A 'Retro' Title IX Lawsuit

Two female athletes are accusing Eastern Michigan University of sexual discrimination. They allege that the institution's athletics aren't equal for women.

June 29, 2018
 
Eastern Michigan athletics director Scott Wetherbee announces that four programs would be cut for the next academic year.

Nowadays, when a college or university is sued over Title IX, the federal gender antidiscrimination law, it’s usually because someone thinks the institution fumbled in dealing with campus sexual assault.

But in a lawsuit that legal experts are calling “retro” civil litigation, two female athletes have accused Eastern Michigan University of limiting sports opportunities for women. Several teams were shut down, including softball and women’s tennis, with officials saying the budget could no longer sustain them.

The complaint comes as a political war wages over Title IX of the Education Amendments of 1972, particularly in the area of campus sexual assault. The Trump administration is in the process of revising its rules for how colleges should handle sexual assault. Education Secretary Betsy DeVos’s controversial statements on these issues, and the flaws that critics perceive in Title IX guidance from the Obama Education Department, have dominated the news cycle.

That makes it easy to forget how influential the law has been in making campus athletics more equitable -- and that some institutions haven’t met their Title IX obligations when it comes to sports.

“This case should not be happening today,” said John R. Thelin, professor of higher education and public policy at the University of Kentucky's College of Education. “It’s as if it were pulled from the archives of around 1990 to 1999. Athletic directors saw either women’s sports or selected nonrevenue men’s sports as easy targets to cut and balance the budget.”

Earlier this year, when Eastern Michigan announced that it wouldn’t offer wrestling, men’s swimming and diving, softball, and women’s tennis next season, the decision proved to be immediately unpopular. Students, families, professors and team supporters lobbied the administration hard. The faculty union mounted a media campaign and devised its own calculations on how cutting the sports would actually lose the university money.

The university has maintained that the cuts, affecting about 83 male and female athletes, were painful but necessary to remain financially stable.

“As we have stated previously, the decision to eliminate four sports programs was extremely difficult,” the university said in a recent response to the lawsuit. “We initiated the action to reduce expenses in athletics consistent with strategic reductions across the university. These efforts are part of a comprehensive process to realign our budget to ensure our ability to continue to invest in key priority areas, such as high-demand academic programs that meet the needs of today's employers, and to modernize the facilities in which the programs are taught.”

But the students suing the university, the president, the athletics director and the Eastern Michigan Board of Trustees in a potential class action argue that the cuts were illegal and that the university has long discriminated against women.

To be Title IX compliant, an institution must match the proportion of male and female athletes to the ratio of overall enrollment. It could also show a history of continuing program expansion, or that it fully meets the interests and abilities of both genders. Eastern Michigan last reported it had about 60 percent undergraduate women and 40 percent men. The lawsuit alleges that in athletics, participation is about 44 percent women and 56 percent men.

Eastern Michigan mildly disputed those figures, saying in its statement that the lawsuit “understates” women’s participation.

​The university noted that it now fields 10 women’s teams and seven men’s teams. The number of teams doesn't matter under the law, though. Football teams are much larger than, for instance, women’s tennis, which for Eastern Michigan numbered only about eight women. (The university adamantly declined to cut football, which has maintained a poor record in the National Collegiate Athletic Association’s Mid-American Conference.)

“We recognize how difficult this decision has been for the 83 student athletes (58 male and 25 female) who were participating in the four canceled sports,” the university’s statement reads. “We have great respect for all of them, including the two students involved in the lawsuit. Of the 83 students initially affected by the decision, several have graduated and others have moved on to other schools.”

The two plaintiffs are a women’s tennis player and a softball player who both allege that the cuts destroy their life plans, even though the university has offered to honor their scholarships (and all the other athletes’ from the discontinued teams).

Marie Mayerova, a rising senior at the university and a tennis player, grew up in the Czech Republic and secured a visa to attend college in America -- but only at Eastern Michigan. Even though she got offers to play at other institutions, Mayerova alleges in the lawsuit she would need to be accepted into another university with a women’s tennis program and then receive another scholarship offer before she withdrew from Eastern Michigan. Then she would need to return to her home country and obtain a new visa -- all before the next season.

The softball player, Ariana Chretin, said she enrolled at Eastern Michigan in part because of its aviation major and has had trouble finding another institution where she could both play and continue her desired degree.

Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, predicted an upsurge in sports-equity complaints. Title IX lawsuits generally have become much more common, Lake said. And this is a time when government investments in higher education are dwindling and colleges and universities are shrinking their budgets and eliminating athletics programs.

These cuts will likely come to the smaller to midsize liberal arts colleges, which have struggled financially, Lake said.

“There will almost certainly be equity issues involved, the same kind that we went through with an expansion in college sports, and I think we’ll see in certain areas things pull back,” Lake said.

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