Recent Cases Address New Issues

By Staff

Athletic Management, 15.5, August/September 2003, http://www.momentummedia.com/articles/am/am1505/wunewissues.htm

On July 11, the Bush administration made its long-awaited decision on the future of Title IX. It stated it will make no changes to the current enforcement of the law, but that cutting men’s teams should not be seen as a solution.

While the yearlong Title IX review process was taking place, student-athletes continued to challenge, in court, schools that they claim are in violation of the law. Interestingly, three of the most recent lawsuits deal with disputes unrelated to proportionality issues.

In March, former Sacred Heart University women’s basketball player Tara Brady filed suit against the school and her former coach for discrimination based on her pregnancy. According to a brief filed by the Women’s Law Project, the sophomore center was dismissed from the team in June 2001 after notifying coach Ed Swanson that she was pregnant. Instead of applying for a medical redshirt season, as allowed in NCAA regulations, the school revoked Brady’s scholarship.

Although no longer enrolled in school, Brady remained in Connecticut for the fall semester and maintained contact with members of the team. In December, after watching an HBO special about the rights of pregnant athletes, Brady appealed her dismissal to the athletic director and NCAA compliance officer, who reinstated her scholarship. But after Brady gave birth and returned to the team in February 2002, her coach refused to talk with her and the department chose not to renew her scholarship for the following year. Again, Brady appealed, and again her scholarship was renewed.

Faced with the prospect of playing under a coach who would only speak with her through an intermediary, Brady transferred to Division II West Chester University, where she is currently a part-time student, and filed suit against Sacred Heart.

Carol Tracy, Executive Director of the Women’s Law Project, argues that Brady’s dismissal is a clear violation of Title IX, which states an educational institution “shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy.”

“The school should have medically redshirted her, allowed her to keep her benefits, and let her resume play the following year, just as it would have if a male basketball player had broken his leg,” says Tracy. “Athletic directors need to know that pregnancy discrimination is a form of sex discrimination covered by Title IX.”

In addition to charging Sacred Heart with depriving Brady of educational and professional opportunities, the suit also charges Swanson with inflicting severe emotional distress by interfering with her scholarship and her relationship with the university.

In a one-paragraph statement issued in March, Sacred Heart says that it “did not discriminate against Ms. Brady,” who “withdrew from Sacred Heart University voluntarily, even though at the time of her notice of withdrawal she had been granted a full athletic scholarship for the upcoming 2002-03 academic year.” The university is expected to file its legal response to the suit within the next few months.

At Washington-Lee High School in Arlington, Va., an out-of-court settlement was reached earlier this year between the Arlington County School Board and the National Women’s Law Center (NWLC), which represented senior Christine Boehm, a four-year member of the school’s field hockey team.

The complaint began in the fall of 2001, when Boehm first noticed disparities between boys’ and girls’ sports. The football team changed in a locker room complete with large lockers, showers, and a television; the field hockey team changed in a bathroom. The football team played in new uniforms with new equipment; the field hockey team was given tape to keep team numbers on its faded T-shirts and repair its broken goals. The football team played on a well-maintained field with ample seating and amenities; the field hockey team played on a field Boehm describes as being in “horrible shape.”

After bringing her concerns to the school administration to no avail, Boehm contacted the NWLC, which investigated and found additional disparities to add to the complaint. The baseball team had a dugout, a press box, and a well-maintained field; the softball team had a chain link fence and a rusty backstop. There were problems off the field as well: School sports schedules and trophy cases featured boys’ sports more prominently than girls’ sports.

“The situation at Washington-Lee illustrates how far we still have to go to make sure that girls and women are treated equally in sports programs,” says Neena Chaudhry, Senior Counsel for the NWLC.

The NWLC followed up on Boehm’s complaint with a letter to Washington-Lee. The school responded that although the school’s facilities were imperfect, they were “equally un-ideal for everyone.” Not satisfied, Boehm’s lawyers continued to pursue the case, drafting a settlement over the next few months and reaching an agreement in January 2003.

The school has agreed to create a girls’ locker room, install a permanent scoreboard and dugout on the softball field, and rearrange the trophy case to equally display boys’ and girls’ sports. The school will also continue to work with the NWLC to monitor compliance to the settlement.

“This was a fairly quick resolution,” says Chaudhry. “But schools should be doing this themselves. They should be monitoring their own programs, making sure they comply with the law, and making sure they’re treating male and female athletes equally and fairly.”

In other developments, a group of female student-athletes at Colby College announced plans in May to file a Title IX suit against their school. The group, which includes multi-sport athletes in basketball, field hockey, ice hockey, and softball, argues that Colby discriminated against them when it assigned head coaching responsibilities for more than one team to two of its female coaches. In response, Athletic Director Marcella Zalot contends that Colby’s male coaches are also required to perform dual roles within the department.

Also, a much-awaited decision by U.S. District Court Judge Emmet G. Sullivan dismissed in mid-June a suit brought against the Department of Education by the National Wrestling Coaches Association (NWCA). The 18-month old case claimed Title IX was to blame for the elimination of 355 men’s college athletic teams over the past 10 years.

The court ruled that the NWCA failed to prove that the schools cut the programs in order to comply with Title IX’s proportionality test, saying the schools could defend the cuts for numerous other reasons. The association should sue individual schools, not the federal government, Sullivan said. The NWCA has said it will appeal the decision.