable to that of their peers within the athletic department. Further, in season competitions were not conducted using a uniform set of rules. Third, the post-season competition in which Quinnipiac participated was an open invitational tournament rather than a progressive championship format, meaning that championship available to competitive cheerleading was not as selective and did not offer the caliber of competition that would be found in a tournament where teams were seeded. Further, the competition itself blurred the distinction between sideline cheerleading and competitive cheerleading, providing evidence that there was not a nationally recognized standard set of rules for the sport. And finally, the competitive cheerleading team at Quinnipiac was not afforded certain benefits of participation to which other teams had access, specifically a locker room and insurance coverage offered through the NCAA.
Implications & Considerations
While the ruling in Biediger v. Quinnipiac does not foreclose the possibility that competitive cheerleading may be recognized under Title IX as a varsity sport in the future, and the implications of this case may have no effect on schools that currently offer competitive cheerleading, the manner in which the sport is introduced into an athletic program and under what circumstances warrant careful consideration.
For example, in an amicus brief filed by the United States Department of Justice in support of the plaintiffs (Hughes, 2010) the authors urged the court to “look behind the numbers” to gain a better appreciation for what the numbers represented. By looking more closely at the numbers, there is also a contradiction that any school being subjected to Title IX scrutiny will have difficulty defending. While Quinnipiac positioned itself as an advocate for promoting women’s sports by joining the NCSTA, the claim creates three institutional vulnerabilities when done after cutting an existing women’s sport.
First, while it is the case that 117,793 athletes participated in competitive high school spirit squads in 2008-2009 according to the National Federation of State High School Associations (NFSHSA), one is left to wonder how genuine that commitment to female athletes is in light of the fact that the sport cut by Quinnipiac, women’s volleyball, is reported to be played in over 15,000 high schools throughout the United States with over 400,000 participants (NFSHSA, 2009).
Second, if the support for competitive cheerleading is emanating from a belief that the sport provides a quick and more important, cheap way of complying with Title IX, this rationale raises concerns about the genuine nature of the participation opportunities made available for female athletes created from such logic. Will institutions employing such a rationale be able to defend their actions relative to women’s sports by pointing to a pattern of adding cheap sports for women while maintaining expensive sports for men?
Third, as the court rightly noted, schools cannot achieve compliance with a phantom sport, meaning that an expressed intention to create a national sport by itself cannot be considered a reasonable approach to Title IX compliance in the here and now.
As these issues continue to be taken up by college and university officials, there is also the very real issue posed by the central question of what is a sport. In resolving that question in a way that makes sense to all parties and does so in an equitable fashion, there should also be an awareness that recognizing cheerleading may open a Pandora’s box if the question to follow is “what’s next”?
For example, in 2005, readers of J.K. Rowling’s popular Harry Potter book series started a movement to have the sport that she invented, Quidditch, embraced at the high school and college levels. In 2007, the Intercollegiate Quidditch Association (IQA) was founded, which has since gone international, with 400 colleges and 300 high schools in 45 states expressing an interest in the sport (IQA, 2010). Conceivably, this might be the next emerging sport to assert a voice in this dialogue.
And while the Wizarding World of Harry Potter may stress the limits of our patience and tolerance for such questions, what of marching bands, dance teams, and other such activities?
References
International Quidditch Association (2010). About Retrieved on July 22, 2010 at http://www.internationalquidditch.org/about/history/
Monroe, S. (2008, September 18). Dear colleague letter: Athletic activities counted for Title IX compliance. Washington, DC: United States Department of Education Office for Civil Rights. Retrieved July 22, 2010 at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20080917.html
N.A. (2010, January 28). Universities announcement formation of national competitive stunts and tumbling association. Press release. Retrieved July 22, 2010 at
http://www.quinnipiacbobcats.com/ViewArticle.dbml?DB_OEM_ID=17500&ATCLID=204876304
Underhill, S. (2009). Biediger et al. v. Quinnipiac University. Ruling and order granting preliminary injunction. Retrieved on July 22, 2010 at
http://scholar.google.com/scholar_case?case=17585297531308073526&q=biediger+v+quinnipiac&hl=en&as_sdt=2002
Underhill, S. (2010, July 21). Biediger et al. v. Qunnipiac University. Retrieved uly 22, 2010 at http://courtweb.pamd.uscourts.gov/courtwebsearch/ctxc/KX330R32.pdf
Staurowsky is a Professor & Graduate Chair of the Department of Sport Management & Media at Ithaca College. She can be reached at staurows@ithaca.edu
