Case Study 8.2 Favia v. Indiana University Of Pennsyl- 812 supp. 578 pa. 1993) Before the Court Is a class action lawsuit brought by women students at Indiana Uni verslty of Pennsylvania (IIJP) alleging sys tenc discrimination on the basis of Wlder in ItJP's Intercollegiate athletic program. The Frank Cignetti, are the named defendants. pursuant to Rule 65, Fed. R. p, the plain. tiffs seek a preliminary injunctic-m to have the two teams and to prohibit the defendants from eliminating any more women's teams. This case arises out of Title IX of the Education Amendments of 1972, U.S.C. et seq and the equal pro tection clause of the Fourteenth Amendment. But plaintiffs here rely solely on allegi Title IX violations as the basis for their preliminary injunction motion. They contend that IUP fostered disparities in ath- letic participation opportunities on the basis 01 gender by providing disparate levels 01 support to male and female athletes and by allocating athletic scholarships in a gender discriminatory way. iS a university Within the Pennsylvania State System Of Higher Education. It is and thus subject to man- dates In 199091, had students, men and women. Thus, 55.61 % Of the Student was female at the time ot the decision to cut intercolle*late athletic teams. In 1991, IUP was faced with a budget crisis. There were substantial reductions in both state and tederal aid to the school, and as a result , the university administration vised its various departments that they had to reduce their including the partment Of Athletics, which was to mdwe its by 8350/1" In August 1991 , an was made that the and h'*key teams and the men's soccer and tennis Were going to eliminated beginning With the 1992-93 school year. Prior to the 1991 cutback, IUP had a total of athletes on its Intercollegiate teams. 313 male and female. The oi female athletes was 37.77K compared to the entire female student population percentage of 55.61 After these program cutbacks. including normal attrition on the feu'tball team, roughly 397 students were participating in interscholastic athletics, 248 males and 149 females, or 36.51% females. action is brought on behalf of the women athletic program participants and all present and future IUP women students or potential students who participate. seek to partic- ipate, or are deterred from participating in intercollegiate athletics by plaintiffs Favia, Wendy Schandelmeier, Kim and Amy Phaehlerl had Of the women's gymnastics and held the Dr. rence Pettit, the director Of IUP has three of sports teams: (1) intercollegiate varsity teams, which belong to the National Collegiate Athletic As- sociation (NCA_A) and bring the scht-xl the most money and prestige of the three cate- gories; (2) club teams. which are Informal, basically student-run organizations: and (3) intramural teams. which are open to all stu- dents. Varsity teams. the official" represen- tative of the university, have tull- and part time coaches. designated schedules, rules, and regulations. Varsity teams also have access to ice, water. storage and locker space. and have professional athletic trainers and a traveling budget for away games. They also have more funding and coaches than the intramural or club teams. At the time Of the cutbacks, IUP had roughly 18 varsity sports (hall male and half female as far as numbers of teams). 18 club sports. and 44 intramural sports (19 female. 5 coed. and 20 male). Before the cutbacks. IUP had nine and nine women's Inter collegiate athletic teams. Because o' the elimination of the four teams. IUP now has seven teams per gender Apparently, Mr. Frank Cignetti, the athletic director, believed that it was best to elim- inate equal numbers Of men s and women'S teams, recommended this to the Athletic policy which in turn cuts to ltJps president, teams were because they no viable, to the wit- nesses for IUP DE David lhCOSter, vicepres- ident Of Student affairs, Cited a declining na- tional trend in women's gymnastics and held hOCkey, but testified that the popularity Of women's soccer is increasing. He, Mr. Cignetti, and others testified that it was the intent of the university to replace the women's gymnastic and field hockey teams with a varsity soccer team at sometime in the future when there was less of a financial crunch at the university. The statistics speak for themselves and make a strong case for the women plaintiffs. find that while the number of female stu- dents greatly exceeds the number of male students at LJP, roughly to 45%, the per- Centage Versus male athletes quite the opposite. In 1991-92, 01 all ath- Ietes were female and were males. With the elimination of the two women's teams the percentage of women athletes droplYd to and the men increased to 64%. We heard considerable testimony about the general state of IUP athletics for women. Ruth Podbielski. former associate director oi athletics at IUP. retired in after 31 and a half years at IUP. The first women's varsity team. she said. was formed in 1970. Prior to that all women's teams were club teams. When Frank Cignetti, the athletic director, came to IUP in 1982 there were 10 varsity women's teams. This subsequently dropped to nine. and With the CutS under consider- ation here there are only seven. According to Ms. Podbielski. the women athletes and teams have generally been behind the men's in terms of priorities. She felt that Mr Cignettl was well motivated toward all ath Ietes and athletics (and so do we). and he made some very constructive improvements when he came to the university in 1982, but with the budget problems. the situation has deteriorated Although retired, Ms. Pcxibielski wrote a letter to the president Of spoke to David Decoster, vicepresident student fairs (who was also a witness), and to Frank Cignetti about the Situation and that She felt that cuts a lation Of Title IX She Cited a number Of uities at IUP. scholarships for and men's basketball are than Other sports. and this affects The baseball held (for men) is kept in much better shape than the softball field (for women). Ms. Podbielskj was succeeded by another woman. Vivian Fuller (also a witness) as as sociate athletic director. Ms. Fuller Wt in Aunist 1992. and because of the budget problems. there are no plans to replace her. This leaves Mr. Cignetti and another male. who is an associate athletic director. as the two holding the top p'*itms in the de partment. MS Christine Grant testified as an expert in the area 01 equity in sports. She had president of the AIAW and since 1973 has been the director of the Women's Athletic Prwam at the University of Iowa. Her con- clusions. after studying the situation at IUP. were that IUP should O) reallocate re- sources. (ii) appoint a committee to draw up a five-year plan for athletics. and (iii) imme- diately reinstate the womelfi gymnastics and field hockey teams. Ms. Grant also tes- tified that it was good for student athletes to compete in championship meets no matter who sponsored them. or how prestigious they might be. and that whether or not it Was the NCAA that them Should not be a factor. We note that she had tken president of the AIAW, and this may have had something to do with her disdain for the NCAA nevertheless. we were impressed with Ms. Grant's background. abilities. and testimony. In terms of student scholarships the women also fall well behind the men; In the university awarded $314,178 in scholarships. Of this amount, $246,755 went to men and only S67,423 to women, or to women and to men. The thrust the testimony the wit- for the university was that the cuts were necessitated by the budget problems, that the university had maintained by cutting tm t. as well as two women's teams, and that it intended to to varsity Status as Soon as the would nately. however, Title IX does not provide for any exception to its requirements simply be cause of a school's financial difficulties. In other words, a cash crunch is no excuse. In ruling on a motion for a preliminary in- junction. we must consider four factors: (I) the likelihood that plaintiffs will prevail on the merits of their claims. (2) the extent to which plaintiffs are being irreparably harmed, (3) the extent to which defendants will suffer irreparable harm if the pre- liminary injunction is issued. and (4) whether the public interest favors the entry of the preliminary injunction. Only if plain, tiffs produce evidence sufficient to convince us that all tour factors favor preliminary relief should a preliminary injunction issued). Plaintiffs have the burden of proof. By cutting the women's gymnastics and field hockey teams. IUP has denied plaintiffs the trnefits to women athletes who cornlRte interscholastically: they develop skill. self- confidence. learn team cohesion and a sense of accomplishment. increase their physical and mental well-being and develop a lifelong healthy attitude. The opportunity to compete in undergraduate interscholastic athletics vanishes quickly. Inat the benefits do not. We believe that the harm emanating from opportunities for the plaintiffs is likely to be irreparable. We do not believe that the defendants will be irreparably harmed If the women's field hockey and gymnastics teams are rein stated. The budget. while shrinking. has space for reallocatiM1 and cutbacks in other Next. we must consider whether plaintiffs have shown that they have a reasonable probability of success on the merits of their Title IX claim, Our decision to grant the pre- liminary injunction is legally only a pre- diction the merits Of plaintiffs' We hasten to add, that in view the Statistical evidence at pre- liminary hearing, there is little as to the Ot any hearings these issues. We that plaintiffs have Case. Title IX provides a cause Of action to battle discrimination based on gender by educational institutions that receive federal funding and was Intended to prevent the use of federal resources to support gender dis- crimination. We must look to the language of Title IX of the Fucation Amendments of 1972: No 'Rrson in the tJnIti States shall, on the basis of sex. excluded from partici pation in. the benefits of, or be subjected to discrimination under any edu- cation program or activity receiving Fieral financial assistance" 20 U.sc. S 1681(a). Federal enforcement 01 the statute and its regulation is within the jurisdiction of the Ikpartment ot Education's (Mhce for Civil Rights (OCR). OCR's Policy Interpretation deserves our great deference. The Office of Civil Rights Regulatms applies Title IX to in- terscholastic. intercollegiate. club. and intra- mural athletics. Title IX and the imple- menting regulations can be violated without showing a specific intent on the part 01 the educational institution to discriminate against women. The OCR Policy Interpretation sets out a thrpronged test for whether an educa- tional institution complies with the duty to provide equality in its opportuniti to par- tic ipate in We must I. level participation opportunities for male and female students are pro in numbers substantially proportionate to their resp&tive enrollments; or 2. Where the members 01 one sex have been and are underrepre senti among intercollegiate ath- letics, whether the institution can Show a history and cmtinuing practice Of program expansion whu:h iS resp.msive to the developing interests and abilitiB the members Of that Where the members 01 one Sex are underrepresented among in- tercollegiate athletes, and the Ln- stitution cannot show a con- Unulng practice of program expansion such as that cited above. whether It can be demon strated that the interests and abil Ities of the members of that sex have ben fully and effectively ac- cornmcxfated by the present program. 44 Ff.Reg. 71418 (1k. 11, 1979).