College's Attempt To Cut Volleyball Blocked Again

CHRISTIAN NOLAN

The Connecticut Law Tribune

03-08-2013

Quinnipiac University officials can't get rid of the school's women's varsity volleyball team no matter how hard they try.

The Hamden-based school first tried to eliminate the team for budgetary reasons in 2009 and replace it with a competitive cheer squad. But a federal judge said competitive cheer was not a sport and that the move would violate Title IX , the federal law that, among other things, requires colleges that receive federal funds to provide equal athletic participation opportunities for men and women.

The university responded by adding women's rugby and "acrobatics and tumbling" — known to its fans as "acro" — to try to even out the number of sports team roster spots available to female and male athletes.

Then Quinnipiac went back into court, hoping those additions would allow for the elimination of women's volleyball. But last week, U.S. District Court Judge Stefan Underhill wasn't fully buying into acro and denied the university's motion to lift an injunction that prevents it from cutting volleyball.

"At most, the University has shown that it has made some progress toward the goal of effective accommodation, but those modest adjustments over the past two years have brought only incremental improvements in gender equity, not full and lasting compliance with Title IX," Underhill wrote.

Quinnipiac spokeswoman Lynn Bushnell issued a statement saying the school is disappointed with the ruling, but "remains committed to its long-standing plans to continue expanding opportunities in women's athletics."

The National Collegiate Acrobatics and Tumbling Association website describes the activity as a "new sport" that embodies "gymnastic skill sets." But it lists only six colleges nationally currently fielding teams. While Judge Underhill acknowledged that improvements had been made in terms of more cohesive rules of competition and a better championship format, he noted that acro is not recognized by the National Collegiate Athletic Association as a sport, or even as an emerging sport.

"And without that recognition, acro lacks what every other varsity men's team sponsored by Quinnipiac enjoys: the chance to participate in an NCAA-sponsored championship," the judge wrote.

Underhill also found that the rugby team lacked quality competition because only four other colleges nationally offer women's rugby as a varsity sport. That meant Quinnipiac's team spent most of its inaugural season playing club teams.

Thomas B. Mooney, a Shipman & Goodwin partner specializing in education law, said Underhill's latest ruling, after Quinnipiac made efforts to comply, "shows how seriously the courts take Title IX."

"My take away [from the decision] is the courts are going to be pretty rigorous in reviewing compliance of Title IX," Mooney said.

Another lawyer not involved directly in the dispute said schools need to think about the legal ramifications of their budgetary decisions. "As schools are facing fiscal issues, they're looking to cut some of the non-revenue generating sports," said Ronald E. Kowalski II, of Stamford's Cacace, Tusch & Santagata. "So it's important that any institution in that position be mindful of their obligations under Title IX."

After Quinnipiac announced plans to eliminate women's volleyball for budgetary reasons in 2009, the American Civil Liberties Union of Connecticut filed suit on behalf of the university's female athletes. The next year, Underhill ruled for the plaintiffs. He ordered the university to stop discriminating against female athletes and to maintain the women's volleyball team until it can prove compliance with Title IX.

In August 2012, the U.S. Court of Appeals for the Second Circuit upheld that ruling. The latest ruling rejects the university's argument that since the 2010 decision it has satisfied Title IX requirements by adding sports teams for women.

"This decision not only continues to protect the opportunities for female athletes at Quinnipiac, it provides guidance for colleges and universities across the country that equal athletic opportunity for women means equivalent and meaningful opportunities for real competition," said Sandra Staub, legal director of the American Civil Liberties Union of Connecticut, in a statement.

Jonathan B. Orleans, a lawyer from Pullman & Comley in Bridgeport, who assisted the ACLU in the case, along with Alex V. Hernandez, of the same firm, said it was noteworthy that Judge Underhill did more than compare how many positions on varsity sports teams were open to Quinnipiac's male and female athletes.

"The court went on to analyze the quality of competition offered to men's teams and women's teams, and found that women at Quinnipiac were not, on the whole, provided with competitive opportunities equivalent to those provided to men," said Orleans. "This is one of very few, if not the only, court decisions to address this particular aspect of Title IX's requirements."•