UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ELIZABETH C. BARRETT, JESSICA
DEUTSCH, ASHLEY GILLMAN,
MELANIE HECKERT, STEPHANIE
HERRMANN, CAROLINE KRYSTOPOLSKI,
CARMEN MILLS, KYLA-DAWN LENTI,
and CECILE ALLEN, on behalf of themselves
and all similarly situated individuals,
Plaintiffs,
v.
WEST CHESTER UNIVERSITY
OF PENNSYLVANIA OF THE STATE
SYSTEM OF HIGHER EDUCATION,
MADELEINE WING ADLER,
EDWARD M. MATEJKOVIC and
BARBARA CLEGHORN,
Defendants.
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CIVIL ACTION NO.
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION DIRECTING DEFENDANTS TO
REINSTATE THE WEST CHESTER UNIVERSITY WOMEN’S GYMNASTICS TEAM
I.
INTRODUCTION
During the past decade, courts of this circuit and others have declared with one voice that
a university may not eliminate viable women’s intercollegiate teams when the university’s
athletic program violates Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et
seq. (hereinafter “Title IX”). In three seminal cases, these courts ordered Indiana University of
Pennsylvania, Colorado State University and Brown University to reinstate the women’s teams
that the universities had eliminated as part of wider budget cuts. See Favia v. Indiana Univ. of
Pa., 812 F. Supp. 578 (W.D. Pa. 1993) (granting preliminary injunction and restoring women’s
field hockey and gymnastics teams), aff’d, 7 F.3d 332 (3d Cir. 1993); Roberts v. Colo. State
Univ., 814 F. Supp. 1507, 1519 (D. Colo. 1993) (granting a permanent injunction restoring
women’s softball team), aff’d in pertinent part, 998 F.2d 824 (10th Cir. 1993); Cohen v. Brown
Univ., 809 F. Supp. 978, 1001 (D.R.I. 1992) (“Cohen I”) (granting preliminary injunction and
thereby restoring women’s varsity gymnastics and volleyball teams and ordering Brown to
provide the teams with all of the incidental benefits of varsity status), aff’d, 991 F.2d 888 (1st
Cir. 1993) (“Cohen II”).1
Ignoring clear precedent, West Chester University of Pennsylvania of the State System of
Higher Education (hereinafter “West Chester University”) has this year eliminated its women’s
gymnastics team, although by every measure West Chester University’s athletic program plainly
fails to accommodate the interests and abilities of its female students as required by Title IX.
Since West Chester University made its announcement in late April, Plaintiffs and their counsel
have worked diligently to resolve this dispute informally with West Chester University, laying
out the legal arguments and factual evidence that establish that West Chester University
unquestionably is violating Title IX by disbanding the women’s gymnastics team. Nevertheless,
West Chester University has refused to reinstate the team without a suit, leaving the Plaintiffs
with no choice but to file this lawsuit seeking a preliminary and permanent injunction requiring
the restoration of the women’s gymnastics team.
1
The Cohen v. Brown University case ultimately yielded four published opinions:
Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992) (“Cohen I”) granting a motion for
preliminary injunction; Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993) (“Cohen II”)
affirming the order; Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995) (“Cohen III”)
finding for plaintiffs after a trial on the merits; and Cohen v. Brown University, 101 F.3d 155 (1st
Cir. 1996) (”Cohen IV”) affirming judgment for the plaintiffs. In keeping with the First Circuit’s
practice, the Cohen decisions will be referenced by their numbers for the sake of clarity.
2
A.
The Need for Injunctive Relief is Both Immediate and Clear.
Although the gymnastics season is fast approaching – competition begins in January –
that does not begin to tell just how urgent the need for relief truly is. At hearing, Plaintiffs will
demonstrate something that cannot seriously be questioned, that the most important coaching and
training activities for a gymnastics team take place before the competitive season begins. The
West Chester University gymnastics team ordinarily begins intensive practice sessions in
preparation for the season in late September. Moreover, the University will not permit a team to
practice unless and until it has a qualified, duly appointed coach. That makes sense in all sports
but, for obvious reasons, it makes particular sense in a sport as potentially dangerous to the
inexpert as gymnastics.
What this means is that West Chester University must be ordered, now, to reconstitute the
gymnastics team and identify and appoint a coach for that team. Unless that relief is granted,
and granted very quickly, the current and potential members of the West Chester University
women’s gymnastics team will forever lose the chance to engage in intercollegiate competition
this year in the sport to which they have devoted their virtually their entire lives.
Plaintiffs therefore pray for an immediate hearing on their motion for a preliminary
injunction.
II.
STATEMENT OF FACTS
Plaintiffs Elizabeth Barrett, Jessica Deutsch, Ashley Gillman, Melanie Heckert,
Stephanie Herrmann, Caroline Krystopolski, Kyla-Dawn Lenti, Carmen Mills and Cecile Allen
are nine accomplished gymnasts who chose to attend West Chester University because the
school offered them an opportunity to compete on an intercollegiate women’s gymnastics team.
(Ex. 5, Herrmann Decl. ¶ 5; Ex. 6, Mills Decl. ¶ 5; Ex. 7, Allen Decl. ¶ 3.) These Plaintiffs have
devoted years to their sport, practicing 15-20 hours a week to earn a coveted spot on a collegiate
3
varsity team. (Ex. 5, Herrmann Decl. ¶¶ 3-5; Ex. 6, Mills Decl. ¶¶ 2-4; Ex. 7, Allen Decl. ¶ 2;
Ex. 9, Ovalle Decl. ¶¶ 5, 7.) Plaintiffs were devastated on April 28, 2003 when West Chester
University announced that it was eliminating the team. (Ex. 5, Herrmann Decl. ¶¶ 2, 14; Ex. 7,
Allen Decl. ¶ 5; Ex. 8, Grant Decl. Ex. B (official announcement)) Plaintiffs have now brought
suit, challenging the discontinuance of this athletic team as a violation of Title IX, against West
Chester University as well as President Madeleine Wing Adler, Athletic Director Edward
Matejkovic, and Assistant Athletic Director Barbara Cleghorn in their individual and official
capacities. Plaintiffs seek to represent a class of present and future West Chester University
female students, admitted students and potential students who participate, seek to participate,
were deterred or prevented from participating in, or obtaining the benefits of, intercollegiate
athletics sponsored by West Chester University. (A copy of the Complaint is attached hereto as
Exhibit 1.)
West Chester University, one of fourteen universities in Pennsylvania’s State System of
Higher Education, draws some 90 percent of its full-time undergraduate student body, numbering
approximately 8,700, from Pennsylvania. (Ex. 9, Ovalle Decl. ¶ 5; Ex. 8, Grant Decl. Ex. A,
2001-02 Report at 1.) Women make up roughly 60 percent of the undergraduates. (Ex. 8, Grant
Decl. ¶ 9, Ex. A, 2001-02 Report at 1.) In recent years, West Chester University has claimed to
offer twenty-three (23) intercollegiate athletic sports for men and women.2 (See, e.g., id. Ex. A,
2001-02 Report, Table 1; id. Ex. B.) Men have enjoyed the opportunity to compete in baseball,
basketball, football, golf, lacrosse, soccer, swimming and diving, tennis, cross-country, and
2
These numbers are evidently based on the classifications employed by the federal
Equity in Athletics Disclosure Act report. The university’s website lists a slightly smaller
number of teams, and some teams, which West Chester University counts separately in the
Equity in Athletics Disclosure Act report, appear to be unified co-ed teams.
4
indoor and outdoor track, while for at least a decade women have competed in basketball, field
hockey, gymnastics, lacrosse, soccer, softball, swimming and diving, cross-country, indoor and
outdoor track, tennis and volleyball. (Id.) All of these are N.C.A.A. Division II sports (see id.
Ex A, at 1) save women’s field hockey, which competes in Division I.
As a recipient of federal financial assistance, West Chester University must comply with
Title IX and, pursuant to the Equity in Athletics Disclosure Act (“EADA”), file an annual report
setting forth the numbers of participants in each sport and the resources expended by the school
on intercollegiate athletics for men and women. (Ex. 8, Grant Decl. Ex. A.) The statistics that
West Chester University has compiled3 indicate that, while West Chester University may offer
approximately the same number of intercollegiate sports to men and women, it has, in fact, failed
to offer women equal opportunities to participate in intercollegiate athletics or equivalence of
other athletic benefits. The last set of publicly available statistics, for the year 2001-02,4 show
that while women constituted 60.8 percent of the undergraduate student body, they received just
238 of the 534 slots on West Chester University’s intercollegiate athletic teams, or 44.6 percent
of the participation opportunities. (Ex. 8, Grant Decl. ¶ 9, Ex. A, 2001-02 Report at 1, Table 1.)
The EADA reports compiled by West Chester University further reveal that the number of
women participating in intercollegiate athletics decreased from 264 in 1998-99 to 238 in 2001-
3
Plaintiffs reserve the right to challenge the accuracy of these statistics. Nevertheless,
since these reports are prepared by Defendants, they represent admissions and are admissible to
show, as they do, that West Chester University’s athletic program is violating Title IX. Fed. R.
Evid. 801(d)(2).
4
Plaintiffs have asked Defendants to provide them with the EADA report for 2002-03,
but Defendants have not done so to date. As part of this Motion, Plaintiffs seek an order
directing Defendants to produce this information before the preliminary injunction hearing.
5
02, and the number of women on second and third teams decreased (id. ¶ 10) although total fulltime undergraduate enrollment grew from 7,496 to 8,725 in the same period (id. Ex. A).
The inequities are repeated in the areas of coaching and funding. In 2001-02, women’s
teams had 24 coaches to 30 for the men’s teams; head coaches of women’s teams earned on
average $23,220, compared to an average salary of $26,549 for the coaches of men’s teams;
assistant coaches of women’s teams earned a mere $2,789 on average while men’s assistant
coaches earned $7,539 on average. (Id. ¶ 13, Ex. A, 2001-02 Report, Tables 2A, 2B, 3A, 3B, 8,
9.) In 2001-02, just 37.7 percent of the recruiting dollars spent by the Athletic Department were
devoted to recruiting students to compete on women’s intercollegiate athletic teams. (Id. ¶ 13,
Ex. A, 2001-02 Report, Table 5.) This disparate treatment of women in 2001-02 is indicative of
the historical mistreatment of women in intercollegiate athletics at West Chester University.
(See id. Ex A.)
Women’s gymnastics has been under siege for several years at West Chester University,
despite a proud history. West Chester University’s women’s gymnastics team competed in the
first national collegiate championships in the 1960s and the first AIAW national championships
in the 1970s and 1980, placing third, fourth and fifth. (Ex. 5, Herrmann Decl. ¶ 6.) West
Chester University women were the 1983 N.C.A.A. Division II regional champions and placed
fourth at the 1983 N.C.A.A. Division II national championships. (Id.) The team boasts over 200
victories and seven AIAW & N.C.A.A. All-Americans in the last three decades, and in just the
past season the team bettered its own record on three occasions. (Id. ¶¶ 6, 13.) Four times in the
past four years, a member of the West Chester University team has been named Division II
Rookie of the Year in women’s gymnastics. (Id. ¶ 13.) West Chester University regularly sent
women gymnasts to the USAG Collegiate National Championship from 1994 until 2001, after
6
which the university refused to spend the money necessary to allow its elite athletes to compete
on a national stage with their peers. (Ex. 5, Herrmann Decl. ¶¶ 6, 12; Ex. 6, Mills Decl. ¶¶ 6-7;
Ex. 7, Allen Decl. ¶ 4.) In the past season alone, this discriminatory policy deprived two team
members, who had qualified for the national tournament, the opportunity to compete. (Ex. 5,
Herrmann Decl. ¶ 12; Ex. 7, Allen Decl. ¶ 4.)
West Chester University has undermined its women’s gymnastics team in other ways in
recent years. Although continuity in coaching is vital to a team’s success, West Chester
University has changed coaches at least three times in the past four years, and has deprived the
team of an assistant coach in the past two years, despite the apparent availability of funds and
notwithstanding the fact that other teams at West Chester University have assistant coaches.
(Ex. 5, Herrmann Decl. ¶ 10; Ex. 8, Grant Decl. ¶ 11.) West Chester University failed to hire
any coach for the 2002-03 season until November, less than two months before the start of
competition, and until the coach was hired, West Chester University would not allow the team to
practice at the university facilities. (Ex. 5, Herrmann Decl. ¶ 10; Ex. 6, Mills Decl. ¶ 8.)
Although Plaintiffs did their best to prepare in the interim, traveling over an hour three days a
week at their own expense to a private gymnasium to practice, they were not able to devote as
much time to practicing as they would have if they had had a coach and use of the university’s
facilities. (Ex. 5, Herrmann Decl. ¶ 10; Ex. 6, Mills Decl. ¶ 8.)
In light of these obstacles, and injuries that took some of the Plaintiffs out of competition
for all or part of the season, the team’s accomplishments are all the more remarkable: the team
put together a schedule of nine meets with teams in their geographic area,5 recruited five new
5
The West Chester University team competed against the University of Pennsylvania,
Temple University, Ursinus College, University of Bridgeport, S.U.N.Y. Colleges at Cortland
(continued...)
7
members for the upcoming season,6 bettered its team record three times, qualified two team
members for national championships, and had the honor of seeing Plaintiff Caroline
Krystopolski – a mid-year walk-on – named Division II Rookie of the Year in women’s
gymnastics by the Eastern College Athletic Conference (“E.C.A.C.”), in which the team
competes. (Ex. 5, Herrmann Decl. ¶¶ 12-14.) The team’s coach planned to return this year, and
had compiled an even larger schedule of meets for the 2003-04 season. (Ex. 5, Herrmann
Decl. ¶ 14.)
In 2001, West Chester University announced that it was considering eliminating women’s
gymnastics, along with men’s tennis, golf and lacrosse, and formed a committee to study the
issue. (Ex. 5, Herrman Decl. ¶ 9; Ex. 8, Grant Decl. Ex. B.) Press reports indicate that West
Chester University quickly dropped consideration of eliminating women’s gymnastics,
concluding that the elimination would violate Title IX. Ultimately in 2002, at the
recommendation of the committee, West Chester University decided not to discontinue any
sport. (See Ex. 8, Grant Decl. Ex. B.) However, on April 28, 2003, citing further budget cuts,
West Chester University announced that it was eliminating women’s gymnastics, together with
the 30-member men’s lacrosse team, in 2003-04. (Id. Ex. A, Table 1; id. Ex. B.)
________________________
(continued...)
and Brockport, Springfield College, Ithaca College, and Southern Connecticut State University.
The meets with Ithaca and Southern Connecticut were held at home.
6
Upon learning of West Chester University’s decision to disband the women’s
gymnastics team, four of the five recruits decided to attend other educational institutions.
Plaintiff Cecile Allen reluctantly transferred to Penn State, in the hope that she will be permitted
to compete on the team, although transferring has potentially cost Ms. Allen her major and
markedly increased the financial burden on her parents. (Ex. 7, Allen Decl. ¶¶ 6-7.) Ms. Allen
would consider returning to West Chester University if the team were restored. (Id. ¶ 6.)
8
West Chester University was certainly aware that the elimination of the women’s
gymnastics team raised Title IX issues, because the university’s press release announcing the cut
made reference to the federal anti-discrimination statute, and tried to create the impression that
the university would be complying with Title IX by “adding” women’s golf. (Id. Ex. B.) The
numbers tell a different story. Even if West Chester University attained its stated aspiration of
providing as many golfing opportunities to women as the gymnastics opportunities it eliminated,
disbanding the men’s lacrosse team would only slightly reduce the disparity between women’s
enrollment and their athletic participation, to approximately 12 percent. (Ex. 8, Grant Decl. ¶ 9.)
Plaintiffs are ready, willing and able to compete this season. (Ex. 5, Herrmann Decl.
¶ 12; Ex. 6, Mills Decl. ¶ 9; Ex. 9, Ovalle Decl. ¶ 9; Ex. 8, Grant Decl. ¶ 11.) All of the
Plaintiffs, except Cecile Allen, are now enrolled as full-time undergraduate students at West
Chester University, and are eligible to compete this year under N.C.A.A. rules. (Ex. 5,
Herrmann Decl. ¶ 14; Ex. 6, Mills Decl. ¶ 9; Ex. 7, Allen Decl. ¶ 6.) There is still time to put
together a full schedule of meets for the team and begin preparing for the season, which begins in
January. (Ex. 9, Ovalle Decl. ¶ 15; Ex. 5, Herrmann Decl. ¶ 17.)
III.
ARGUMENT
A.
Standard for Entering a Temporary Retraining Order or Preliminary
Injunctive Relief.
To secure preliminary injunctive relief, Plaintiffs must establish their need for immediate
relief by showing (1) they are likely to succeed on the merits; and (2) denial of preliminary
injunctive relief will result in irreparable harm to them before a trial on the merits can take place.
See BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 263 (3d Cir. 2000). When
reviewing an application for preliminary injunctive relief, the Court should also consider whether
(3) granting an injunction will result in irreparable harm to the non-moving party and/or harm to
9
the moving party outweighs the harm to the non-moving party and (4) granting the injunction is
in the public interest. See Acierro v. New Castle Co., 40 F.3d 645, 647, 653 (3d Cir. 1994). The
named Plaintiffs in this action can clearly satisfy all four prongs of the test for immediate relief.
B.
Plaintiffs Will Prevail Because Title IX Prohibits the Gender
Discrimination Engaged in by West Chester University.
1.
Legal Standards and Burden of Proof.
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. provides in
pertinent part that:
No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.
In regulations promulgated by the Office for Civil Rights, Department of Education, Title IX’s
mandate is applied to athletics:
No person shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, be treated differently from another
person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club or intramural athletics offered
by a recipient, and no such recipient shall provide any athletics
separately on such basis.
[. . .]
Equal opportunity. A recipient which operates or sponsors
interscholastic, intercollegiate, club or intramural athletics shall
provide equal athletic opportunity for members of both sexes.
34 C.F.R. § 106.41(a) & (c). Title IX’s application to athletics is often grouped into three
general subject areas: scholarships, equivalent treatment and equal accommodation. See
Pederson v. La. State Univ., 213 F.3d 858, 879 (5th Cir. 2000). The term “equal
accommodation” signifies the question of whether “the selection of sports and levels of
competition effectively accommodate the interests and abilities of members of both sexes,”
10
34 C.F.R. § 106.41(c)(1); in other words, are women and men given equal opportunities to
participate in sports, including intercollegiate athletics? “Equal treatment” considers the
provision of services associated with college athletics, such as equipment, coaching, medical
care, etc. 34 C.F.R. § 106.41(c)(2)-(10). When an educational institution falls short in any one
of these three areas, it is in violation of Title IX, even if the institution otherwise complies with
the statute. See Cohen II, 991 F.2d at 897.
The Office for Civil Rights (“OCR”), Department of Education, and/or its predecessor
has provided guidance on the application of the regulations by promulgating the 1979 Policy
Interpretation of Title IX (the “Policy Interpretation”), the 1996 Clarification of Intercollegiate
Athletics Policy Guidance: the Three-Part Test (the “Clarification”), and the 2003 Further
Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance (the
“Further Clarification”).7 OCR’s policy interpretations are entitled to substantial deference, see
Favia, 812 F. Supp. at 584 (citing Chevron U.S.A. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)); accord Cohen IV, 101 F.3d at 172-73; Roberts, 998 F.2d at 828, and the
interpretations shed further light on the equal accommodation and equivalent treatment issues
that are raised in this lawsuit.
With regard to equal accommodation, the policy interpretations explain that compliance
with Title IX’s requirement of providing equal opportunities to participate in intercollegiate
athletics is to be evaluated by determining:
a.
Whether intercollegiate level participation
opportunities for male and female students are provided in
numbers substantially proportionate to their respective
enrollments; or
7
For the Court’s convenience, copies of the applicable regulations and the Policy
Interpretation, Clarification and Further Clarification are appended hereto.
11
b.
Where the members of one sex have been and are
underrepresented among intercollegiate athletes, whether the
institution can show a history and continuing practice of program
expansion which is demonstrably responsive to the developing
interests and abilities of the members of that sex; or
c.
Where the members of one sex are
underrepresented among intercollegiate athletes, and the institution
cannot show a continuing practice of program expansion such as
that cited above, whether it can be demonstrated that the interests
and abilities of the members of that sex have been fully and
effectively accommodated by the present program.
Ex. 2, Policy Interpretation, 44 Fed. Reg. 71418. If the educational institution receiving federal
funds cannot satisfy any part of this three-part test, then the institution is in violation of Title IX.
See id.; see also Cohen II, 991 F.2d at 897 (holding that a failure effectively to accommodate the
interests and abilities of women athletes alone can constitute a violation of Title IX). Where, as
here, Defendants have eliminated an existing women’s team, Plaintiffs have the burden of proof
as to the first part of the test, while Defendants have the burden of proof as to the second and
third parts of the test. See Favia, 812 F. Supp. at 584.8
Turning to the area of equivalent treatment, the regulations outline nine areas of inquiry,
including: the opportunity to receive coaching; the assignment and compensation of coaches;
8
All the courts that have considered the issue of burden of proof agree that the plaintiff
has the burden of proof as to the first prong, while the defendant has the burden of proof as to the
second. See Favia, 812 F. Supp. at 584; Cohen II, 991 F.2d at 901-02; Roberts, 998 F.2d at 829
n.5, 830 n.8. In so doing, the courts have relied on the OCR’s policy interpretation. Cohen II,
991 F.2d at 901-02; Roberts, 998 F.2d at 829. In January 1996, after the Cohen II and Roberts
decisions were handed down, the OCR clarified that, with regard to the third prong of the threepart test, when an existing team for the underrepresented sex has been eliminated, the burden is
on the institution – here, West Chester University – and not on the Plaintiffs, to “provide strong
evidence that interest, ability or available competition no longer exists.” Ex. 3, Clarification at 9.
Accordingly, giving proper deference to the OCR’s Clarification, this Court should join the
Favia court in holding that Defendants have the burden of proof as to the third prong of the threepart test and, moreover, that Defendants can only satisfy this prong by producing clear and
convincing evidence that there is insufficient interest, ability and available competition to
continue the women’s gymnastics team – evidence that Defendants most certainly cannot muster.
12
and the provision of practice facilities. 34 C.F.R. § 106.41(c)(5), (6), (7) & (8). Here, too, the
Policy Interpretation provides further guidance, directing courts to examine the relative
availability of coaches and assistant coaches, their training and experience, the rate at which they
are compensated and the duration of their contracts, among other factors. Ex. 2, Policy
Interpretation, 44 Fed. Reg. 71416. The Policy Interpretation also highlights the importance of
recruiting to achieving equal opportunities for men and women, stating that where equal
opportunities are absent recruitment practices should be examined, including:
(1) Whether coaches or other professional athletic
personnel in the programs serving male and female athletes are
provided with substantially equal opportunities to recruit.
(2) Whether the financial and other resources made
available for recruitment in male and female athletic programs are
equivalently adequate to meet the needs of each program; and
(3) Whether the differences in benefits, opportunities and
treatment afforded prospective student athletes of each sex have a
disproportionately limiting effect upon the recruitment of students
of either sex.
Ex. 2, Policy Interpretation, 44 Fed. Reg. 71417. While unequal aggregate expenditures on male
and female athletes do not automatically establish a per se equivalent treatment violation, they
are a key factor to be considered in assessing equality of opportunity, 34 C.F.R. § 106.41(c), and
courts have not hesitated to find against educational institutions when more resources are
devoted to male athletes. See Pederson, 213 F.3d at 881 (concluding that Louisiana State
intentionally violated Title IX when it, inter alia, consistently compensated coaches of women’s
teams at a rate far below that of its male team coaches); Favia, 7 F.3d at 343 (refusing to modify
a preliminary injunction to permit the substitution of a less expensive team for a more expensive
team since it would increase the funding gap between men’s and women’s sports).
13
As noted above, Plaintiffs need only demonstrate that they are likely to succeed on the
merits of either their equal accommodation or their equivalent treatment claim in order to obtain
preliminary relief. See Cohen I, 809 F. Supp. at 994 (granting a preliminary injunction based on
the finding that plaintiffs were likely to succeed on the merits of their equal accommodation
claim and declining to rule on equal treatment evidence), aff’d, 991 F.2d at 897. As it happens,
the evidence contained in Defendants’ own EADA reports enables Plaintiffs to demonstrate their
likelihood of success in both areas of Title IX compliance.
2.
West Chester University Does Not Meet Any Part of
the Three-Part Test for Accommodation of Women’s
Interests and Abilities.
(a)
Women Students at West Chester University
Do Not Enjoy Opportunities to Participate in
Varsity Athletics that Are Substantially
Proportionate to their Enrollment.
West Chester University clearly fails the first prong of the three-part test for equal
accommodation because the opportunities available to women to participate in intercollegiate
athletic activities are far out of proportion to the enrollment of women at the institution. See
Boucher v. Syracuse Univ., 164 F.3d 113, 116 n.4 (1999) (noting that “for Title IX
accommodation purposes, it is the aggregate number of opportunities provided for each sex, and
not the number of teams funded for each sex, that matters”). While female students have
historically comprised approximately 60 percent of the undergraduate student population, they
have been given in recent years only about 45 percent of the varsity athletic opportunities that
West Chester University offers, a disparity of approximately fifteen percent.9 (Ex. 8, Grant Decl.
¶ 9, Ex. A.)
9
Both OCR and the courts that have addressed the issue agree that the number of
“participation opportunities” available is determined by counting the number of women who
(continued...)
14
Courts have consistently found disparities smaller than West Chester University’s 15percent gap to fail this part of the three-part test. See, e.g., Roberts, 998 F.2d at 829-30 (10.5
percent disparity between female enrollment and female athletic participation failed the
substantial proportionality test); Cohen III, 879 F. Supp. at 211 (13.01 percent disparity was not
substantially proportionate). OCR’s 1996 Clarification makes it clear that “substantial
proportionality” requires a very close correlation between historical enrollment figures and
participation opportunities, permitting latitude of just a few percentage points when enrollment
proportions suddenly fluctuate from their historical levels or the number of slots that would have
to be added to achieve exact proportionality are too few to field another team. See id. at 4-5
(giving examples of substantial proportionality involving 1-2 percent disparities from enrollment
levels or five percent when the institution’s entire athletic program has only 60 participants).
West Chester University cannot avail itself of this small margin of flexibility since its
participation levels have never even approached proportionality with enrollment levels (see Ex.
________________________
(continued...)
actually participate in intercollegiate sports, and not spots that may theoretically be open but are
unfilled. See Ex. 3, Clarification at 2-3; Cohen III, 879 F. Supp. at 202-07, aff’d, 101 F.3d at
173. The Policy Interpretation, 44 Fed. Reg. 71415, defines participants (and, consequently,
participation opportunities) as those athletes:
a.
Who are receiving the institutionally-sponsored support normally provided to
athletes competing at the institution involved, e.g., coaching, equipment, medical
and training room services, on a regular basis during the sport’s season; and
b.
Who are participating in organized practice sessions and other team meetings and
activities on a regular basis during a sport’s season; and
c.
Who are listed on the eligibility or squad lists maintained for each sport, or
d.
Who, because of injury, cannot meet a, b, or c above but continue to receive
financial aid on the basis of athletic ability.
15
8, Grant Decl. Ex. A (showing disparities of 15.8%, 16.3%, 17.1% and 16.2% from 1998-99
through 2001-02)), and the number of additional women who would need to participate to
achieve proportionality – approximately 80 – is more than sufficient to field not just one but
several new teams (id. ¶ 9).
The elimination of the men’s lacrosse team and the addition of a women’s golf team will
not cure the imbalance. In recent years, the men’s lacrosse team has had, at most, 30
participants. (See Ex. 8, Grant Decl. Ex. A, Table 1.) In the event that West Chester University
achieves its stated aspiration of providing as many participation opportunities to female golfers
as it did to female gymnasts, women will still have only about 48 percent of the participation
opportunities, creating a disparity between enrollment and athletic participation of approximately
12 percent (Ex. 8, Grant Decl. ¶ 9), far below the rate needed to achieve substantial
proportionality.
(b)
West Chester University Cannot Demonstrate a
History and Continuing Practice of Expanding
Athletic Opportunities to Women.
West Chester University cannot carry its burden of demonstrating a “history and
continuing practice” of expanding the athletics program in response to women’s interests and
abilities. To satisfy this part of the three-part test, West Chester University must “demonstrate a
continuing (i.e. present) practice of program expansion as warranted by developing interests and
abilities.” Clarification at 6 (emphasis supplied). Defendants cannot. West Chester University
apparently has not added a women’s intercollegiate athletic team for over a decade (Ex. 8, Grant
Decl. ¶ 10), a hiatus much too long to permit a finding of continuing program expansion, see
Bryant v. Colgate Univ., No. 93-cv-1029, 1996 WL 328446, at *11 (N.D.N.Y June 11, 1996)
(denying Colgate summary judgment on this prong when four years had passed since the
addition of a women’s varsity team); Cohen III, 879 F. Supp. at 211 (finding that Brown had
16
failed to demonstrate a continuing practice of program expansion where Brown had last added a
women’s varsity team nine years before attempting to demote women’s gymnastics and
volleyball teams, and then added another varsity team during the litigation).
Just as importantly, even before West Chester University terminated the women’s
gymnastics team, it had in recent years already reduced the number of spots available on the
existing women’s varsity teams: West Chester University’s EADA reports show that while total
undergraduate enrollment grew from 7,496 in 1998-99 to 8,725 in 2001-02, the number of
women on varsity teams decreased in the same period from 264 to 238, while second and third
teams saw reductions in the number of participating women as well. (Ex. 8, Grant Decl. ¶ 10,
Ex. A.) By terminating the gymnastics program, West Chester University reduced participation
opportunities for women still further. (Ex. 5, Herrmann Decl. ¶ 12; Ex. 8, Grant Decl. Ex. A,
Table 1.)
The promise of adding a women’s golf team in the coming academic year will not
alleviate the need for preliminary injunctive relief. To the contrary, by adding golf West Chester
University would, at best, simply be substituting one team offering 9-14 participation
opportunities for another, thereby maintaining the same number of women’s teams that it has for
over a decade while failing to reverse the recent decline in participation opportunities for women
at West Chester University.
The substitution of golf for gymnastics will also apparently decrease the resources spent
on women’s intercollegiate athletics: Defendants asserted that budget cuts necessitated the
elimination of women’s gymnastics, and justified the simultaneous addition of women’s golf by
contending that it would “not incur any major expense increase to our program.” (Ex. 8, Grant
Decl. Ex. B.) Plainly, if Defendants are to be taken at their word, they have reduced the total
17
dollars spent on women’s athletics. In strikingly similar circumstances, the Court of Appeals for
the Third Circuit held that the district court had properly denied Indiana University’s motion to
lift a preliminary injunction, requiring the university to maintain a 15-member varsity women’s
gymnastics team, although Indiana University offered to start a 50-member women’s soccer
team in its stead. See Favia, 7 F.3d at 342-44. The appellate court noted that although the
substitution of soccer for gymnastics would, indeed, increase the total participation opportunities
available to women, Indiana University would nevertheless still not offer them athletic
participation opportunities proportionate to their enrollment, while the funding gap between
men’s and women’s athletics would only widen to the further detriment of women. See Favia, 7
F.3d at 343. West Chester University’s plan is even more harmful to women than was Indiana
University’s, since it does not offer women any material increase in the inadequate participation
opportunities that West Chester University provides while simultaneously decreasing the funding
of women’s varsity sports and robbing Plaintiffs of the chance to participate in a sport in which
they have demonstrated both interest and ability.10
Finally, it should be noted that West Chester University cannot demonstrate a history and
continuing practice of expansion by arguing that it has simultaneously cut more participation
opportunities for men by eliminating the men’s lacrosse team. As OCR has explained, “[c]uts in
10
Plaintiffs believe that West Chester University will also be unable to prove that the
promise to add women’s golf was “demonstrably responsive to the developing interests and
abilities” of women at West Chester University, as the Clarification requires. Ex. 3, Clarification
at 5. Preliminary evidence suggests that West Chester University has not offered women’s golf
as a club or intramural sport, and that Defendants did not adequately survey their current students
to determine their abilities and interests. To Plaintiffs’ knowledge there are as yet no women on
the golf team. See Clarification 7 (explaining that an institution does not satisfy the second part
of the three part test “where it merely promises to expand its program for the underrepresented
sex at some time in the future”); Favia, 812 F. Supp. at 585 (“You can’t replace programs with
promises.”)
18
the program for the underrepresented sex, even when coupled with cuts [to a proportionately
equal or greater degree] in the overrepresented sex, cannot be considered remedial because they
burden members of the sex already disadvantaged by the present program.” Clarification at 7;
see also Roberts, 998 F.2d at 830 (“[T]he ordinary meaning of the word ‘expansion’ may not be
twisted to find compliance under this prong when schools have increased the relative percentages
of women participating in athletics by making cuts in both men’s and women’s sports
programs.”); Cohen III, 879 F. Supp. at 211.
(c)
The Elimination of the Women’s Gymnastics
Team Demonstrates on its Face that West
Chester University Fails Fully and Effectively
to Accommodate the Interests and Abilities of
its Female Students.
Given that these talented Plaintiff-gymnasts have been denied an opportunity to compete
on an intercollegiate level by the elimination of their team, West Chester University will not be
able to demonstrate, under the third part of the three-part test, that the present athletic program
fully and effectively accommodates women at West Chester University. “Fully and effectively”
is a literal standard: “[i]f there is sufficient interest and ability among members of the
statistically underrepresented gender, not slaked by existing programs, an institution necessarily
fails this prong of the test.” Cohen II, 991 F.2d at 898; accord Roberts, 998 F.2d at 831-32
(rejecting the argument that a university is only obligated to accommodate the interests and
abilities of women to the same extent that it accommodates men). Moreover, when an existing
team is eliminated, a presumption arises that the educational institution is not fully and
effectively accommodating its students’ interests. As the 1996 Clarification makes quite clear,
West Chester University cannot establish its compliance with Title IX under the third part of the
three-part test absent “strong evidence” that the women’s gymnastics team lacks interest, ability
and competitive opportunities. Clarification at 9; accord Roberts, 998 F.2d at 832 & nn. 11 &
19
12; Cohen IV, 101 F.3d at 180 (citing the Clarification with approval); Cohen II, 991 F.2d at
904. West Chester University simply cannot meet this stringent standard.
The women’s gymnastics team obviously has a keen interest in continuing to compete at
the intercollegiate level. Despite the many obstacles that West Chester University has placed
before them in recent years – constantly changing coaches, late hires, no assistants, refused
access to training facilities, denied opportunities to participate in national competitions – these
dedicated women have brought this lawsuit, determined to save their sport not only for
themselves, but also for the student-athletes to come after them.
Under OCR’s 1996 Clarification, the question is whether there is sufficient interest “to
sustain an intercollegiate team”; id. at 10; accord Cook v. Colgate Univ., 802 F. Supp. 737, 748
(N.D.N.Y. 1992) (rejecting argument that student surveys showed a lack of interest in women’s
hockey generally among students where the evidence demonstrated enough interest to support a
varsity team), vacated on other grounds, 992 F.2d 17 (2d Cir. 1993). Clearly this standard is met
since seven members of last year’s team are ready to return to competition this year, and they
will be joined by one team member who was sidelined by injury last year and one student who
has transferred to West Chester University this year to be on this team, thereby bringing the team
to the same size that it was last year. (See Ex. 5, Herrmann Decl. ¶ 14.) See Roberts, 998 F.2d
at 832 (concluding that there was sufficient interest in a discontinued softball team when seven
or eight eligible members remained although four others had transferred); Favia, 812 F. Supp.
578 (finding interest based on the testimony of the named plaintiffs who did not transfer after
their teams were discontinued).
Evidence of interest among admitted and potential students is also relevant to this
assessment, since they are the source of future reinforcements to sustain the team. See Cook,
20
802 F. Supp. at 748 (considering interests expressed by prospective students); Roberts, 814 F.
Supp. at 1517 (considering data on interest among high school students in feeder schools); Favia,
7 F.3d at 336 n.7 (noting evidence that Indiana University continued to receive recruitment
letters from numerous prospective students). Plaintiff Cecile Allen and four other individuals
would also have been members of the team this year but for West Chester University’s
announcement that it was discontinuing the team. (Ex. 5, Herrmann Decl. ¶ 14; Ex. 7, Allen
Decl. ¶¶ 5-6.) Pennsylvania, the home of approximately 90 percent of West Chester University’s
undergraduate student body, has one of the highest rates of participation in the gymnastics
among high school girls (Ex. 9, Ovalle Decl. ¶ 5), demonstrating the interest in women’s
gymnastics among not only the named Plaintiffs, but also the class that they seek to represent.
Plaintiffs are also plainly able to compete at the varsity level. Two highly qualified
experts in the field of women’s athletics – Athletic Director Emerita of the University of Iowa,
Dr. Christine H. B. Grant, and Eduardo Ovalle, Head Coach of the Women’s Gymnastics Team
of the Massachusetts Institute of Technology – have reviewed the team’s most recent scores and
agree wholeheartedly that the team has the ability to compete intercollegiately. (Ex. 8, Grant
Decl. ¶ 11; Ex. 9, Ovalle Decl. ¶ 9.) Indeed, the very fact that Plaintiffs are members of a
college team demonstrates their ability: because there are few slots available at the college level
relative to the popularity of the sport among high-school aged girls in Pennsylvania and across
the nation, only the best gymnasts can make a team. (Ex. 9, Ovalle Decl. ¶¶ 7-9.) As was
previously noted, two members of the team qualified to compete in the USAG Collegiate
National Championship last year. (Ex. 5, Herrmann Decl. ¶ 12.) For four consecutive years,
including the past season, a West Chester University women’s gymnast has been named
E.C.A.C. Division II Rookie of the Year, including Plaintiffs Stephanie Herrmann and Caroline
21
Krystopolski. (Ex. 5, Herrmann Decl. ¶ 13.) The team bettered its own record on three
occasions last year, and many of the meets were closely contested. (Ex. 5, Herrmann Decl. ¶ 13;
Ex. 6, Mills Decl. ¶ 8; Ex. 9, Ovalle Decl. ¶ 13; Ex. 8, Grant Decl. ¶ 12.) The team members
each have impressive resumes demonstrating their ability to compete at the collegiate level.
Third, the women’s gymnastics team has ample competitive opportunities in its
geographical region. Last year, the women’s gymnastics team had a competitive schedule of
nine meets against nine regional gymnastics teams from all three N.C.A.A. divisions, a number
well within N.C.A.A. requirements and sport averages. (Ex. 9, Ovalle Decl. ¶ 13.) Before West
Chester University announced the team’s elimination, the coach had assembled an even more
extensive schedule for the coming season. (Ex. 5, Herrmann Decl. ¶ 14.) Defendants’ public
assertion that the team’s demise was justified because a relatively small number of Division II
schools sponsor women’s gymnastics teams (see Ex. 8, Grant Decl. Ex. B), is a smokescreen: as
Dr. Grant and Mr. Ovalle explain in their sworn declarations, the N.C.A.A. does not require
Division II women’s gymnastics teams to compete against each other, and the team’s scores
demonstrate that their opponents in the three Divisions provide them with appropriate
competition (Ex. 8, Grant Decl. ¶¶ 11-12; Ex. 9, Ovalle Decl. ¶¶ 11, 13). See Favia, 7 F.3d at
336 n.7 (noting with approval that Indiana University’s N.C.A.A. Division II women’s
gymnastics team competed against Division I schools); Roberts, 998 F.2d at 831-32 (concluding
that women’s softball team, which the University sought to eliminate, had competitive
opportunities, even though the university’s traditional rivals did not field softball teams, where
the team had played a competitive schedule in the previous season). The Northeast Region, in
which West Chester University competes, is the largest in the nation with 22 schools, including
West Chester University. (Ex. 9, Ovalle Decl. ¶ 12; Ex. 8, Grant Decl. ¶ 12.) See Cook, 802 F.
22
Supp. at 747 (finding sufficient interest to field a women’s ice hockey team where there were 16
varsity women’s hockey teams in the northeastern United States, and the E.C.A.C. sponsored a
championship). Competitive opportunities have remained relatively stable for a decade. (Ex. 9,
Ovalle Decl. ¶ 6; Ex. 8, Grant Decl. ¶ 12.)
3.
West Chester University Has Also Failed to Provide its
Female Athletes with Equivalent Treatment.
West Chester University has not only failed equally to accommodate the interests of its
female students, but it has also failed to afford them equivalent treatment. See 34 C.F.R. §
106.41(c)(2)-(10). A review of the EADA reports that West Chester University has filed in
recent years reveals that although the university has offered virtually the same number of sports
to men and women (11 men’s sports, 12 women’s sports), men’s teams have received, on
average, 56 percent of the coaches. (Ex. 8, Grant Decl. ¶ 13.) The head coaches of women’s
teams receive lower pay on average than the coaches of men’s teams, while assistant coaches of
women’s teams have been paid slightly more than one-third the average salary paid to the
assistant coach of the men’s teams. (Ex. 8, Grant Decl. ¶ 13.) Last year, the women’s
gymnastics team did not have any coach until November, and has not been given an assistant
coach in two years; while the team was without a coach, it was not permitted to practice in
University facilities. (Ex. 5, Herrmann Decl. ¶¶ 10, 13.) For these reasons alone, Plaintiffs are
likely to prevail on the merits of their Title IX treatment claim. See Pederson, 213 F.3d at 881
(finding that Louisiana State University violated Title IX when it, inter alia, compensated
coaches of women’s teams at a lower rate than coaches of men’s teams).
Another striking statistic in the EADA reports is the distribution of recruiting money
between men’s and women’s athletics. In 2001-02, West Chester University dedicated less than
38 percent of its recruiting budget to women’s teams, and the percentage was still lower in
23
preceding years. (Ex. 8, Grant Decl. ¶ 13.) OCR has recognized in its Policy Interpretation that
recruiting practices are the wellspring of equal opportunity. See Ex. 2, 44 Fed. Reg. 71417.
West Chester University virtually guarantees that its female students will never achieve
substantial proportionality of athletic opportunities or the full and effective accommodation of
their interests and abilities when it devotes the lion’s share of its recruiting resources to getting
men for the men’s teams. (Ex. 8, Grant Decl. ¶ 13.) See also Pederson, 213 F.3d at 878
(castigating LSU for its hubris in asserting that female students were less interested in athletics
when the evidence showed LSU created the disproportion in participation among women by its
own actions).
4.
Financial Constraints Do Not Justify the Elimination of
Women’s Teams, Even in Tandem with the Elimination of
Men’s Teams, when the Institution Is Violating Title IX.
Defendants will doubtlessly argue that they were forced to take the action that they did
because budget cuts had been imposed on them from above, and in the face of this situation they
acted equitably in cutting one men’s and one women’s team. The courts that blazed this area of
the law have rejected this argument. Indeed, the facts of this case are strikingly similar to the
landmark cases of Favia and Cohen. In both instances, the universities in question – West
Chester University’s sister college, Indiana University, and Brown University – eliminated or
demoted the women’s gymnastics teams as part of larger, university-wide budget cuts brought
about by financial problems. See Cohen I, 809 F. Supp. at 981 (explaining that the decision to
eliminate four teams from varsity status was made in response to a university-wide directive to
cut 5-8 percent from the budget); Favia, 812 F. Supp. at 580 (relating that the Department of
Athletics was instructed to reduce its budget when the school lost substantial state and federal
aid). In both instances, the universities arguably thought that they acted equitably in cutting two
men’s teams and two women’s teams. See Cohen I, 808 F. Supp. at 981; Favia, 812 F. Supp. at
24
580. And in both instances, the courts concluded that they violated Title IX in cutting the
women’s teams. See Cohen III, 879 F. Supp. at 214 (holding Brown in violation of Title IX after
a trial on the merits); Favia, 812 F. Supp. at 578 (concluding that plaintiffs have established a
likelihood of success and granting a preliminary injunction reinstating the women’s teams).
As this Court has previously stated, “[F]inancial concerns alone cannot justify gender
discrimination.” Haffer v. Temple Univ., 678 F. Supp. 517, 530 (E.D. Pa. 1987). Accordingly,
“Title IX does not provide for any exception to its requirements simply because of a school’s
financial difficulties. In other words, a cash crunch is no excuse.” Favia, 812 F. Supp. at 583.
In a situation such as this, where the female students of West Chester University already receive
a smaller share of the sports pie than they are entitled to under Title IX, the law does not demand
that they sacrifice the inadequate opportunities they do have when financial troubles arise. See
Cohen II, 991 F.2d at 905 (affirming order granting preliminary injunction restoring women’s
teams).
5.
Courts Have Granted Injunctive Relief on Virtually
Identical Facts.
In Title IX cases involving requests for injunctive relief under facts very similar to the
present situation at West Chester University, the First, Third and Tenth Circuits upheld the
issuance of injunctions restoring women’s athletic teams. See Favia, 7 F.3d 332 (3d Cir. 1993)
(denying motion to modify preliminary injunction to substitute women’s soccer for women’s
gymnastics); Roberts, 814 F. Supp. 1507 (D. Colo. 1993) (granting permanent injunction
restoring women’s softball team), aff’d, 998 F.2d 824 (10th Cir. 1993); Cohen I, 809 F. Supp.
978 (D.R.I. 1992) (granting preliminary injunction and ordering the university to restore
women’s varsity gymnastics and volleyball teams to university-funded varsity status), aff’d, 991
25
F.2d 888, 906, 907 (1st Cir. 1993) (finding maintenance of the teams to be appropriate
remediation).
In light of West Chester University’s decision to eliminate the women’s gymnastics team,
and the applicable law interpreting the obligations of educational institutions receiving federal
funds under Title IX, the Plaintiffs are likely to prevail on the merits of this action. Preliminary
injunctive relief is, therefore, warranted on this basis.
C.
Plaintiffs Will Suffer Irreparable Injury If this Court Does Not
Immediately Restore Women’s Gymnastics.
Plaintiffs seek preliminary injunctive relief because their opportunity to participate in
intercollegiate athletics is in imminent danger. Gymnastics competitions begin in January (Ex. 9,
Ovalle Decl. ¶ 15; Ex. 5, Herrmann Decl. ¶ 10) and the team must begin to train for the season
by the end of the month (Ex. 6, Mills Decl. ¶ 8; Ex. 5, Herrmann Decl. ¶ 10). Although there is
still time to put together a schedule of meets, thanks in part to the good will of the gymnastics
community (Ex. 9, Ovalle Decl. ¶ 15; Ex. 5, Herrmann Decl. ¶ 17), the likelihood decreases with
each day that passes. From the day that West Chester University announced that it was
discontinuing the team, Plaintiffs and their parents have campaigned hard to have the teams
reinstated, reaching out not only to the gymnastics community but also to OCR. When it became
apparent that OCR could not act in time to save the season, Plaintiffs hired their present
attorneys at Trial Lawyers for Public Justice, who represented the successful litigants in the
Haffer, Favia and Cohen cases. Plaintiffs’ lawyers also tried to resolve this matter expeditiously
with Defendants, thereby avoiding the necessity of intervention by this Court. Sadly, Plaintiffs’
efforts have been for naught, and Plaintiffs now look to the Court to save them from the
irreparable loss of their fleeting opportunity to participate in varsity sports.
26
As the Declarations of Stephanie Herrmann, Carmen Mills and Cecile Allen eloquently
testify, Plaintiffs have devoted their lives to this sport. Collegiate competition is the culmination
of their careers. Under N.C.A.A. rules, their chance to compete ends with their graduation.
(Ex. 8, Grant Decl. ¶ 14; Ex. 9, Ovalle Decl. ¶ 10.) Two of the Plaintiffs, Carmen Mills and
Stephanie Herrmann, are seniors and will forever lose their last chance to compete unless a
immediate relief is granted for even the speediest trial cannot occur before their season is gone.
See BP Chems., 229 F.3d at 263. Similarly, the other Plaintiffs will lose precious years of
eligibility as the case progresses to trial. There are other costs, too. Plaintiffs simply cannot
afford to pay the expenses associated with practicing, and as each day passes without training
they lose their hard-earned skills, decreasing their competitive ability and increasing the risk of
serious injury. (Ex. 5, Herrman Decl. ¶ 16; Ex. 6, Mills Decl. ¶ 8.) Competition in the private
clubs at the collegiate level is not comparable to intercollegiate competition. (Ex. 5, Herrmann
Decl. ¶ 16.) With so many elite gymnasts vying for the 1440 spots on collegiate teams
nationwide, the chances that Plaintiffs could transfer to another school, gain a slot on the team,
and receive a comparable amount of competition time are virtually non-existent. (See Ex. 9,
Ovalle Decl. ¶ 10; Ex. 7, Allen Decl. ¶¶ 6-7.) No amount of money can compensate Plaintiffs
for the loss of this opportunity to engage in intercollegiate competition. See Roberts, 998 F.2d at
833 (concluding that monetary relief was inadequate where “defendant’s continuing violation of
Title IX operates to deprive plaintiffs of the opportunity to play softball”). Courts have
recognized the loss of opportunity to compete in athletics to be irreparable injury. See Butts v.
Nat’l Collegiate Athletic Ass’n, 600 F. Supp. 73, 76 (E.D. Pa. 1984), aff’d, 751 F.2d 609 (3d Cir.
1984); McHale v. Cornell Univ., 620 F. Supp. 67, 69 (N.D.N.Y. 1985); Carnes v. Tenn.
Secondary Sch. Athletic Ass’n, 415 F. Supp. 569, 572 (E.D. Tenn. 1976). As noted above, in the
27
context of Title IX, two courts have specifically concluded that members of discontinued
women’s varsity teams had shown irreparable harm and were entitled to preliminary relief. See
Cohen II, 991 F.2d 904-05; Favia, 812 F. Supp. at 583. As the Favia court stated, “The
opportunity to compete in undergraduate interscholastic athletics vanishes quickly, but the
benefits do not. We believe that the harm emanating from lost opportunities for the plaintiffs are
likely to be irreparable.” Id.
The team, too, will be irreparably harmed unless it is restored to full varsity status. To
maintain its viability, the team must recruit new members capable of competing at the
intercollegiate level and maintain consistent, high caliber coaching. West Chester University
had, in fact, recruited five new members for the coming season, but lost four, along with the
coach, when the university announced the elimination of the women’s gymnastics team. As the
Cohen court recognized, these types of harms are irreparable and far outweigh the relatively
minor financial impact on the university. See Cohen I, 809 F. Supp. at 997-1000 (finding that
the Plaintiffs would suffer irreparable harm if forced to continue to compete as a donor-funded
team, because the team could not recruit varsity-caliber athletes, competitive opportunities were
lost and the team would be unable to raise the funds necessary to retain its coach).
D.
West Chester University Will Not Suffer Irreparable Harm If
Preliminary Injunctive Relief Is Granted and the Harm to
Plaintiffs Far Exceeds Any Putative Harm to West Chester
University.
West Chester University cannot point to any harm that it will suffer, let alone any
irreparable harm, if it is ordered to restore the women’s gymnastics team. The expenses in
fielding the team are negligible when compared to West Chester University’s entire budget. See
Cohen I, 809 F. Supp. at 1000 (contrasting the cost of restoring two teams to the university’s
total budget). Assuming that the elimination of the women’s gymnastics team accounted for 100
28
percent of the $98,000 reportedly trimmed from the Athletic Department budget in the coming
year – an impossibility given the elimination of the men’s lacrosse team – this amount is a drop
in the bucket compared to the total revenues that West Chester University reported in 2001-02 of
$133,637,854. (Ex. 8, Grant Decl. Ex. A, Table 10.) Moreover, even if this small expense were
regarded as a harm to West Chester University, it pales in comparison to the irreparable harm
that will be done to Plaintiffs’ interests, as described above, if they are deprived of their
irreplaceable years of intercollegiate eligibility.
E.
The Public Interest Supports Preliminary Injunctive Relief.
The public interest favors the implementation of relief necessary to prevent gender
discrimination and activity that violates Title IX. As the Favia court declared, “The public has a
strong interest in the prevention of any violation of a constitutional right.” 812 F. Supp. at 585
(finding the public interest favored entry of a preliminary injunction restoring women’s
gymnastics and field hockey teams); see also Cohen I, 809 F. Supp. at 1001 (finding that the
public interest would be served by restoring the women’s gymnastics and volleyball teams to
university-funded, varsity status). No counterbalancing interest governs this aspect of the case,
and the Court should therefore enter preliminary injunctive relief.
F.
Plaintiffs Seek an Expedited Discovery Schedule and Hearing.
As stated above, Plaintiffs need immediate relief to preserve the chance to compete this
season and therefore respectfully request that the Court hold hearings on their Motion before the
end of the month. Plaintiffs believe that they will need only limited discovery in order to prepare
for a hearing on their motion for a preliminary injunction, and have listed the specific documents
that the seek in the Motion. All of these requests are tailored as narrowly as possible to obtain
information relevant to the three-part test described above, and to prepare for defenses that
Defendants may assert. Accordingly, Plaintiffs respectfully request that the Court immediately
29
enter the proposed scheduling order appended to this Motion, order production of the documents
listed and setting a date an immediate preliminary injunction hearing.
IV.
CONCLUSION
For the foregoing reasons, this Court should enter a preliminary injunction directing West
Chester University to restore the women’s gymnastics team and immediately hire a qualified
coach for the team.
Respectfully submitted,
TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
By: ____________________________________
William T. Hangley
Sharon F. McKee
Attorney I.D. Nos. 03533, 81499
HANGLEY ARONCHICK SEGAL & PUDLIN
One Logan Square, 27th Floor
Philadelphia, PA 19103
(215) 568-6200
(215) 568-0300 (facsimile)
Leslie A. Brueckner
TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
1717 Massachusetts Avenue, NW, Suite 800
Washington, DC 20036-2001
(202) 797-8600
(202) 232-7203 (facsimile)
Attorneys for Plaintiffs
Dated: September 4, 2003
30