On Oct. 16, Fresno State eliminated its lacrosse program, and this cut left many of its players wondering if Fresno State is violating Title IX. The player’s legal counsel believes the university has and is now threatening litigation.
Lacrosse was one of three programs cut, along with men’s tennis and wrestling. The Fresno State Athletic Department cited a significant budgetary impact due to the COVID-19 pandemic.
Fresno State said it expects to have a deficit of $6.6 million in the upcoming fiscal year. The department’s average annual operating deficit is $2.2 million, and cutting three sports will save approximately $2.5 million once the reduction transition is completed following the 2020-21 academic year.
At least 30 schools have cut nearly 100 programs across the country to relieve financial strains on their athletics, according to a recent “60 Minutes” piece. But as many higher-education institutions make these cuts, they’re putting themselves at risk of violating Title IX, the gender-equity law.
Just in the last year, Brown University cut five women’s sports and six men’s sports, citing “an opportunity to invest even further in advancing excellence in our full lineup of sports programs.” The university then reinstated three men’s programs, putting them in violation of a 1998 Title IX agreement.
In September, William & Mary eliminated four women’s sports and three men’s sports because of financial reasons due to COVID-19 pandemic budgetary constraints. These dismissals put William & Mary in violations of Title IX.
In each case, attorney Arthur Bryant, of Bailey & Glasser LLP based in West Virginia, was called to represent the cut Brown and William & Mary’s women’s teams.
William & Mary agreed to reinstate its women’s gymnastics, swimming and volleyball teams, develop a Gender Equity Plan, and come into full compliance with Title IX by the 2022-23 academic year to avoid being sued. Additionally, Brown agreed to restore its women’s equestrian and women’s fencing teams and comply with the 1998 Cohen v. Brown joint agreement until 2024.
Once Bryant believed Fresno State had a case, he sent a letter to University President Dr. Joseph I. Castro on Dec. 3. He received no response and then sent a follow-up letter on Dec. 8 threatening to take the university to court.
A Fresno State spokesperson responded to the allegations on Dec. 5 by saying they have a steadfast commitment to gender equity. Still, Bryant said that these are empty words in his second letter to the university.
After receiving Bryant’s second letter, Fresno State University Counsel Darryl Hamm responded to the email. He said that the university was planning on responding to the alleged Title IX violations and that Fresno State’s steadfast commitment to gender equity statement was not empty words.
“President Castro and the entire University ardently support gender equity in our athletics program. You gave us minimal time to respond to these allegations of non-compliance,” Hamm said. “We will provide a letter responding to the allegations by the end of this week. Once you have our response, we are also willing to speak with you about your concerns.”
Bryant said that the law is apparent that despite the university losing money, they can’t discriminate against people to avoid losing that money, even if the university claims budgetary cuts due to COVID-19.
“It’s a federal law. They have to comply with it…you can’t get away with violating it because you say you don’t have enough money,” Bryant said. “There’s money there. It’s just they would have to spend some of it on something else.”
In an interview on Dec. 11, Castro supported the university’s decision to eliminate the lacrosse program and that Fresno State was aware of Title IX regulations at the time of the decision.
“Given what occurred over the last nine months, it was clear to me that we needed to make an adjustment, and we made that adjustment in terms of calling for the elimination of three sports,” Castro said. “And we did so in a way that was cognizant about Title IX regulations and will actually position us in a way where we’re even more equitable than we were before.”
Title IX policy states there are three ways universities can prove they’re compliant in providing equal opportunities for male and female athletes. Universities must show that the numbers of men and women participating in athletics are substantially proportionate to their enrollment, that they’re continuing to expand programs responsive to the interests and abilities of that sex or the present program fits the interests and capabilities of the underrepresented sex.
According to the most recent Equity in Athletics Disclosure Act (EADA) data, Fresno State reported an undergraduate population of 11,518 women and 7,828 men in the 2018-2019 academic year.
Undergraduate enrollment was 59.54% women. Bryant said that with the elimination of the teams, the school’s athletic participation numbers drop to approximately 221 men and 295 women, or 57.17% women — which leaves a 2.37% gap between the percentage of undergraduate women students and women student-athletes. To reach gender equity under Title IX, Bryant said Fresno State would need to add 30 women — almost the same number of players on the lacrosse team.
The most recent EADA data shows there are 28 participants on the lacrosse team.
According to Title IX policy, universities are also required to provide reasonable opportunities for scholarships and other financial aid to members of each sex, corresponding to the participation rate of each sex in intercollegiate athletics. The most recent EADA data on Fresno State shows that 52% (about $4.24 million) of the total aid (about $8.11 million) goes to women’s teams, and 48% of the support (about $3.87 million) goes toward men’s teams. With Fresno State, the athletic participation rates and the aid don’t align.
“If your participation rates are right, then you’re supposed to be giving the athletic financial aid that matches that,” Bryant said.
Another part of Title IX for college athletics includes treating athletes equally in everything from uniforms, equipment, travel, coaching, recruiting and publicity, Bryant said. “And the basic conceptual notion is men as a whole in the program are supposed to be treated equally to women as a whole in the women’s program,” he said.
According to Bryant, the lacrosse members are seeking two things. They want the university to reinstate the program and comply with Title IX regulations. If Fresno State does not voluntarily reinstate the team, Bryant said he would seek a preliminary injunction to preserve the team.
“We want the team put back and want the school to get into compliance with Title IX,” Bryant said. “They have two ways to get there. One [way] is they can agree to do it voluntarily. The other way is we can force them to do it in court.”
Neither the university nor Castro had replied to Bryant’s request by Monday. But a Fresno State spokesperson released a statement in response to Bryant’s claim of Title IX allegations.
“Title IX proportionality was among the top factors considered when we evaluated the difficult choices that had to be made regarding our athletics program. The University will ensure its commitment to gender equity and investment,” the spokesperson said. “As we review the letter received recently, we want to reaffirm our steadfast commitment to gender equity throughout our stellar athletics program.”
Bryant believes that it would be in Fresno State’s best interest to reinstate the program and upgrade to the program based on gender equity instead of facing litigation and paying out a much larger sum.
“When you take a look at the amount of money, the school paid out in those verdicts cited in my letter, you know it’s jaw-dropping numbers,” Bryant said. “And you’re thinking, and they don’t want to spend the relatively small amount? You’re claiming they don’t have enough money here. I mean, please.”
Brief History of Fresno State Athletics and Title IX
Since 1992, Fresno State has made headlines at the national level with its reoccurring Title IX violations and lawsuits over the last three decades.
1992: The California National Organization for Women sues the California State University system, alleging discrimination by Fresno State against women in the athletics department.
After a two-year investigation brought on by the suit, the U.S. Department of Education’s Office of Civil Rights (OCR) finds Fresno State out of compliance with Title IX in 11 of 13 areas.
The OCR implements a 7-year, $7 million corrective plan. The civil rights office declared Fresno State Title IX complaint in 2001.
2004: Associate Athletic Director Diane Milutinovich files a lawsuit against Fresno State alleging that she was forced out of her administrative position in athletics in 2002 and reassigned due to outspoken advocacy of gender equity in sports.
In October 2007, Milutinovich reached an out of court settlement of $3.5 million. During this time, softball head coach Margie Wright and track head coach Ramona Pagel were all paid settlements by the university following similar claims.
2005: Women’s basketball head coach Stacy Johnson-Klein files a lawsuit against Fresno State alleging gender discrimination after being fired by the athletic department.
In December 2007, Johnson-Klein was awarded $19.1 million by a jury, later reduced to $6.6 million.
February 2006: Fresno State women’s volleyball coach, Linda Vivas, filed a discrimination suit against the university, asking for $4.1 million in lost wages and damages.
Vivas claimed that the university discriminated against her because of her perceived sexual orientation and gender equity advocacy for female athletes. A jury awarded her $5.58 million in July 2007, which a court reduced to $4.52 million.
February 10, 2016: Castro announces that they received word from the OCR that they have closed its case against Fresno State after nearly 25 years of being watched by federal investigators.
The OCR and Fresno State entered into a Voluntary Resolution Agreement in 2009 to resolve the multiple Title IX athletics complaints filed against the university over the previous two decades. The university provided the OCR with required monitoring reports and data demonstrating the completion of 45 specific remedial action steps.
“While we are very pleased that this case is closed, we will continue to remain steadfast in maintaining our compliance with Title IX,” Castro said. “We want to continue to be a national leader in this area. Academics and athletics at Fresno State will continue to boldly rise together.”
Written by Anthony De Leon and Zaeem Shaikh