(1976); Croteau v. Fair, 686 F.Supp. 552, 553 (E.D.Va. 1988).
As a preliminary matter, it has been urged by Colgate that this action should immediately fail for two reasons. First, that Title IX and 34 C.F.R. § 106.41 only prohibits discrimination in an athletic program as a whole, and the complaint does not allege, nor does the evidence herein create, a question of fact that there has been any gender discrimination in the overall athletic opportunities afforded women at Colgate. Colgate maintains that the plaintiffs' allegation that its 1988 decision to retain women's ice hockey as a club sport resulted from gender discrimination does not constitute an indictment of the entire athletic program at Colgate, and therefore, Colgate is not in violation of Title IX. Second, and in the alternative, if the court rejects that argument, Colgate asserts that it would be improper to compare a women's club team with a men's varsity team. Defendant's Trial Memorandum, at 2. Both arguments are unpersuasive.
Colgate first contends that there has been no evidence introduced that the overall athletic program discriminates against women, and that therefore no finding can be made that they have violated Title IX. However, based upon the evidence presented, Colgate has spent far more on men's sports than women's sports over the years. Colgate now sponsors twelve varsity men's sports and eleven varsity women's sports. If football is excluded, then there are eleven varsity sports for each gender. Making a comparison of the eleven varsity sports for each gender in 1990-1991, shows a budget for men's varsity sports of $ 380,861.00, and for women's varsity sports of $ 218,970.00. Plaintiffs' Exhibit "11". With football included, (Cf. Blair v. Washington State University, 740 P.2d 1379 (1987) (concluding that football should be included in a comparison of athletic programs)), the total budget for men's varsity sports was $ 654,909.00. Id.2 Many of the same sports receive comparable funding, but the overall picture is definitely in favor of the men. Therefore, it is ironic that Colgate stands behind its overall program in an effort to prevent a comparison of individual teams.
Although unequal expenditures does not by itself constitute a violation of Title IX, section 106.41 permits the Assistant Secretary to consider "the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex". 34 C.F.R. § 106.41(c).
Colgate has cited no cases which limit the authority to determine whether a university offering separate sex sport's teams is violating Title IX. The Statute and Regulations, however, invite a comparison between separate teams in a particular sport because they are designed to protect not only a particular class of persons, but individuals as well.
Section 1681 states that "no person. . . [shall], on the basis of sex, be excluded . . . be denied . . . or be subjected to discrimination . . .". 20 U.S.C. § 1681(a) (emphasis added). The same is true of 34 C.F.R. § 106.41. Otherwise it would be of little consequence for a women's basketball player to know that the overall athletic program is nondiscriminatory if her team is discriminated against through funding or otherwise, in comparison to men's basketball. In a similar manner, it would be little solace for a male member of an under-funded and otherwise discriminated against men's volleyball team, as opposed to a women's volleyball team, to know that the overall athletic program was technically in compliance with Title IX. See Gomes v. Rhode Island Interscholastic League, 469 F.Supp. 659 (D.R.I. 1979), vacated as moot, 604 F.2d 733 (1st Cir. 1979).
Colgate also argues that comparing a women's club team to a men's varsity team is comparing "apples to oranges". See Haffer 678 F.Supp. at 528, n.11. However, since Colgate controls whether or not any women's club team ever becomes a varsity team, under such reasoning, simply by refusing to elevate a club team to varsity status, Colgate could always prevent an analysis or comparison of teams to determine if it was engaging in disparity of treatment to women. The operative word is team not "club" or "varsity". It is the women's club ice hockey team versus the men's varsity ice hockey team. Section 106.41(b) allows universities to sponsor "separate teams for members of each sex". (Emphasis added). Finally, section 106.41(c) states: "unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but . . . . the failure to provide necessary funds for teams for one sex [may be considered] in assessing equality of opportunity for members of each sex." (Emphasis added). Colgate clearly sponsors separate ice hockey teams for each gender. Therefore, this court has the authority to compare the two ice hockey programs.
The standard under Title IX provides that unless otherwise allowed, "equivalent benefit and opportunities must be provided," 44 Fed. Reg. 71421 (1979), to men and women. As stated in 34 C.F.R. § 106.41(c)(1): "In determining whether equal [athletic] opportunities are available [to men and women] . . . consider . . . whether the selection of sports and levels of competition effectively accommodates the interests and abilities of members of both sexes." In making this determination, there is little guidance for the method to use in concluding whether there is a violation of Title IX. The parties have urged that the three step process for determining gender discrimination used in Title VII cases be adopted. This appears to be an appropriate approach in view of the fact that there is no direct proof of intentional discrimination by Colgate.
Applying the Title VII method requires the application of the familiar burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252, 253, n.6 (1981). Under this analysis, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff succeeds in establishing a prima facie case, then the burden shifts to the defendant to come forward with evidence of some legitimate nondiscriminatory reasons for its conduct. If the defendant establishes legitimate reasons for its decisions, then the plaintiffs, in order to prevail, must show that the reasons advanced by the defendant are pretextual or a coverup for a discriminatory decision.
Although modifying the McDonnell-Burdine standard, the plaintiffs, in order to establish a prima facie case, must demonstrate the following: (1) that the athletic department at Colgate is subject to the provisions of Title IX; (2) that they are entitled to the protection of Title IX; and (3) that they have not been provided "equal athletic opportunities". If plaintiffs prove a prima facie case, they will have established a rebuttable presumption that Colgate has violated Title IX. This presumption, however, will disappear from the case if Colgate comes forward with legitimate nondiscriminatory reasons for its decision not to upgrade the women's ice hockey team to varsity status. Once Colgate has introduced such evidence, in order to prevail, the plaintiffs must prove that Colgate's proffered reasons are merely a pretext.
As stated above, the parties do not dispute the contention that Colgate and its athletic department are subject to Title IX, nor has it been contested that the plaintiffs are not entitled to the protection of Title IX. Therefore, the plaintiffs must prove that Colgate has not provided them with equal athletic opportunities. It is to this determination that the court now turns its attention.
IV. Plaintiffs' Prima Facie case.
In support of their claim that they have not been provided with equal athletic opportunities, the plaintiffs have introduced six examples in areas which they contend establish that Colgate has discriminated against them in violation of Title IX. These areas, or factors, are found in 34 C.F.R. § 106.41(c). This regulation lists a total of ten factors that the Department of Education may consider to determine if equal athletic opportunities are available to both sexes. 34 C.F.R. § 106.41(c)(1-10).
The basic claim for discrimination between the women's club team and the men's varsity team is the difference in financial support received by each from Colgate. Evidence has been submitted for the years 1985-86 through 1990-1991. The court will use the last year (1990/91) to illustrate the difference in funding between the two teams. Plaintiffs' Exhibits "7", "11'", "12" and "13". The other years produce similar results. The chart below sets forth the 1990/91 budget n6 for the men's varsity hockey team and the women's club ice hockey team.
Expenses $ 129,397.00 Budget allocation $ 4,080.00
Support group 22,664.00 Championships 520.00
Coaches' salaries 58,500.00
Total $ 238,561.00 Total $ 4,600.00
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