Amid allegations from the Women’s Law Project that Lock Haven University of Pennsylvania treats its female athletes as “second-class citizens,” eight female athletes from the university are suing Lock Haven in what they characterize as a class action suit, alleging violations of Title IX by unequal treatment of female athletes. The 4220-member student body is 59% female, and the university currently fields a total of sixteen Division I and II sports teams, nine women’s sports teams and seven men’s teams.
Title IX of the Education Amendments of 1972 protects against discrimination “on the basis of sex” in educational institutions that receive federal funding, which is virtually all institutions of higher education in the United States. Title IX was originally enacted to increase participation of women in academic fields typically dominated by men, such as science, mathematics, and engineering; but the statute has also evolved to ensure equal participation opportunities, scholarships, and treatment for women in athletics.
The lawsuit, Emily Robb v. Lock Haven University of Pennsylvania, filed in the U.S. District Court for the Middle District of Pennsylvania on June 5, 2017, alleges that Lock Haven has been discriminating against women’s athletic teams for years by inflating team rosters with names of students not on the teams, providing locker room facilities inferior to the men’s, maintaining a higher student-to-coach ratio for female teams than for men’s teams, and fewer staff members for publicity and fund-raising for the women’s teams. The students bringing the suit, six members of the women’s field hockey team and two female swimmers, seek a temporary restraining order and a preliminary injunction to halt what they allege is the unequal treatment.
In March 2017, Lock Haven, one of the fourteen State System of Higher Education universities, announced severe budget challenges that threatened elimination of three sports teams, men’s indoor and outdoor track and women’s swimming, for a calculated savings of $320,000 annually.
Lock Haven does not have self-sustaining athletic teams; teams are funded by student fees and money the coaches raise. In addition, according to PennLive, universities in the State System are now receiving the same amount of money from the state as they did in 1999.
The proposed team eliminations would have affected two coaches and twenty male students, as well as twenty-two female swimmers. However, the announcement allegedly drove away swim team recruits and caused several swimmers to leave Lock Haven. The university was ultimately able to retain the women’s swim team, although the students allege that their full-time coach was replaced with a part-time coach and their schedule of meets was reduced for next year. The university has disputed this.
The women athletes’ concerns have only recently come to a head with the threatened elimination of the women’s swim team, but the charges of inequity in the university’s athletic programs date back several years. On September 12, 2014, Lock Haven President Michael Fiorentino, Jr. agreed to a Voluntary Resolution Agreement with the U.S. Department of Education’s Office for Civil Rights (OCR) to resolve a complaint made to OCR that Lock Haven discriminated against women athletes in violation of Title IX because the university failed “to accommodate the interests and abilities of female athletes.”
OCR administratively enforces Title IX and seeks to elicit remediation of violations through Voluntary Resolution Agreements with educational institutions. On September 26, 2014 OCR laid out the Action Items and Reporting Requirements that would be part of Lock Haven’s Resolution Agreement.
In order to achieve compliance with Title IX, OCR required that Lock Haven document
“that the interests and abilities of students who are members of the underrepresented sex” were being accommodated. OCR allows colleges and universities to accomplish this documentation by self-selecting one part of OCR’s “Three-Part Test” for compliance with Title IX. Lock Haven chose Part Three of the Three-Part test, as described in the Dear Colleague Letter of April 20, 2010, the Intercollegiate Athletics Policy Clarification: The Three-Part Test, Part Three. OCR allows that each part of the test can be used separately and independently to demonstrate an institution’s compliance. Under the Part Three provision selected by Lock Haven, the university was required to demonstrate that male and female opportunities for participation in intercollegiate sports were “substantially proportionate to their respective enrollments.”
OCR’s Action Items and Reporting Requirements included, among other duties, that Lock Haven devise and report the results of a survey to ascertain the interest of female students in different intercollegiate sports teams, follow-up and analyze the survey results, compare athletic opportunities for females at comparable institutions, and report rates of participation of female athletes in teams at Lock Haven compared with other similar institutions.
Lock Haven was to complete these tasks by May 15, 2015, supply interim reports during 2015-2016, institute a squad size policy providing for increased women’s participation in intercollegiate sports teams, and, if additional teams were needed, to have the coaches and players trained and ready to commence competition in those additional teams no later than the 2016-2017 academic year.
OCR has not yet published its final report in Lock Haven’s case, but the women athletes contend that the university has not complied with the Resolution Agreement. The charge of inflated team rosters, if true, will go to the heart of whether Lock Haven has complied. The students also contend that Lock Haven has de facto eliminated the swim team by appointing a part-time coach, but the university insists that the coach will be paid a full-time salary and the number of meets will not change.
The Women’s Law Project and a private firm will be representing the students. The Middle District Court will have its hands full reviewing the OCR reports and the depositions of the students, coaches, university administrators and, perhaps, even members of the Board of Trustees and the institution’s financial staff.
If you have any questions on this topic, please consult your legal counsel, or one of the Education Law Practice Group attorneys at KingSpry.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.