College sports cuts fuel lawsuits claiming schools violate Title IX

“It didn’t make sense to us that there are so many football players but there weren’t nearly as many female athletes,” Ohlensehlen said.

For most of her career, she looked past it, happy to just swim. Then, in August, the school announced it was cutting a slew of sports teams because of a financial crunch caused by the coronavirus pandemic — including the swim and dive team she captained for two years.

So Ohlensehlen did something she never could have dreamed of when she decided, as a 9-year-old in Bettendorf, Iowa, that she wanted to swim for the Hawkeyes. She sued her school.

In the class-action suit, Ohlensehlen and other Iowa athletes accuse the school of failing to provide enough opportunities for female athletes as the law requires. In fact, they claim, Iowa has been violating Title IX for years, favoring male players with scholarships and accommodations despite a federal probe in 2016 into gender discrimination in the athletics department. Iowa also inflated the numbers of some women’s teams, Ohlensehlen and her teammates alleged, to create an appearance of gender equity.

In a statement last year, the university said lawyers for Ohlensehlen and her teammates had “omitted some key facts.” The university was “committed to staying in compliance with Title IX” and had considered gender equity in deciding which sports to eliminate, the statement said.

A judge forced the school to temporarily add the women’s swimming team, granting an injunction she called “extraordinary remedy.” Then, last month, Iowa agreed to permanently reinstate the team. But the suit has continued, with athletes now demanding Iowa add more women’s sports, such as rugby and wrestling, to reach gender equity.

While an outcry has erupted in recent days over wide gaps in the NCAA’s treatment of male and female athletes at its basketball championships, a fight over similar gender disparities in college athletic departments is playing out in courthouses and on campuses across the country.

The Iowa case is one of several high-profile lawsuits filed in the wake of cuts to college sports programs across the country, many supposedly fueled by the coronavirus pandemic. Some are ongoing; others have already forced colleges to reverse course. However they are resolved, the cases have exposed ways in which colleges across the country have for years gamed, and potentially even violated, gender equity laws.

“It’s like [the lawsuits] have lifted up the rock in athletic departments and within university administrations,” said Karen Hartman, a Title IX expert and associate professor at Idaho State University. “Now they have to deal with what they’ve been finding underneath.”

A numbers game

The shutdown of college sports last spring caused a financial crunch in many athletic departments, which are reliant on football and basketball for much of their revenue. With March Madness canceled, and with schools facing the possibility of a canceled football season, athletic directors were forced to cut costs. Some chose to cut entire sports.

Few Division I schools looked to cut football teams, which often cost as much money as they bring in. Instead, athletic directors focused on smaller sports. Though many cut only men’s sports, others included a smaller number of women’s teams in their cuts, opening themselves to claims they’re skirting Title IX.

Passed in 1972, Title IX requires colleges to provide equitable opportunities to men and women in sports. But it gives schools wide leeway in how to accomplish that. Schools can comply simply by showing that they are expanding opportunities for the underrepresented gender or that they’ve already met the demand for sports on campus.

Once a school cuts sports, though, it needs to show it is offering actual gender equity in roster spots, experts say. A campus that is 55 percent female, in other words, must give around 55 percent of its roster spots to women. Scholarship money and athletic spending must be close to equal, too.

“The problem they encounter, inevitably, is that these schools are already not complying with Title IX,” said Andrew Zimbalist, a professor of economics at Smith College who focuses on sports. “And so they cut one women’s sport, they get a Title IX suit.”

Athletes at Michigan State and California State University at Fresno also sued this year over cuts to women’s sports programs. Many other universities have been forced to quickly reinstate women’s sports teams after athletes threatened to sue.

In September, William & Mary announced it was cutting three women’s teams and four men’s teams. But it quickly reversed that decision, reinstating the women’s teams under threat of a Title IX lawsuit. The school also said it would review its gender equity practices.

After Dartmouth cut five sports last year, members of the women’s swimming and diving and golf teams threatened a Title IX suit. The school reinstated the sports, and the school’s athletic director resigned.

Experts expect more lawsuits as colleges, still under financial pressure, continue to cut sports. Last week, student athletes at Clemson University threatened two separate suits over cuts to both men’s and women’s teams.

Champion Women, a nonprofit advocacy group, has helped organize many of the lawsuits, hosting calls with teams in the wake of cuts to educate them about Title IX. The group’s data shows the gender gap in college sports has been growing over the past 15 years, said Nancy Hogshead-Makar, the CEO. But with very little enforcement from the federal government or the NCAA, she said, colleges “were counting on nobody paying attention.”

In court documents, universities have said their own numbers tell a different story. Plaintiffs in Title IX suits are often working off “imperfect data,” said Brian Schwartz, an attorney at Miller Canfield who represents colleges universities in Title IX athletic cases.

“They’re rushing to assumptions based on data they have,” Schwartz said, like the online rosters and public data used by Champion Women.

Whether they prove violations of the law, the lawsuits have opened a window into how colleges manipulate rosters to create an appearance of equity. Fresno State, which is facing its own lawsuit, offers both indoor and outdoor track and field for women, but only outdoor for men, according to university worksheets revealed in court records. That gave it 42 extra roster spots for female athletes under Title IX — even though it includes mostly the same athletes.

Title IX allows that kind of double-counting. But the numbers show how important double-counting women is to Fresno State, where 61 percent of students are women. When it counted duplicated spots, the school claimed 59 percent of its planned roster spots in 2021, after the cuts to its sports, will go to women. Without duplication, that number drops to 55 percent.

When it cut 11 sports last year, Brown University said it would reach compliance by adding both a women’s and student sailing team. The same women could compete on both teams and count twice for female spots.

Iowa has not yet handed over the names of the players it claims on its rosters, citing federal privacy law. Jim Larew, the lawyer representing Ohlensehlen’s case, said he believes those names will show Iowa is inflating the rosters on its women’s teams.

Iowa claimed 94 participants in rowing in 2018-2019, the athletes allege, well above the average roster size, though below some other schools. NCAA rowing includes “novice” competitions, where athletes who have never played the sport participate — which isn’t true of any men’s sports at Iowa.

Those practices have been common for years, said Donna Lopiano, a Title IX expert who has worked on behalf of the women in the Iowa suit and other recent cases. A 2017 Seattle Times investigation found the University of Washington inflated its rowing roster with dozens of women who were not actually on the team. The University of Wisconsin reported a staggering 176 women rowers in 2018, twice the size of its men’s team.

“All over the country, everybody in athletics knew what was going on,” Lopiano said.

Uneven playing fields

In court records, the athletes also target disparities in treatment between men’s and women’s teams. They have persisted for years, athletes allege, but have been normalized inside athletic departments — including for many of the female athletes themselves.

For most of her career at Fresno State, Megan Walaitis didn’t think much of the little indignities that went along with being a women’s lacrosse player. There was the practice field that doubled as a tailgate space on weekends, where they had to pick trash and glass out of the dirt before they played, and the inferior locker rooms and buses, coaching staffs and food. It was all just what you had to put up with to play.

But last fall, when Fresno’s athletic director told Walaitis and her team that the university was cutting women’s lacrosse, along with several other sports, all those years of feeling inferior suddenly fit into a bigger pattern for Walaitis.

“It’s not like we’re the only women’s team on campus that’s been treated like this, and that’s really eye-opening,” Walaitis said. “Because the university does not care, and it shows, and you can feel it. It’s really upsetting.”

In a statement to the Washington Post, Fresno State said the university “does not believe it has treated any of its female athletes inequitably.”

On calls with women’s teams after their sports were cut, there was often not enough time to talk through all of the inequities athletes had endured, said Hogshead-Makar, of Champion Women.

“Students had swallowed the nonsense hook, line and sinker that they deserved less because they weren’t making the money that the football team and the men’s basketball team is making,” Hogshead-Makar said. “They weren’t standing up for their rights because they didn’t know that they had them.”

Ohlensehlen calls the day she made the Iowa swimming team “the best day of my life.” She calls the day the program was cut last year “the absolute worst.” Barta, the athletic director, spoke to the group of male and female athletes gathered in the gym, Ohlensehlen said, then quickly left, letting his assistants answer questions.

It was the first time Ohlensehlen, a second-year captain, had ever spoken to Barta, she said. That fact stuck out for her — another example of how little she believed the school had cared about her and her team.

“We’re not asking for money, we’re not asking for private jets like the football team has. We just want a swimsuit, cap and goggles,” said Ohlensehlen. “We just want to swim.”