Fresno State slow to respond to threat of Title IX lawsuit, attorney says. He forges ahead

In a letter sent last week to Fresno State president Dr. Joseph I. Castro outlining potential Title IX violations associated with the elimination of women’s lacrosse and threatening legal action if the program is not restored, attorney Arthur H. Bryant requested a meeting or some response no later than Monday.

There was nothing from Castro or university legal counsel. A Fresno State spokesperson said late Tuesday afternoon that the university’s counsel will provide a response within the next few days, and notified Bryant via email.

“They apparently want to be sued,” Bryant said earlier Tuesday. “I’ve asked them specifically for the information that they say keeps them in compliance and if they don’t want to provide it I have no choice but to go sue. I guess that’s what we’ll do.”

Bryant said his firm, Bailey & Glasser of Oakland, is preparing its suit and though there is not a timeline or specific date to file they are moving forward. A second letter to Castro on Tuesday afternoon affirmed their intentions:

“Your office confirmed you received my letter and a Dec. 5, 2020, article in The Fresno Bee entitled ‘Did Fresno State violate Title IX again? Members of this Bulldogs team say it did,’ reported that the school had ‘released a statement through a university spokesperson’ in response to it,” Bryant wrote. “According to the article, the statement says, ‘As we review the letter received (Thursday), we want to reaffirm our steadfast commitment to gender equity throughout our stellar athletics program.’

“Sadly, these appear to be empty words. As my letter shows, the elimination of the women’s lacrosse team is a flagrant violation of Title IX that clearly deprives the school’s student-athletes of gender equity. But the school would apparently rather be sued than talk to us about it. We take that as a sign that we should move forward with litigation. So we are preparing our papers for court.”

Bryant contends that with the elimination of women’s lacrosse the university is not providing equal opportunity to its female student-athletes based on its undergraduate enrollment. The program was dropped in October along with wrestling and men’s tennis in a cost-cutting move amid a sharp decline in athletics revenue due to the coronavirus pandemic.

In the 2018-19 academic year, Fresno State had an enrollment that was 59.4% women (11,518 women to 7,828 men), according to data submitted to the U.S. Department of Education. With the elimination of three sports, athletics participation numbers drop to about 57.17% women (295 women to 221 men), a 2.37 percentage point gap between athletics and total enrollment.

Fresno State enrollment, athletics participation gap

It would require 30 additional women to reach gender equity under Title IX and that, Bryant said, is almost exactly the number of women on the lacrosse team that the school is eliminating.

“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,” Bryant wrote in the original letter to Castro. “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.”

The attorney representing members of the Bulldogs’ women’s lacrosse team 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. That 1982 case, Haffer vs. Temple University, set precedent.

More recently, in September, Bryant reached a settlement with Brown University in which it agreed to maintain a specific proportion of athletic opportunities for women and reinstate two women’s programs it intended to drop. Bryant represented plaintiffs in the original suit, Cohen vs. Brown University, in 1998.

Brown in May had announced that it was eliminating 11 of its sports program including five for women in an effort to make the Bears more competitive in the Ivy League.