News From the Courts

By Staff

Athletic Management, 16.5, August/September 2004, http://www.momentummedia.com/articles/am/am1605/wucourts.htm

A lawsuit challenging the constitutionality of Title IX’s three-prong compliance test took its second step backward in May, when a three-judge U.S. Circuit Court of Appeals upheld a lower court’s decision that dismissed the case. The panel was split 2 to 1.

The case, The National Wrestling Coaches Association (NWCA) v. the United States Department of Education, was filed in Jan. 2002 by the NWCA and other groups that blame the loss of men’s sports programs on Title IX policies. A U.S. District Court initially dismissed the case in June, and the group appealed. Despite the most recent dismissal, NWCA Executive Director Mike Moyer says the group will press forward with the case.

In its suit, the NWCA is asking the Department of Education to throw out the proportionality prong of Title IX’s three-part compliance test. This prong allows schools to prove they obey the law by showing that their ratio of male to female student-athletes matches the male-female ratio of their student body. The NWCA alleges that proportionality amounts to a quota system that forces schools to eliminate men’s programs to balance their participation numbers.

Across the country, individual men’s teams have filed unsuccessful lawsuits against schools that used Title IX to justify their elimination, but the NWCA suit is unique in that it directly names the source of Title IX policies—the U.S. Department of Education. “We’re suing the Department of Education because athletic directors have told us they cut men’s programs to get to proportionality because they believe that is the only way to protect themselves from Title IX lawsuits,” Moyer says. “We believe they are simply doing what the law tells them to do.”

However, both courts have dismissed the case on the grounds that the NWCA lacks standing to sue the government. To achieve standing, the NWCA would have to prove that Title IX is the direct cause of men’s programs being dropped, and the courts have ruled that individual schools’ decisions, not Title IX policies, caused the cuts.

“The courts said that nothing within Title IX forces schools to drop men’s teams in order to comply,” explains Neena Chaudhry, Senior Counsel for the National Women’s Law Center (NWLC). “Individual schools choose to cut men’s programs, but those schools could make other choices. Instead of dropping men’s teams, for example, schools could add more women’s teams, and that would satisfy the law. Therefore, individual schools, not Title IX, should be the targets of any litigation.”

However, the NWCA’s position remains unchanged as it continues to pursue the case. “Proportionality is not an appropriate yardstick to hold athletic departments to,” Moyer says. “No other educational program—dance, theater, drama, the physics department—could survive if it was held to a proportionality standard, so why should athletics be held to that standard?”

Chaudhry calls that argument flawed. “You cannot compare athletics to other programs where spots are open to both genders,” she says. “In athletics, you have sex-segregated teams, so the school has to decide at the outset how many opportunities it’s going to provide to men and how many it’s going to provide to women. Therefore, you need some way to distribute those opportunities fairly. I can’t think of a better, more equitable way than to say, ‘How many men and how many women do we have enrolled?’ and then divide the opportunities accordingly.”

Moyer, however, believes his group does have a better way. “We’re asking the Department of Education to get rid of proportionality and measure interest instead,” he says. “Do surveys and interviews, look at high school participation rates and intramural participation rates, and then divide athletic opportunities according to interest.”

Measuring interest is one way of complying with Title IX, but throwing out proportionality is a dangerous idea, Chaudhry believes, because lack of opportunities in the past can often masquerade as lack of interest now.

“The NWCA says the fact that women are not coming out in larger numbers means they are not interested,” she says. “We say that it reflects the fact that they have not historically been given opportunities. When women were 10 percent of the athletes, people argued that girls and women just didn’t want to play. After Title IX began, women’s participation grew dramatically, but at every step along the way, people have said, ‘That’s it—that’s all the women who are interested.’ The argument was there at 20 percent, and 30 percent, and it’s still there at 40 percent. But as women’s opportunities have grown, women’s participation has grown. If you try to measure interest apart from opportunity, all you end up measuring is the existing discrimination.”

The next step for the NWCA is to ask the entire D.C. Circuit Court to hear the case, hoping that the complete court will overturn the decision of the three-judge panel. The court can choose to hear or not hear the case. After that, Moyer says his group is prepared to take their case to the Supreme Court. However, the Supreme Court would be unlikely to agree to hear the case, Chaudhry says. “The Supreme Court typically gets involved when there has been controversy among the lower courts,” she says. “All the circuit courts have basically said the same thing in this case.”

In other Title IX news, the Supreme Court has agreed to hear a case involving a high school girls’ basketball coach who claims he was fired in retaliation for complaining that his team was not treated as well as the school’s boys’ team.

The plaintiff in the case, Roderick Jackson, was hired as Head Girls’ Basketball Coach at Ensley (Ala.) High School, a part of the Birmingham City School District, in 1999. Jackson says he immediately noticed glaring discrepancies in the treatment of male and female athletes. Girls practiced in an old gym with wooden backboards, bent rims, and no heat, Roderick says, while boys practiced in a new gym. The boys traveled to road games by bus, while the girls had to find their own transportation. And the athletics budget went almost entirely to the boys’ team, which was also allowed to keep gate receipts and concessions profits generated at its games, while the girls received almost no funding and were forced to turn their gate receipts and concessions profits over to the school.

Jackson says he approached the school’s athletic director, who turned a deaf ear, and then worked his way through the Birmingham City School District chain of command without getting any help for his team. What he did get, Jackson alleges, was a backlash of negative performance reviews and eventual dismissal from his coaching job in May 2001. Since his case has received so much publicity, he’s been re-instated as acting head coach, but there is no indication whether his position is permanent.

“Why I was fired is clear cut,” Jackson told the Supreme Court at a June hearing. “I spoke up on an issue that no one was ready to deal with, an unpopular issue, and I got penalized for it … I was labeled as a trouble-maker and for two and one-half years, I was turned down for every coaching position I applied for at other schools … So I went to court to try to get my job back.”

When Jackson first took his case to court, a federal judge ruled that he could not argue his case because Title IX does not specifically prohibit retaliation against those who file complaints. Next, Jackson took his case to the Atlanta-based 11th Circuit Court of Appeals, which upheld the earlier court’s ruling. Now he’ll argue it before the Supreme Court, with the weight of the NWLC behind him. The NWLC signed on to represent Jackson because it believes his case has important implications for future Title IX enforcement.

“Teachers, coaches, students, and others who bring sex discrimination to the attention of school officials must be protected from retaliation … Civil rights are meaningless if individuals can be penalized for trying to enforce them,” wrote Marcia Greenberger, Co-President of the NWLC. The Justice Department agreed, filing a brief urging the Supreme Court to hear the case and reverse the lower courts’ decisions.

“It is incredibly important that the Supreme Court is hearing this case,” says Eric Pearson, Executive Director of the College Sports Council, a group representing coaches from a variety of sports. “Many coaches tell us that they don’t even want to go on the record talking about Title IX violations because they are afraid it will jeopardize their relationship with their athletic director. Other coaches have told us that they’ve approached an athletic director with a Title IX issue and been discouraged from taking their complaint any further. The retaliation can be very subtle—just the loss of a few recruiting trips, for example. But that can be devastating for a program.

“If the Supreme Court reverses the decision, coaches will know they have protection under the law if they do complain,” Pearson adds. “If the decision stands, coaches will be even more afraid of standing up for their student-athletes. And often, coaches are the only advocates athletes have.”

Oral arguments in the Jackson case will take place in November or December. A decision could come as early as January 2005, but may be handed down as late as June 2005.