By Julia M. Klein
Friday, November 21, 2003
A female gymnastics team in Pennsylvania was reinstated by a preliminary court injunction. The ruling reinforces the rules universities must follow to avoid discriminating against their female athletes.
PHILADELPHIA (WOMENSENEWS)--A federal judge has ordered West Chester University to reinstate its varsity women's gymnastics team, giving a boost to advocates of greater female participation in intercollegiate athletics.
Attorneys for both sides said that U.S. District Court Judge R. Barclay Surrick's 31-page ruling in Barrett v. West ChesterUniversity, granting the gymnasts' request for a preliminary injunction, was important foraffirming the right of private parties,including athletes, to sue under Title IX of the Education Amendments of 1972.
Title IX bans gender discrimination at educational institutions that receive federal funds, and its application to athletic programs has spawned controversy, litigation and a recent presidential commission.
Sharyn Tejani, legal director of the Feminist Majority Foundation, based in Arlington, Va., hailed last week's ruling against West Chester University officials as evidence that discrimination persists three decades after the law was passed. "We're still having the same issues: that women and girls are not being given sufficient opportunities," she said.
It was not yet clear whether the university would appeal the injunction, which is issued only when a case has a good chance of succeeding on the merits and when a failure to act could result in "irreparable harm." West Chester University Athletic Director Edward M. Matejkovic said earlier this week that the university had "not made a decision on anything."
Faced with rising costs and a 5 percent cut in state funding, West Chester University officials last April announced the elimination of the women's gymnastics team, a move designed to save about $30,000 annually. At the same time, it also spiked its larger men's lacrosse team and promised to add a women's golf team. Testimony at a four-day hearing this fall made clear that the golf team had yet to attract either members or a coach.
In his decision, Surrick noted that officials at the university, a state school about an hour west of Philadelphia, had ignored warnings by two internal committees that cutting the women's gymnastics team could raise Title IX concerns.
West Chester University "finds itself in a difficult economic situation," the judge wrote. The school "could have heeded the warning of its internal committees and avoided this problem," but instead "intentionally made the decisions that brought them to this courtroom, knowing full well the potential implications."
Title IX has been under attack by critics who claim that enforcement has gone too far, curtailing opportunities for men. One such group, the College Sports Council, based in Washington, is involved in two legal challenges to Title IX regulations.
Larry Joseph, an attorney for the council, said he believed that Surrick may have defined "intentional discrimination" too broadly by suggesting that cutting a woman's team "is essentially intentional discrimination against women." Discrimination has to be "something you do because of someone's gender--not merely in spite of it," Joseph said.
Claudia M. Tesoro, the senior deputy state attorney general who argued the university's case, said that she had "tried to persuade the court that the legal landscape has shifted" since the 2001 Supreme Court decision in Alexander v. Sandoval, a case involving discrimination against non-English-speaking minorities in the administering of driver's license tests.
In Sandoval, the court ruled that private parties could sue only to enforce regulations involving intentional discrimination rather than simply "disparate impact," or discriminatory effects. One issue in the West Chester case was whether the university's actions amounted to intentional discrimination.
"As we argued, if you do something that affects both men and women negatively, how can you say that you are discriminating because of sex?" Tesoro said. "If you start from the premise that there has to be intentional discrimination, does ineptitude or lack of funds or trying hard but not quite getting there amount to intentional discrimination?"
Surrick's ruling reflected "common sense," said Leslie Brueckner, an attorney with the Washington-based Trial Lawyers for Public Justice, the nonprofit advocacy group that brought the case in September on behalf of the gymnastics team.
"The decision confirms that you can't cut a women's team when female athletes are already getting less than their fair share," she said. "The school had claimed that because they cut men's lacrosse at the same time that somehow that meant they weren't violating Title IX, and the court said no. It's a resounding confirmation that universities have a legal obligation to fairly accommodate their women athletes."
"It would have been very significant if Judge Surrick had found in favor of the university," said Sharon McKee, of Hangley Aronchick Segal and Pudlin, local counsel for the gymnasts. "It would have completely changed the landscape of enforcement of Title IX." Such a decision, she said, would have meant that only obvious expressions of bias--such as "a Stone Age administrator [who] said 'I hate women, I'm not going to give them athletic opportunities'" --would have qualified as intentional discrimination.
Attorneys for the gymnasts argued that West Chester had violated all three "prongs" of a policy test for determining Title IX compliance. The courts have determined that a school need satisfy only one of the prongs, which deal with proportional representation, progress against discrimination, and how well an institution accommodates the needs and interests of its students.
West Chester conceded that it did not meet the proportional representation test, since 61 percent of its students--but less than half of participants in varsity sports--are female. But it argued that it has been making substantial progress towards equality. Matejkovic testified that he had instituted a gender-equity plan to ensure that different teams received comparable treatment.
And Madeleine Wing Adler, the university's president, said that West Chester, which fields 12 women's and 11 men's teams, was addressing admitted inequalities in coaching support and pay that currently favor men's athletics.
The plaintiffs stressed that the school had not added a women's varsity team since 1992, when women's soccer was launched.
The third part of the test--whether women were fully and effectively accommodated by the present program--was also a source of contention.
Stephanie Herrmann, West Chester senior and gymnastics team co-captain, voted East Coast Athletic Conference Rookie of the Year her freshman year, said in an interview with Women's eNews that she had turned down offers from three other schools to attend West Chester and compete in gymnastics. But Tesoro said that the team had no competitors within the Pennsylvania State Athletic Conference, had to travel to most of its meets, and was not "viable."
Julia M. Klein is a freelance writer in Philadelphia.
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