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Whether an educational institution has complied with Title IX by providing substantially proportionate athletic participation opportunities for its female students is determined by a two-part test. The first step involves determining which of the University's putative varsity athletic participation opportunities should be counted for Title IX purposes. Whether an athletic participation opportunity will be counted depends on whether it affords an athlete a genuine opportunity to participate in a varsity sport. To be a genuine participation opportunity, an athlete must participate in a legitimate "sport," which is assessed by considering the set of factors set forth in the 2008 OCR Letter. Thus, whether an athlete counts will hinge not only on whether he or she is on a roster list, practiced with a team, or competed in games over the course of the academic year; it will also be decided by examining the totality of the circumstances surrounding his or her participation. Once all of the genuine athletic participation opportunities are counted, the second step of the test is to compare the percentage of athletic participation opportunities provided to women to the percentage of women enrolled as undergraduates. Whether there is a substantial proportionality between the educational institution’s female athletes and female students will depend not just on a statistical figure but also on other facts specific to the university, such as whether any shortage in female athletes is large enough to sustain an independent women's varsity team that the university is not presently sponsoring.
Quinnipiac University is a private, coeducational institution located in Hamden, Connecticut. Quinnipiac is a member of the National Collegiate Athletic Association ("NCAA"), and is a Division I school, which means that it belongs to the NCAA's most competitive athletic division. In March 2009, the defendant, Quinnipiac University, announced plans to cut three of its sports teams: the women's volleyball team, the men's golf team, and the men's outdoor track team. Contemporaneously, the University pledged to create a new varsity sport, competitive cheerleading, for the 2009-10 season. Plaintiffs Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker are five current Quinnipiac women's varsity volleyball players, and plaintiff Robin Lamott Sparks is their coach. Together, they allege that Quinnipiac's decision to eliminate its volleyball team violates Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681, et seq.) and the regulations adopted pursuant thereto. Further, Quinnipiac’s practice of setting roster targets allegedly results in a Title IX violation in two ways. First, the University may have manipulated its roster sizes by misidentifying student athletes, specifically, by erroneously discounting individual athletes from men's teams and adding individual athletes to women's teams. In other words, the plaintiffs claim that Quinnipiac's varsity teams were not actually complying with the roster targets the University assigned, and the actual number of athletes was not captured by the roster target totals. And, second, the University may have set artificially low roster numbers for its men's teams and high numbers for its women's teams, thus creating de facto ceilings and floors for squads on the basis of sex, which had the effect of denying genuine athletic participation opportunities to some women athletes.
Applying the two-part test of the OCR, is Quinnipiac in compliance with Title IX?
Quinnipiac's roster count shows that 274 female athletes and 166 male athletes were on their teams on the first day of competition. Forty-one female athletes must be removed from Quinnipiac's count, which leaves 233 female athletes; the total male athletes must be increased by one, to 167, due to the men's ice hockey addition identified by Flynn. That completes the first step of the OCR analysis. The second and final step is to compare the proportion of women in Quinnipiac's varsity athletics program to the proportion of women in the University's undergraduate population. The University's enrollment data show that in 2009-10, 61.87 percent of Quinnipiac's undergraduates were women. Under the Title IX count, however, 58.25 percent-- 233 female athletes out of 400 total athletes -- of Quinnipiac's varsity athletes were female. That results in a 3.62 percent disparity. A 3.62 percent difference represents, in strictly numerical terms, a borderline case of disproportionate athletic opportunities for women. OCR has not established a threshold statistical figure for determining whether a school offers participation opportunities substantially proportional to its enrollment, but instead examines each school on a case-by-case basis. 1996 Clarification at 4. Courts, however, have held that a disparity within two percentage points is proof that an educational institution falls within the substantial proportionality safe harbor. In light of those holdings, a 3.62 percent difference is, by itself, a relatively thin basis for finding that Quinnipiac was out of compliance during the 2009-10 academic year. OCR was clear in its 1996 Clarification, however, that raw numbers are only part of the analysis for whether the participation of women in a school's varsity program is proportional to enrollment. In addition to calculating the disparity, OCR considers other factors designed to give context and meaning to a school's shortfall of athletic opportunities for students of a specific sex. Specifically, OCR considers whether natural fluctuations in enrollment contributed to the lack of proportionality, and whether the absolute number of athletic participation opportunities that need to be created to achieve exact proportionality would be sufficient to sustain a viable athletic team. When those two factors are considered, the 3.62 percent difference indicates that Quinnipiac was not in compliance with Title IX.
First, there is no indication that the disparity is attributable to a surge of women enrolling at Quinnipiac. Rather, the 2009-10 undergraduate enrollment was consistent with the University's expectations. Furthermore, the disparity cannot be attributed to any unanticipated drop in female athletic participation or spike in male athletic participation. Quinnipiac carefully selected its teams' roster targets, and the evidence showed that the University took meticulous steps to ensure that its roster targets were met over the course of the year. There were, therefore, no natural fluctuations in Quinnipiac's enrollment or varsity program that would explain the disparity.
Next, the 3.62 percent disparity represents a shortfall of approximately 38 female athletes. Thirty-eight additional athletes would almost certainly be enough to sustain a new, independent varsity team. There are at least three bases for reaching that conclusion. First, in 2009-10, the biggest Quinnipiac women's teams were the indoor and outdoor track teams, which each listed 30 runners on their rosters -- a total that, as explained above, is inflated, but which I will treat as valid for the purpose of conducting this part of the analysis. Based on Quinnipiac's 2009-10 roster targets, the mean size for Quinnipiac's women's teams was 22 members, and the median team size was 24 members. Therefore, it would appear that the additional 38 athletes would certainly be enough to support an additional varsity team, especially when one considers that Quinnipiac's women's rosters tended to be bigger than the national and conference averages. The second reason it can be assured that the 3.62 percent disparity represents enough players to sustain an independent team can be found in the (unsuccessful) actions Quinnipiac took to comply with Title IX. Quinnipiac attempted to meet its Title IX obligations by creating a new sports team, competitive cheer, with 30 participants (which will be increased to 36 participants for the 2010-11 season). Thus, the University's own conduct shows that another viable sports team could be created with the 38 potential athletes who are currently not being offered athletic participation opportunities.
Finally, the University's plans for the 2010-11 year show that 38 female athletes would be sufficient to sustain an independent varsity squad. For this coming year, Quinnipiac plans to eliminate the women's volleyball team and thus subtract its 12 players from 2009-10; add six players to its competitive cheer team; add six cross-country runners; and add five runners to its indoor and outdoor track teams. Assuming that the six competitive cheer players will not be counted because competitive cheer is not a Title IX sport and that, at a minimum, the 16 newly added roster spots for female runners will produce 12 athletes countable under Title IX -- in other words, assuming that there remains a disparity of 38 female athletes in 2010-11 -- it is certain that an independent sports team could be created from the shortfall of participation opportunities. That independent sports team would be the eliminated women's volleyball squad, a team that, based on Quinnipiac's 2010-11 roster target, requires a mere 14 players to compete.
Application of OCR's 1996 Clarification shows that the 3.62 percent disparity is enough to prove that Quinnipiac has not achieved substantial proportionality and does not fall within the 1979 Policy Interpretation's first safe harbor for Title IX compliance. Although a 3.62 percent is not an overwhelming disparity, it is sufficient to show an absence of substantial proportionality on the facts of this case. The disparity reflects Quinnipiac's deliberate planning and not other external events beyond the University's control, and the number of potential female athletes reflected by that disparity would be more than enough to sustain an additional varsity athletic team. I therefore conclude that, during the 2009-10 school year, Quinnipiac did not offer athletic participation opportunities for women that were substantially proportional to the University's female enrollment. The University was close to achieving that degree of proportionality. Its decision to gamble on its competitive cheer team being found to be a Title IX sport, and on all of its indoor and outdoor track runners countable under Title IX, however, deprived Quinnipiac of just enough female athletes to meet OCR's first prong for Title IX compliance. Therefore, as a matter of law, Quinnipiac violated Title IX during the 2009-10 academic year by failing to offer equal athletic participation opportunities to its female students.