By Christian Dennie, ESQ
The lawsuit originated following Quinnipiac University’s (Quinnipiac) March 2009 announcement that in the 2009-10 academic year it would eliminate its varsity sports teams for women’s volleyball, men’s golf, and men’s outdoor track and field, while simultaneously creating a new varsity women’s competitive cheerleading team. Five women’s volleyball players and their coach filed suit against Quinnipiac in April 2009 and alleged that Quinnipiac violated Title IX by denying women equal varsity athletic participation opportunities and sought injunctive relief preventing Quinnipiac from eliminating the women’s volleyball team. Following a bench trial, the United States District Court for the District of Connecticut found that Quinnipiac violated Title IX by failing to afford equal participation opportunities in varsity sports to female students.
Quinnipiac timely filed an appeal to the United States Court of Appeals for the Second Circuit. On appeal, Quinnipiac argued that the District Court made the following errors: 1) 11 roster positions on the women’s indoor and outdoor track and field teams held by women’s cross country team members required to compete on the track team were improperly excluded; 2) all 30 rosters sports on the women’s competitive cheerleading team were improperly excluded; and 3) a 3.62 percent disparity between the percentage of all participation opportunities in varsity sports afforded for female students (58.22 percent) and the percentage of enrolled female undergraduates (61.87 percent) does not constitute a violation of Title IX.
1. Athletic Participation Opportunities for Women Runners: Discounting the Reported Numbers for Indoor and Outdoor Track
Quinnipiac elected to defend the plaintiffs’ discrimination claim only by reference to the first safe harbor created by the three-part test, arguing that its athletics program provided “substantially proportionate” athletic participation opportunities for women. The evidence at trial showed that Quinnipiac had an enrollment of 5,686 students in its undergraduate programs in the 2009-10 academic year, 3,518 were female and 2,168 were male. Varsity rosters for the first day of team competitions in 2009-10 listed 440 varsity athletes, of whom 274 were female and 166 were male. Thus, Quinnipiac maintained that women represented 61.87 percent of the total student body and 62.27 percent of all varsity athletes, while men represented 38.13 percent of the student body and 37.73 percent of all varsity athletes.
Before the District Court, the plaintiffs argued that Quinnipiac should not be allowed to count 54 athletic participation opportunities the cross-country, indoor track, and outdoor track roster positions held by the same 18 women. The OCR 1996 Clarification plainly states that “an athlete who participates in more than one sport will be counted as a participant in each sport in which…she participates.” However, the District Court and Second Circuit pointed out that this matter requires additional consideration because Quinnipiac’s women cross-country runners were not afforded a choice as to whether to participate in more than one sport; there were required to do so. Specifically, their participation on the cross-country team was conditioned on their membership on the indoor and outdoor track teams.
Quinnipiac offered scholarship money only to those members of the indoor and outdoor track teams who also ran cross-country. The District Court concluded and the Second Circuit affirmed that the totality of the circumstances suggested that the 60 positions on Quinnipiac’s indoor and outdoor track rosters were not reflective of genuine participation opportunities in these sports, but were inflated to afford mandated year-round training for the 18 members of the women’s cross country team. As a result, the District Court discounted some of the participation opportunities by stating that 13 of 18 women’s cross country runners competed in four or more indoor track meets and 12 of 18 competed in three or more outdoor track meets. In conclusion, the District Court held and the Second Circuit affirmed that five positions on the indoor track team and six positions on the outdoor track team were held by cross-country runners who did not—and effectively could not—avail themselves of distinct participation opportunities on the track teams because they were injured or red-shirted. But see OCR 1996 Clarification (stating “athletes who practice but may not compete” nevertheless “receive numerous benefits and services, such as training and practice time, coaching, tutoring services, locker room facilities, and equipment, as well as important non-tangible benefits derived from being a member of an intercollegiate athletic team”). Thus, for these individuals mandated membership on the indoor and outdoor track teams was “truly illusory.”
2. Athletic Participation Opportunities for Women in Competitive Cheerleading— The Determination that the Activity Does Not Yet Qualify as a “Sport”
In a 2008 letter, OCR explained that a genuine athletic participation opportunity must take place in the context of a “sport.” If a school is a member of a recognized intercollegiate athletic organization, such as the NCAA, that subjects the activity at issue to its organizational requirements, OCR will “presume” that the activity is a sport and that participation can be counted under Title IX. If that presumption does not apply or has been rebutted, OCR will determine whether the activity qualifies as a sport by reference to several factors relating to “program structure and administration” and “team preparation and competition.” In 2000, OCR issued two letters stating that cheerleading, whether of the sideline or competitive variety, was presumptively not a sport, and that team members should not be counted as athletes under Title IX. OCR, however, has indicated a willingness to review particular cheerleading programs on a case-by-case basis. At the District Court level, the parties stipulated that OCR has never recognized an intercollegiate varsity cheerleading program to be a sport for Title IX purposes. Further, Quinnipiac has never sought OCR’s recognition of its competitive cheerleading program as a sports activity.
The District Court found that competitive cheerleading is not a sport and the 30 roster positions could not be counted under Title IX because the activity did not “yet” afford participation opportunity of a varsity “sport.” Further, the District Court observed the NCAA does not recognize competitive cheerleading as a “sport” or an “emerging sport.” The District Court carefully analyzed the record and indicated competitive cheerleading is similar to a sport in some respects and different in others. The District Court concluded that the following are similar to other sports: 1) team’s operating budget, benefits, services, and coaching staff were structured and administered by the Quinnipiac athletic department; 2) the length of the season and minimum number of competitions; 3) governed by an athletic organization (i.e., National Competitive Stunt and Tumbling Association); and 4) the purpose of the team was to compete athletically against other intercollegiate varsity level teams. On the other hand, the District Court found the following differences: 1) Quinnipiac did not provide locker space for competitive cheerleading team members; 2) the team members did not receive NCAA catastrophic injury insurance because it is not an NCAA recognized sport; 3) Quinnipiac did not and could not conduct off-campus recruitment for its competitive cheerleading team; 4) there were no uniform set of rules applied to competitive cheerleading competitions; 5) Quinnipiac competed against a “motley assortment of competitors” including varsity intercollegiate cheerleading teams, collegiate club teams, high school age competitors, and all-star opponents; and 6) there was no progressive playoff system leading to a championship game.
In reviewing the totality of the circumstances, the District Court concluded that Quinnipiac’s competitive cheerleading team did not compete in circumstances indicative of varsity sports. Thus, the District Court ruled and the Second Circuit affirmed that the 30 roster positions for competitive cheerleading members could not be counted for Title IX purposes because the activity did not “yet” afford women genuine participation opportunities in a varsity sport.
3. Finding a Title IX Violation Based on a 3.62 Percent Disparity
Having reduced Quinnipiac’s claimed athletic participation opportunities for women by 41 (i.e., 30 in competitive cheerleading and 11 cross country runners), the Second Circuit concluded that the District Court correctly found that the school had a total of 400 varsity participation opportunities, of which 233, or 58.25 percent, were assigned to women. Because enrollment data established that 61.87 percent of Quinnipiac’s undergraduate population was women, this indicated a 3.62 percent disparity in the athletic opportunities afforded to women. Quinnipiac, however, responded that the disparity is the result of fluctuations of enrollment. The Second Circuit indicated the emphasis on a relatively small percentage of disparity is unwarranted, because generally a two percent difference will be more likely to be substantially proportionate. This case obviously constitutes a greater disparity.
Christian Dennie is a sports law attorney at Barlow Garsek & Simon, LLP. He can be reached at cdennie@bgsfirm.com.
