Source: http://sports.espn.go.com/espn/commentary/news/story?page=easterbrook/100727; Case ruling: http://courtweb.pamd.uscourts.gov/courtwebsearch/ctxc/KX330R32.pdf
When the United States District Court (Connecticut) published its recent verdict on the University’s sports plans, commentators predictably rose up in arms against it. This post attempts to analyse the judgement and to put forward an alternative view about how the District Court got the decision right, despite the implications for women’s sport.
The lawsuit concerned Quinnipiac University’s plans to cut three of its sports teams (women’s volleyball, men’s golf and men’s outdoor track) and to create a new varsity sport of ‘competitive’ cheerleading for their 2009-10 season. Five of the women’s volleyball players and their coach brought this lawsuit alleging the decision to eliminate the volleyball team violates their Title IX rights.
Title IX essentially prohibits sex discrimination by governing equal athletic opportunities for men and women in education. Based on whether an athlete is offered a genuine opportunity to participate in a varsity sport, the test is assessed in two parts .
Part one is based on the factors contained in a 2008 Office of Civil Rights (OCR) letter:
- Whether the sport is recognised by the National Collegiate Athletic Association (NCAA) as a ‘legitimate’ sport
- Even if an athlete participates on a varsity team, whether their experience is on a par with the experience of other varsity athletes.
Part two then involves a comparison of the % of athletic opportunities provided to women, as against a % of women enrolled as undergraduates at the University.
The Claimant’s case
The claimants argued that the university had calculated both the men’s and women’s varsity rosters incorrectly. Therefore while the university’s figures had demonstrated parity between the sexes, thereby providing a justification of the cuts to the women’s volleyball team, the claimants argued the figures had been artificially massaged and the cuts to the volleyball team infringed their Title IX rights.
The claimants sought to attack these figures from two directions:
- Increasing the size of the men’s varsity participation figures
- Reducing the size of the women’s figures (primarily by attacking the figures for cheerleading and athletics)
Although there was some debate over how the varsity rosters were calculated, the claimants ultimately only succeeded in adding one player to the men’s calculations, as the Court held that there were legitimate reasons for the other alterations during the season. The Court did however note that the men’s teams seemed quite small compared to the National average squad sizes, while there was evidence to suggest that the equivalent women’s teams were inflated as against the National average squads. Although the Court suggested that the higher number of female athletes on the varsity rosters were only to boost the statistics and therefore didn’t represent genuine athletic opportunities for the girls, this argument was not supported by any evidence of female athletes quitting or being cut from the team partway through the season.
Ultimately the Court held that while Cross-country, indoor track and outdoor track were separate sports, for the purposes of the Quinnipiac University calculation, athletes on these teams should only be counted once rather than three times. The claimants argued that, in effect, as it was compulsory for female athletes to engage in all three sports and scholarships were not extended to runners who only competed in single events, female athletes were not receiving genuine athletic opportunities comparable to other varsity teams .
That said, the Court did suggest that the fact that:
- the indoor and outdoor track teams were unable to host home meets due to a lack of facilities
- the coaching structure was split over four teams (unique amongst the Quinnipiac university program)
- and the indoor and outdoor track teams did not recruit field event participants and therefore cannot be as competitive in teams events as other varsity teams
Were only factors to be considered rather than automatic presumptions against full varsity status. As many of the athletes might have competed on all three teams voluntarily, the Court only subtracted 11 cross country runners from the University total.
The debate over whether ‘competitive’ cheerleading is a varsity sport is much more interesting (and controversial) –
While traditional ‘sideline’ cheerleading focuses on raising spirit by entertaining audiences at games through the use of pom-poms and other apparatus, ‘competitive’ cheer is a more athletic activity that focuses on the gymnastic elements of the discipline. The university’s decision to create a varsity ‘competitive’ cheerleading team that only focuses on the competitive elements rather than to engage in ‘sideline’ activities is to be applauded on one level as providing physical opportunities for women.
The problem that many external commentators seem to be confusing is that Title IX only governs varsity athletic participation opportunities. The fact that a university provides genuine and meaningful opportunities for participation in club and intramural teams and activities is therefore irrelevant to a university’s Title IX obligations.
Cheerleading (in any form) is not recognised as a sport by the NCAA. Indeed, the comments by Jeff Webb (President of Varsity Brands, Inc – an athletic equipment manufacturer) in his testimony at the trial that he started the Universal Cheerleaders Association (UCA) in order to use ‘sideline’ cheerleading competitions as a publicity vehicle to promote and sell his Varsity brand , and that the scoring system of the National Cheerleading Association (NCA), which he later set-up to cater for colleges and universities, was intertwined with the promotion of Varsity Brands , has massively undermined the credibility of cheerleading as a sport.
Webb did also testify that he was not averse to competitive cheerleading eventually becoming a sport, and that he was also instrumental in creating USA Federation for Sport and Cheer (“USA Cheer”) as a governing body for American sideline cheer in case it did become recognised as a sport. However surely a sport is more than just the activity itself, but rather encompasses all the other ‘non-athletic’ rules, structures and governance that underpins it.
The Office of Civil Rights (that enforces Title IX) seems to agree and interprets what they class as a sport on a number of factors namely:
- its athletic elements
- the competition it fostered
- and how the experience of participating on a team compared to other varsity sports teams .
In 2008, they stated in a letter that cheerleading was not a sport and therefore its athletes cannot be counted under Title IX. Given this, Quinnipiac University’s decision to include its cheerleading squad as a full varsity team despite the OCR letter must therefore be seen as either an overly ambitious vote of confidence in their athletes or a cynical attempt to massage its varsity figures.
The District Court found at  that:
- the purpose of the squad (to compete rather than to entertain) was consistent with other varsity teams, and that the squad members (and indeed the Court at ) viewed the cheer squad as competitive athletes
- The team followed the applicable NCAA rules as applied to other varsity sports, for example concerning funding, coaching structure, medical clearance, training practices, access to facilities and support staff
The barriers to ‘competitive’ cheerleading being recognised were more administrative and related to the governance of the sport:
- The head coach of the Quinnipiac Cheerleading programme was not qualified under NCAA and NEC rules to recruit any athletes off campus (she later passed these exams in the Spring of 2010).
- The cheerleaders had to buy their own catastrophic insurance policy as the activity was not covered under the NCAA insurance program, similarly the cheerleaders did not receive locker space like the other varsity athletes (although the court did note that these were only minor factors).
The main problem however related to the competitive structure of the activity. Although in September 2009 Quinnipiac helped to establish the National Competitive Stunt and Tumbling Association (NCSTA) with seven other universities, that either fielded teams or were planning to sponsor varsity squads, the NCSTA was only a loosely defined unincorporated association with no clear governance, structures, strategy or progressive system of competitions (with sanctions to enforce these rules).
Indeed, over the course of the 2009-10 season, Quinnipiac competed against 5 other ‘competitive’ cheer squads (including 1 ‘all-star’ team from a private gym unaffiliated to any school), 3 ‘sideline’ cheer teams (including 1 ‘ high-school’ team) and used 6 different scoring systems! In comparison, no other varsity sport was subject to multiple governing bodies or judging rules.
The Court sums this up in the following phrases: “If Quinnipiac is serious that its competitive cheer team is a legitimate varsity sport, then it should not tolerate its team playing against non-varsity collegiate teams, non-scholastic all-star teams, and, especially, athletes who are still in high school.” 
“In reaching my conclusion, I also do not mean to belittle competitive cheer as an athletic endeavor. Competitive cheerleading is a difficult, physical task that requires strength, agility, and grace. I have little doubt that at some point in the near future – once competitive cheer is better organized and defined, and surely in the event that the NCAA recognizes the activity as an emerging sport – competitive cheer will be acknowledged as a bona fide sporting activity by academic institutions, the public, and the law. As the evidence in this case demonstrates, however, that time has not yet arrived.” 
Despite media hype to the contrary, the cheerleaders were NOT dismissed as athletes, rather they were let down by the governance structures that were supposed to support them. If cheerleading is serious about becoming recognised as a sport, as it was in Noffke v. Bakke, then it is this aspect that needs to be addressed and quickly.
Quite correctly, the court subtracted the 30 cheerleaders from the University’s varsity totals.
- 274 female (subtraction of 11 cross-country runners and 30 cheerleaders) = 233
- 166 male (plus one extra ice hockey player) = 167
233/400 = 58.25% compared to 61.87% of female undergraduates
This difference of 3.62% represents a shortfall of 38 athletes which is a varsity team.
Ultimately then it was somewhat of a pyrrhic victory for the women’s volleyball team. The court ordered the university to restore sponsorship of the women’s volleyball for 2010-11 season, thereby bringing the university back into compliance, however it only has to do this for one year, if after that season if it can demonstrate compliance with Title IX in any other way.