Did Fresno State violate Title IX again? Members of this Bulldogs team say it did
An attorney representing members of the Fresno State women’s lacrosse team has sent a letter to university president Joseph Castro claiming that the elimination of the program is a “blatant violation of Title IX” and threatening legal action if it is not reinstated.
“The law is crystal clear in this area,” said Arthur H. Bryant, of Bailey & Glasser in Oakland. “There is a three-part test to comply with Title IX in terms of opportunities to participate. You only have to meet one part. The second and third parts cannot be met if you’re eliminating an active women’s team so it ends up all coming down to the first part, which is, are your opportunities to participate substantially proportionate to undergraduate enrollment rates?
“The measure is not the percentage, but the gap between what your current numbers are and what it would take to reach total equality and if that gap is big enough to fit a team for which there’s interest and ability and competition available, then you’re in violation.
“The Office for Civil Rights adopted that a long time ago. The courts have agreed with that and adopted that and that’s the law.”
Bryant was the lead trial counsel in the first Title IX case tried against a university for discriminating against its women athletes when with Trial Lawyers for Public Justice in Washington, D.C., representing plaintiffs in the precedent-setting Haffer vs. Temple University in 1982. He also represented plaintiffs in Cohen vs. Brown University in 1998, and in September, more than 20 years after a consent agreement, a second settlement was reached after the university announced it was eliminating 11 sports programs including five for women.
Brown agreed to maintain a specific proportion of athletic opportunities for women, and reinstated two of the women’s programs it was dropping.
Fresno State’s response to letter
Fresno State had not responded to the letter as of Friday morning, Arthur said, but it released a statement through a university spokesperson.
“As announced in October, varsity lacrosse was one of three sport teams that, unfortunately, will be discontinued in addition to men’s tennis and wrestling at the conclusion of the 2020-21 academic year. This difficult decision was based upon the significant budgetary impacts facing the Fresno State athletic department as their operating revenues have declined by over $9 million as a direct result of the COVID-19 pandemic, which is resulting in a $5.1 million projected operating deficit this fiscal year. These sport team reductions will generate an annual budget savings of approximately $2.5 million, once all scholarships and other contractual obligations have been fulfilled.
“Title IX proportionality was among the top factors considered when we evaluated the difficult choices that had to be made regarding our athletics program. The university will ensure its commitment to gender equity and investment in our 12 remaining women’s sports programs as we continue to sponsor 18 NCAA Division I sports (six men’s sports and 12 women’s sports), serving and supporting approximately 430 student-athletes.
“As we review the letter received (Thursday), we want to reaffirm our steadfast commitment to gender equity throughout our stellar athletics program.”
In the letter to Castro, Bryant wrote, “educational institutions receiving federal funds cannot eliminate women’s teams for which interest, ability, and competition are available unless ‘intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.’”
And, utilizing data submitted annually to the U.S. Department of Education, “In the 2018-19 academic year, the school had an undergraduate population of 11,518 women and 7,828 men. So undergraduate enrollment was 59.54% women. The school’s intercollegiate athletic teams that academic year had 256 men and 323 women, or 55.79% women – creating a 3.75% gap between the women’s undergraduate enrollment rate and their intercollegiate athletic participation rate.”
“With the elimination of the teams announced on Oct. 16, 2020, the school’s athletic participation numbers drop to approximately 221 men and 295 women, or 57.17% women – which still leaves a 2.37% gap. Therefore, even with the announced team eliminations, Fresno State would still need to add approximately 30 women to reach gender equity under Title IX. This is almost exactly the number of women on the lacrosse team that the school is eliminating.
“Based on these facts, unless Fresno State agrees to reinstate the women’s lacrosse team or has some plans for compliance with Title IX we do not yet know, we will seek a preliminary injunction immediately reinstating and preserving the team.”
Financial crunch led to elimination of sports
Fresno State, which has a history of Title IX investigations dating to the 1990s and has settled several lawsuits with former athletics department administrators and coaches, dropped women’s lacrosse in October along with wrestling and men’s tennis as it dealt with a financal crisis.
Cutting women’s lacrosse saved $1,086,505 according to the most-recent total operating expenses report.
Travel was a big cost. The Bulldogs had no conference affiliation after the Mountain Pacific Sports Federation dropped women’s lacrosse following the 2019-20 season. The Mountain West Conference does not sponsor the sport.
With so few schools west of the Rocky Mountains fielding women’s lacrosse programs, Fresno State in 2018-19 invested $147,428 to play just nine road or neutral site women’s lacrosse matches, according to its NCAA revenues and expenses report.
The cost of team travel for women’s volleyball was $148,816 for 18 matches. It was $152,422 for 11 women’s soccer matches, and $185,581 for 29 softball games.
Women’s water polo, which was added along with wrestling, played 29 matches in 2019 and all but four were in California. It spent $77,209 on travel.
Fresno State also spent $36,669 on lacrosse recruiting in 2018-19 compared to $9,647 for soccer, $13,429 for softball, $16,363 for water polo, $19,643 for swimming and diving and $34,384 for volleyball, all with comparable roster sizes or scholarship limits.
The only women’s sport that put more into recruiting is basketball.
This story was originally published December 5, 2020 at 9:00 AM.