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Split Decision in Title IX Case

August 4, 2011

The University of California at Davis did not discriminate against a group of female wrestlers a decade ago -- but it violated Title IX of the Education Amendments of 1972 because the number of women playing sports fell significantly while the plaintiffs were in college, a federal judge ruled Wednesday in a fractured and complicated decision that left both sides claiming victory in a long-running lawsuit.

Judge Frank C. Damrell Jr.'s opinion hangs on a little-adjudicated question in federal civil rights law: when an educational institution can (and cannot) be found to have continuously expanded athletics opportunities for women. If this case has implications for other colleges and into the future, it is likely to be because of the judge's conclusion that Davis violated the "second prong" of Title IX -- which requires that institutions show a "continual expansion of athletic opportunities for the underrepresented sex" -- because there was a significant drop in the number of women on its intercollegiate teams during the time the plaintiffs were enrolled. Title IX prohibits sex discrimination at institutions that receive federal funds.

"The gravamen of Prong Two compliance is an ever-increasing number of actual participation opportunities for the underrepresented sex, in this case women," Damrell wrote. "When an institution loses over 60 opportunities in two years and never fully regains all of those opportunities over the next four years, such an institution cannot be held to be Title IX compliant under Prong Two.”

The convoluted case at UC-Davis dates to 2001, when several women sued because they had been dropped from the wrestling team and, after bringing a federal complaint, reinstated but ordered to compete against men for spots on the squad. After a series of protracted legal maneuverings, the women refiled their lawsuit in 2007 as a class action, accusing the university of failing to continually expand athletics opportunities for women.

But the same judge, Damrell, tossed out their lawsuit in May 2008, ruling that the former athletes had failed to notify the university that it was being accused of broad-scale discrimination and to give it a chance to rectify the situation. Because of that procedural ruling, the court did not address the merits of the plaintiffs' case. But in February 2010, the U.S. Court of Appeals for the Ninth Circuit overturned Damrell's decision, requiring Davis and several of its officials to defend themselves not only against charges that they violated Title IX, but also that they violated the Equal Protection Clause, opening the door to punitive damages.

Given a chance to rule on the merits of the case, Damrell still sided with UC-Davis on most matters. He rejected all of the claims related to whether Davis discriminated against the plaintiffs by declining to give them an opportunity to compete in intercollegiate wrestling, saying that the women "were not cut from the men's team because of their sex" but "because, like the other male student-athletes who did not make the roster, they could not compete" at the high level of intercollegiate wrestling at which Davis participated. Damrell also ruled that the individuals sued -- the university's former chancellor, athletics director, and other officials -- had immunity and therefore cannot be subject to punitive damages.

The judge also had generally supportive things to say about the overall handling of the athletics program by Davis and its officials, crediting it with "a strong history of supporting women’s participation in athletics and even with expanding its sports offerings for women even amid significant budget cuts at various points its history.

But those conclusions did not help the university when it came to defending itself against the assertion that it had failed to "continuously" expand sports opportunities for women.

Most athletics lawsuits brought under Title IX have focused on the contentious first prong of the policy guidance the federal government issued in 1979 for meeting the law's athletics participation requirement. The first prong mandates that institutions offer athletic opportunities for men and women in numbers “substantially proportionate” to their respective enrollments.

If they do not meet that test, as Davis (like many colleges and universities) did not, they have two other options: the so-called third prong, which allows an institution to demonstrate that its existing athletic offerings accommodate the “interests and abilities” of the underrepresented sex, or the second prong, showing a history and continuing practice of program expansion. Recent studies show that relatively few colleges use the second prong to try to meet Title IX's proportionality standard.

In defending the lawsuit, Davis conceded that it could not meet the first or third prongs, Damrell said in his ruling. But the university vigorously argued that its creation of three women's teams in the mid-1990s and one in 2006 showed that it had met the test of continuous expansion of opportunity for women.

"We believe very strongly that the continuum showed both a history and a practice of program expansion," said Nancy Sheehan, whose firm, Porter Scott, represented the university. "The number of teams added during that time far exceeds those added by other schools that have faced Prong Two litigation."

But Damrell used a very different test to determine whether Davis met the Prong Two test. The university had eliminated two junior varsity teams (in women's water polo and lacrosse) in 2001 -- for "legitimate, non-discriminatory reasons," the court said -- resulting in a reduction of about 30 participation opportunities for women. Eliminating those teams "does not create a Title IX violation in and of itself," Damrell said, and it is understood that colleges will have fluctuations from year to year in the number of female athletes (and this can be permissible). But Davis's "failure to replace these opportunities" during the period when the plaintiffs were enrolled "prevents UC Davis from relying on Prong Two to establish compliance."

In total, Damrell stated, the number of participation opportunities for women fell from 424 in 1999-2000 to 363 in 2004-5, before climbing again to 401 in 2006 when Davis added women's golf. "Under the circumstances, the court cannot conclude that UC Davis had a continuing practice of program expansion in the face of such a decline in actual participation opportunities," the judge wrote. "Such evidence demonstrates overall program contraction of actual female participation opportunities, not expansion."

Lawyers for the university and for the female plaintiffs said they believed Damrell's interpretation of Title IX's second prong broke new ground. "I don't think" courts hearing other Title IX cases have looked at trendlines in the number of participants over time, said Sheehan, the lawyer for Davis.

Noreen Farrell, a lawyer for Equal Rights Advocates, which represented the former female wrestlers, praised the judge's analysis. "I think this case is a modern-day look at Prong Two, and it's actually very straightforward: expansion means expansion," she said.

"Universities have flexibility, but if they choose to rely on Prong Two, this presents a very clear and consistent reading of the regulations," she said. "If you drop opportunities, you need to replace them."

 

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