By Ellen J. Staurowsky, Ed.D., Senior Writer and Professor, Sports Media (retired), Ithaca College, staurows@ithaca.edu
In Dodd et al. v. Marshall University, women athletes who competed on the swim and dive team contended that the University violated their civil rights under Title IX of the Education Amendments Act of 1972 by cutting their sport, a decision intended to go into effect in June of 2026. Following a letter from the law firm Bailey Glasser challenging the wisdom of that decision, a subsequent legal complaint filed by 15 members of the team, an online petition and social media campaign stirring public opposition to the decision, and the introduction of a bill in the West Virginia State House (SB 502 “Women’s Collegiate Sport Protection Act”) to protect women’s Olympic sports from being cut by university administrators, the University relented and reversed course.
Background
Marshall University officials initially attempted to justify the decision to cut the team by explaining that they were in the midst of implementing a plan to align their athletic department with Title IX requirements by replacing women’s swimming and diving with a new women’s STUNT team and by adding more spots for women on existing teams. In public statements from the president and the athletic director, the University asserted that the proposed plan would expand opportunities for women athletes while relieving the athletic department of the financial burden of dealing with necessary infrastructure upgrades to the Fitch Natatorium including the swimming pool, locker rooms, aquatic systems, and athletic training area. They effectively argued that the athletic department did not have the money to provide a practice and competition facility that met NCAA Division I swimming and diving standards nor the resources to carry what had been within their athletic department, an “expensive” women’s sport. Based on the University’s assessment, the $819,000 used annually to support women’s swim and dive could better support more opportunities for women in the program through the addition of STUNT (which had a projected budget of roughly $330,000) and the full use of roster sports on existing teams (Smith, 2026, starting at 2:03). According to President Brad Smith, the cutting of women’s swim and dive and addition of STUNT would save the athletic department over $2 million over the span of three years while supporting an increase of more than 30 athletic participation opportunities for women athletes.
The contours of such a plan had not been publicly outlined by the department prior to the abrupt announcement. In the draft report of an external audit submitted by a Title IX consultant with a date of October 31, 2025, which was included in the appendices for the case, the University was cautioned that it was vulnerable in the area of offering equal athletic participation opportunities for women (Grant, 2025). Explaining Title IX’s three-part test to assess whether schools effectively accommodate the interests and abilities of athletes, the consultant noted that schools have one of three ways to achieve compliance in this area:
- Part 1 – Substantial Proportionality – A school can provide athletic opportunities to men and women athletes proportional to the representation of men and women in the undergraduate student population, OR
- Part 2 – History and Continuing Practice of Program Expansion – A school can demonstrate that they have a history and continuing practice of program expansion, meaning that typically women athletes as the underrepresented sex do not receive athletic opportunities at rates proportional to the enrollment of women students but the school has been systematically addressing the problem by expanding opportunities and growing programs for women consistently over the span of years, OR
- Part 3 – Effectively Accommodating the Interests and Abilities of Athletes – Should a school fail the first two parts of the test, the onus falls on the school to demonstrate that the interests and abilities of women athletes on their campus have been effectively met and there is no need to offer more athletic opportunities.
Although it is clear in reading the draft report that Marshall was angling to make the case that it was meeting Title IX athletic participation requirements through the third part of the test, several red flags had been identified regarding the adequacy of Marshall’s basic obligation to fulfill any part of the test. An examination of materials shared by the University with the consultant for the academic years 2023-2024, 2024-2025, and 2025-2026 led her to conclude that the University provided far fewer athletic opportunities for women, a gap that would have required the addition of several teams and roughly 210 athletic opportunities or some combination of adjusting the men’s program downward while growing opportunities for women. A disproportional distribution of opportunities favoring men that exceeded their representation in the undergraduate student body by 15.6% signaled a failure to meet Part 1 (Substantial Proportionality) of the test (Grant, 2025).
In light of the fact that Marshall had not added a women’s sport since 2002, which at the time was women’s swimming and diving, and they had no plan in place to address the proportionality problem, they also could not demonstrate that they had a continuing practice of program expansion (Part 2 of the test). After delineating a number of factors to demonstrate whether a school complies with Part 3 of the test, that being Effectively Accommodating the Interests and Abilities of Athletes, the consultant determined (with some information pending at the time of the draft report) that Marshall “arguably” was in compliance under Part 3. She highlighted the fact that women students had not come forward to advocate for club sports and/or activities to be elevated to varsity status and that, in interviews with coaches and athletes, they did not bring up the issue of new sports for women. She did note that Marshall’s conference, the Sunbelt Conference, offered a championship in Beach Volleyball, something not offered at Marshall. The consultant’s determination regarding compliance with Part 3 was a tentative one, absent findings from a survey of interest that she was waiting to review.
There is no mention of adding women’s sports or opportunities except in the theoretical within the draft report and nothing about adding the sport of STUNT while eliminating women’s swim and dive. What does stand out, however, is a statement that reads that the elimination of women’s teams, even if they might be reinstated in the future, presents a hurdle to argue that an athletic department has made an effort to expand opportunities for women athletes. Developing the logic further, she also points out the implication that if an athletic department cuts an existing, viable team it becomes difficult and essentially impossible to argue that the interests and abilities of women athletes were accommodated after such a cut.
The Plaintiffs argued that this was a clear case of violating Title IX (Dodd et al. v. Marshall University, 2026). The actions taken by Marshall administrators immediately violated Parts 2 and 3 of the tests when the institution knew and was on notice that it was grievously violating Part 1 of the test. The outcome here is similar to those achieved on behalf of women athlete plaintiffs at East Carolina University in 2021 (Associated Press, 2021); William & Mary in 2020 (Staurowsky, 2020), and others.
The Announcement That the Women Were Losing Their Team Took All of 2.5 Minutes
Those who operate in the higher education sphere, especially in this era, may empathize with and/or understand some of the logic behind an administrator’s effort to address budget shortfalls with personnel and program cuts and the designation of certain capital projects like a costly facility renovation as low priority.
That said, athletic departments are typically the only departments on campuses that are sex segregated. Testing out the messaging used by administrators when explaining decisions to eliminate programs is crucial as are historical compliance patterns. According to the complaint the Marshall athletic director allegedly explained that the women’s swim and dive team had been chosen because it was the “most expensive” sport and was the most “cuttable”. That message was purportedly delivered to the team just prior to their conference championship in a meeting that lasted, according to the complaint, all of 2.5 minutes (Dodd et al. v. Marshall, 2026, p. 15).
The logic behind this begs the question what other women’s sports were viewed as “cuttable”, what the term “most expensive” means within the context of that athletic department and its budget, and what the implications would be if Marshall was permitted to implement that kind of logic (Dodd et al. v. Marshall University, 2026, p. 15). Theoretically, once women’s swim and dive was eliminated and the program’s resource allocations reset, there would still have been another women’s team that was “the most expensive” and “cuttable”. In effect, the cuts would potentially not end with one women’s team. The accuracy of the statement itself and how the designation “most expensive” was arrived at also remains unanswered, as does the question of why turn to “the most expensive” women’s sport to resolve budget pressures without considering “the most expensive men’s sport”? If this kind of decision making was permitted to go unchallenged, it would set the budget priorities up for women’s athletic programs to be cut where infrastructure costs become too great and allow schools to simply neglect the needs of women’s sports, cutting them and replacing them with less costly alternatives.
An Open Question: Can Schools Stay Within Title IX Compliance Parameters While Cutting Women’s Teams?
A legitimate question to ask is whether a school can safely remain Title IX compliant and reset budget priorities to best achieve solvent and sustainable athletic department budgets by cutting teams. Given that Title IX compliance is assessed on a case-by-case basis, there is no universal answer to that question. The question of course assumes that schools are Title IX compliant to begin with, and on that front, it is often not the case.
This case offers some insight, however, into how past neglect of Title IX considerations make it more difficult in the present to simply cut teams. Not only does the analysis demonstrate that Marshall had more than 50 years to come up with a plan to offer athletic opportunities to women athletes proportional to women’s enrollment on campus, cutting a sport immediately triggers violations of the history and continuing practice of program expansion and effectively accommodating the interests and abilities of women athletes parts of the test. To put it in a different way, to cut a women’s team under these circumstances attempts to rewrite history, denying those women athletes on a viable team who competed at the NCAA Division I level ever existed in order to balance a budget. Claiming financial hardship in the face of sex discrimination is an admission that the school did little about it for years [it was notable that in the Grant (2025) report the lockers were described as “rotting”, ventilation was poor, showers did not work”]. It becomes harder to argue that substituting one women’s sport with a less expensive one achieves the goal of equal treatment because the existing sport is reality (women’s swim and dive); the new sport (STUNT) merely represents the possibility of greater opportunity that will take several years to realize when growing a new program with no guarantee that the full projection of those new opportunities will come to fruition. Thus, women’s interests actually suffer under this kind of plan.
If the case was not settled and had moved forward Marshall’s reliance on Part 3 of the Three-Part Test to establish Title IX compliance as alluded to in the Title IX draft report from October of 2025 may have been problematic (Grant, 2026). In that report, the factors used to suggest they were “arguably” in compliance by effectively accommodating the interests and abilities of women athletes on campus cited a lack of advocacy for new sports by athletes and coaches interviewed by the consultant and an absence of effort on the part of current students involved in club sports to seek varsity status. Precarity is created here because athletes and coaches in existing programs are already operating with constrained resources. They are not likely to advocate for programs that are going to compete for those constrained resources. The question itself sets up a conflict of interest. Further, in this case, the information in the draft report conflicts with the university’s decision to move forward with adding the sport of STUNT. If Marshall was using the logic that they were in compliance with Part 3 of the Three-Part Text because they were effectively accommodating the existing interests and abilities of women athletes on campus by virtue that none of them advocated for new teams, then why add a sport that at least on the surface has no advocates and no support within the athletic department and on campus?
A takeaway from this case is that a school that is not in compliance with Title IX or is thinly complying with Title IX faces challenges in restructuring their athletic program by cutting women’s programs. Such cuts often trigger other violations and increase scrutiny on the way in which decisions regarding equal treatment within athletic departments are considered and/or ignored. These issues may occur within the college sport landscape but should not be blamed on other issues, for example, like the House Settlement.
References
Associated Press. (2021, January 8). ECU restores women’s sports teams under threat of lawsuit. Associated Press News. https://apnews.com/article/womens-sports-discrimination-lawsuits-coronavirus-pandemic-gender-discrimination-806f0ad4ab5fda6e013e0aff605efbf6
Dodd et al. v. Marshall University. United States District Court for the Southern District of West Virginia, Huntington Division. Complaint. 3:26-cv-00183. March 9, 2026.
Grant, H. (2025, October 31). Marshall University AY 2025-2026 Title IX summary (draft report). Exhibit A. Dodd et al. v. Marshall University, Case 3:26-cv-00183. March 9, 2026.
Smith, B. D. (2026, March 11). Marshall at the Moment: President Brad D. Smith on swim & dive decision. Video. https://www.youtube.com/watch?v=5V5Hz2b1nZQ&t=1s
W&M $124,866.90.
Staurowsky, E. J. (2020, October 23). William & Mary Restores Programs in the Midst of a Title IX Controversy. Sports Litigation Alert.
