Key Title IX Ruling
A federal judge determined Wednesday that competitive cheerleading, at least the brand offered at a small Connecticut institution this past season, is not a varsity sport that can be counted for the purposes of meeting gender equity requirements.
Last year, Quinnipiac University announced that, primarily due to budget constraints, it planned to cut its women’s volleyball team and replace it with a competitive cheerleading squad for the 2009-10 season. A competitive cheerleading squad is typically much cheaper to run than a women's volleyball team. Five players from the women’s volleyball team and their coach, however, sued Quinnipiac with the help of the American Civil Liberties Union of Connecticut, arguing that its decision to cut their team violated Title IX of the Education Amendments of 1972.
In a 95-page decision, U.S. District Judge Stefan R. Underhill agreed with the plaintiffs “that Quinnipiac discriminated on the basis of sex during the 2009-10 academic year by failing to provide enough equal athletic participation opportunities for women.” Though Underhill found that Quinnipiac engaged in some roster manipulation that deflated the size of its men’s rosters and inflated the size of its women’s rosters, he determined that Quinnipiac violated Title IX only by counting members of its competitive cheerleading squad as varsity athletes when it was not run in a way that qualified it as a varsity sport.
“Competitive cheer may, some time in the future, qualify as a sport under Title IX,” Underhill wrote. “Today, however, the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students."
In his ruling, which could affect other institutions that have been hoping to use competitive cheer to comply with Title IX, Underhill gave deference to a 2008 letter from the U.S. Education Department's Office for Civil Rights that outlines the standards an activity must meet to be deemed a sport under Title IX. Aside from having competition as its chief objective, a sport must be under the umbrella of a governing organization and have a defined season, set practices and coaches. In other words, it must resemble all other varsity sports at an institution in structure and operation.
Quinnipiac’s competitive cheer squad helped found the National Competitive Stunt and Tumbling Association, a sport governing body, with seven other institutions’ squads in time for this past season. Despite this move to adopt a uniform set of rules for the sport, Underhill noted, “the 2009-10 Quinnipiac competitive cheer season was marked by inconsistency in terms of whom the university competed against and what scoring system was applied.”
For example, in the 10 events in which Quinnipiac’s competitive cheer squad participated, it was evaluated using five different scoring rules, including those of four proprietary groups (not affiliated with the new NCSTA) that run cheerleading contests. Quinnipiac’s competitive cheer squad was also pitted against a hodgepodge of "competitors" throughout its first season. Underhill took particular issue with this matter.
“The Quinnipiac competitive cheer team plays collegiate club opponents who do not receive varsity benefits, such as scholarships, equipment, and training, and are not held to the same rules and regulations as a varsity program; collegiate sideline opponents who play their ‘sport’ not primarily to compete but to entertain audiences at other sport and campus events; all-star opponents who have no scholastic affiliation; and high school opponents who are younger, less experienced, and less physically mature than college athletes,” Underhill wrote. “No other Quinnipiac varsity team is forced to play such a motley assortment of competitors, and it cannot be doubted that the quality of competitions is more variant across the competitive cheer season than across the seasons of the university’s other varsity teams.”
At present, Underhill wrote, he is “not convinced” that Quinnipiac’s competitive cheer squad could make enough changes to be considered a varsity sport by Title IX standards by this coming season. Still, his criticism has not dampened the resolve of Quinnipiac officials.
“The university naturally is disappointed that the court has disallowed competitive cheer as a varsity sport,” wrote Lynn Bushnell, Quinnipiac’s vice president for public affairs, in a brief prepared statement. “We will continue to press for competitive cheer to become an officially recognized varsity sport in the future. Consistent with our longstanding plans to expand opportunities in women’s athletics, the university intends to add women’s rugby as a varsity sport beginning in the 2011-2012 academic year.”
As for the women’s volleyball team, Underhill only extended the injunction requiring Quinnipiac to keep it as a varsity sport for another season. The institution is not required to maintain the team beyond that, but Underhill mandated that “any decision to eliminate women’s volleyball” must be “accompanied by other changes that will bring the university into compliance with Title IX.”
Robin Lamott Sparks, head coach of the women’s volleyball team and an adjunct communications professor at Quinnipiac, was optimistic about her team’s future after hearing the ruling.
“We have to work with the university and see what they come up with,” Sparks said in an interview with Inside Higher Ed. “The kids are terrific, and I think Quinnipiac is a great place to work. I’m committed to coaching these kids. This has never been a personal thing. It’s not women against women or volleyball against cheer. This is about the law.”
In spite of the heated trial, Sparks said she still has a great relationship with her athletics director. If anything bothers her, she said, it is the misconception held by outsiders that this case was, in some way, personal.
“I had a one of my players call me crying and say, ‘Why do people think that we hate each another? They’re so wrong,’ ” recalled Sparks, in reference to the volleyball players and competitive cheerleaders. “I’ve talked about this with the athletes and said, 'You can only continue to act with class and the way you should.' That’s what we’ll continue to do. You can disagree without being disagreeable.”
Title IX experts had a mixed reaction to Underhill’s ruling and were divided in their reading of its significance.
Lamar Daniel, a former Office for Civil Rights staffer and now a gender equity and sports management consultant who represents a number of high-profile institutions, argued that Quinnipiac primarily “got itself into trouble” by eliminating an established women’s sport like volleyball at the same time it introduced competitive cheerleading. Without this move, he said, the cheer squad would probably have not generated any fuss.
For example, high-profile institutions like the University of Maryland at College Park and the University of Oregon that have added competitive cheerleading did so without getting rid of any other sports. As a result, Daniel said he does not think other institutions that have competitive cheerleading squads and count them in their Title IX totals, like Quinnipiac, will be open to similar suits.
“I’m surprised the judge jumped in there and defined what is or is not a sport,” Daniel said. “I would have deferred to the [National Collegiate Athletic Association] on that, and the NCAA will have a chance to rule on it soon when some of the places bring forth a proposal for it to be considered an ‘emerging sport.’ The schools offering it are not lightweights. They won’t back down.”
Nancy Hogshead-Makar, legal adviser for the Women’s Sports Foundation and professor at Florida Coastal School of Law, had a markedly different take. She argued that those institutions with competitive cheerleading squads are now open potentially open to lawsuits if, for example, there are women’s club teams “waiting in the wings” that have been denied in recent years because their institutions maintained that they already met Title IX requirements. The fact that those institutions may now have 30 or so fewer competitive cheerleaders in their gender equity counts, she added, makes a significant difference.
“They should make [competitive cheerleading] a [junior varsity] sport until it generates enough support to make it a genuine sport,” Hogshead-Makar said. “Then, it’ll either take off or it won’t. There’s some enormous unmet need for athletics experiences out there.”
Erin Buzuvis, associate professor at Western New England College School of Law and co-founder of The Title IX Blog, said she was not surprised by Underhill’s decision, noting that she thought it would most likely prove a neutral influence on the growth of intercollegiate competitive cheerleading.
“I think schools that genuinely see interest in competitive cheer and want to add it in the short term will be just as likely do so,” Buzuvis said. “At the moment, they can add it, but they shouldn’t expect it to count [for Title IX].”
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