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COOK v. COLGATE UNIV.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


September 28, 1992

JENNIFER BALDWIN COOK, MELISSA EHLERS, CHRISTINE PRICE THAYER JAQUES, JULIE WOLFF and MICHAEL FITZGERALD, Plaintiffs,
v.
COLGATE UNIVERSITY, Defendant.

HURD

The opinion of the court was delivered by: DAVID N. HURD

DAVID N. HURD United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

 I. Introduction.

 The plaintiffs are all female (Michael Fitzgerald, student coach of the women's club ice hockey team, withdrew from this action), and former students at the defendant Colgate University ("Colgate"), located in Hamilton, New York. They are also former members of the Colgate women's club ice hockey team.

 The complaint was filed on April 10, 1990, and Colgate filed an answer on June 18, 1990. In the complaint, the plaintiffs allege that Colgate's 1988 decision to maintain women's ice hockey as a club sport, violated Title IX, 20 U.S.C. 1681 et seq., as amended by the Civil Rights Restoration Act of 1987, the regulations of the Department of Education, 34 C.F.R. Chapter 1, subpart D, § 106.1 and § 106.41, and the Fifth and Fourteenth Amendments of the United States Constitution. Colgate denied the material allegations in the complaint.

 The court conducted a three day nonjury trial on March 31, April 1 and 2, 1992, in Utica, New York. The parties filed post-trial proposed findings of fact and conclusions of law. This Memorandum-Decision and Order constitutes the court's findings of fact and conclusions of law.

 II.Background.

 Until 1970, Colgate was an all male school. In that year, women students were admitted for the first time. Enrollment of women has increased steadily until the present day, when it is almost fifty per cent (50%). In 1990/91, the total enrollment was 2,690, with 1,450 men (53%), and 1,240 women (47%).

 Colgate has had a strong competitive men's varsity ice hockey team for many years. Together with men's football and men's basketball, it is an "emphasized" sport, which means it receives additional financial aid and other support. In 1990, women's basketball also became an "emphasized" sport. The men's varsity ice hockey team is a member of the Eastern Collegiate Athletic Conference (ECAC) and competes in the National Collegiate Athletic Association (NCAA) tournament. It has always been a leading team in the Conference, and has challenged for the Division I NCAA championship in recent years.

  Women's ice hockey at Colgate has had no such tradition or illustrious past. However, a club team was formed shortly after women were first admitted, and the team has been competitive in the club league since that time.

 In addition to its twenty-three varsity teams, Colgate also sponsors between eighteen to twenty club teams. Club teams are somewhat informal, principally run by students, and range from ultimate frisbee to rugby. It is obvious that a varsity team has much greater status, both within and without the university community, than a club team. A varsity team is an "official" representative of the university with full-time coaches, designated schedules, rules, and regulations. A varsity team is provided equipment, practice facilities, and travel accommodations. A club team is much more "unofficial", with more informal schedules, practices, and competition. Its equipment, facilities, and travel are of a more "make shift" nature.

 In 1979, 1983, 1986, and 1988, the women's club ice hockey team applied for varsity status. In order for a sport to attain varsity status at Colgate, an application must be made to the Committee on Athletics which consists of faculty and student members, with the Director of Athletics as a nonvoting advisory member. If an application for varsity status is approved by the committee, and with the consent of both the Director of Athletics and the Dean of the Facility, the proposal is then presented to the President for final approval. If an application is rejected by the committee, the applicants may reapply in two years.

 The women's ice hockey applications were rejected in all four years. In 1988, members of the women's ice hockey team presented a detailed twenty-nine page proposal. Plaintiffs' Exhibit "15". On November 7, 1988, plaintiff Cook, with two other hockey players, made an oral presentation to the committee, followed by some questions and answers. After a discussion by the committee, a vote was postponed until the next meeting. On November 14, 1988, the committee unanimously voted to deny the application and elected to maintain women's ice hockey as a club rather than a varsity sport. The plaintiffs were notified in writing regarding the committee's decision. Plaintiffs' Exhibit "4". The committee gave the same four reasons for the rejection as it had given in both 1983 and 1986:

 (1) Women's ice hockey is rarely played on the secondary level;

 (2) Championships are not sponsored by the NCAA at any intercollegiate level;

 (3) The game is only played at approximately fifteen colleges in the east; and

 (4) Hockey is expensive to fund, and would heavily impact a total intercollegiate program by requiring: increased locker room space, large budget, a full-time coach, a trainer, increased training room load, increased equipment room size, heavy laundry demand, and coach supported financial aid.

 Plaintiffs' Exhibit "3". At trial, Colgate advanced two additional reasons, to wit, a lack of general student interest in women's ice hockey, and a lack of ability by the members of the women's club ice hockey team. This action was commenced by the plaintiffs as a result of that 1988 decision, seeking elevation to varsity status, compensatory damages, and attorneys' fees.

 III. Legal Standards.

 Title IX of the Education Amendments of 1972, Pub.L. 92-318, as amended, 20 U.S.C. § 1681, et seq., prohibits gender discrimination in education programs or activities receiving federal financial assistance. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 514 (1982). At issue here is Title IX's "program specific" prohibition of gender discrimination which states in part:

 Prohibition against discrimination;

 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, . . . .

 20 U.S.C. 1681(a).

 Colgate is an educational institution receiving Federal financial assistance, and thus its athletic department is subject to Title IX. *fn1" The plaintiffs, as women whose past athletic opportunities have been restricted, are entitled to the protection of Title IX.

 In addition to the text of Title IX, the Department of Education has promulgated regulations governing the administration of programs that receive federal funding. The regulations applicable to this case are found at 34 Code of Federal Regulations § 106.41 et seq. as follows:

 § 106.41 Athletics.

 (a) General. 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 recipient shall provide any such athletics separately on such basis.

 (b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

 (c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors:

 (1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;

 (2) The provision of equipment and supplies;

 (3) Scheduling of games and practice time;

 (4) Travel and per diem allowance;

 (5) Opportunity to receive coaching and academic tutoring;

 (6) Assignment and compensation of coaches and tutors;

 (7) Provision of locker rooms, practice and competitive facilities;

 (8) Provision of medical and training facilities and services;

 (9) Provision of housing and dining facilities and services;

 (10) Publicity.

 Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.

 Plaintiffs contend that Colgate's refusal to upgrade the women's club ice hockey team violated Title IX and the Fifth and Fourteenth Amendments. Initially, Title IX and the implementing regulations can be violated without showing a specific intent on the part of the educational institution to discriminate against women. Haffer v. Temple University of Commonwealth System of Higher Education, 678 F.Supp. 517, 539 (E.D. Pa. 1987). However, in order to establish a violation of the Fourteenth Amendment in a gender discrimination case, intentional acts must be demonstrated. See Cf. Washington v. Davis, 426 U.S. 229 (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). *fn3"

 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. *fn4" 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. *fn5"

 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).

 1. Expenditures. 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. Men Women Expenses $ 129,397.00 Budget allocation $ 4,080.00 Support group 22,664.00 Championships 520.00 Coaches' salaries 58,500.00 28,000.00 Total $ 238,561.00 Total $ 4,600.00

19920928

© 1992-2004 VersusLaw Inc.



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