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By: Candice Jackson and Wayne Melnick
As colleges and universities face budget shortfalls that may be especially sharp due to challenges posed by COVID-19, two pre-litigation settlements reached by Clemson University last week highlight the risks to educational institutions of patching budget deficits by cutting sports teams. Citing financial challenges caused by COVID-19, Clemson announced in November 2020 that it planned to discontinue its men’s cross country and track and field programs, projecting a cost savings to the university of about $2 million.
On March 12, 2021, attorneys for a group of Clemson men’s varsity outdoor cross country and track and field athletes sent a pre-litigation demand letter to Clemson, arguing that Clemson’s elimination of those teams violated Title IX (which prohibits sex discrimination in education programs and activities, specifically including athletic activities). The argument was that under Clemson’s status quo, Clemson’s provision of undergraduate intercollegiate athletics teams resulted in an almost-zero discrepancy between the number of male athletes and number of female athletes, which corresponded with Clemson’s overall undergraduate population of an almost-even split between male students and female students. The attorneys argued that if Clemson cut those teams, the discrepancy between number of male athletes and female athletes would increase by more than 1,300%, without the kind of circumstance under which such a disproportionality might pass muster under Title IX (such as where there is not significant enough “interest and ability” among athletes of one sex to achieve the “substantial proportionality” that Title IX compliance requires). Invoking the judicially implied right of private action under Title IX, the demand letter threatened a lawsuit seeking an injunction reinstating the varsity teams.
A few days later, attorneys representing members of Clemson’s women’s rowing, cross country, and track and field teams sent Clemson a demand letter threatening class action litigation under Title IX alleging that Clemson systematically failed to provide female athletes with equal athletic opportunities. The letter cited data showing that in the preceding year Clemson provided only 39% of its athletic financial aid to female athletes, and only 16.7% of Clemson’s recruiting expenses were dedicated to recruiting for women’s teams.
On April 22, 2021, Clemson entered into coordinated settlement agreements with both groups of potential plaintiffs. Clemson agreed to (1) restore the men’s cross country and track and field teams immediately; (2) conduct a review of all its intercollegiate athletic programs and formulate a “gender equity plan” by July 1, 2022; (3) publicly announce that Clemson was voluntarily retaining its men’s indoor cross country and track and field teams, and that it pledges to expand women’s opportunities on an equitable basis; (4) refrain from eliminating any men’s or women’s teams until its gender equity plan is finalized and such eliminations would not violate Title IX; and (5) institute policy changes designed to provide benefits more equitably to female athletes (e.g., equalizing as between male and female athletes the type of meal plans, sports equipment, pool access, flights to away games, sports medicine services, and other benefits provided by Clemson to its athletes).
It is, to say the least, unusual for a significant, contested legal issue to be raised and resolved in the span of a few weeks. Several factors likely contributed to the quick, substantial resolution and illustrate trends in Title IX sports claims.
First, Clemson is the latest in a string of institutions of higher education to face similar claims that cuts to sports teams violate Title IX (although, interestingly, this appears to be the first time that male athletes have successfully argued Title IX violations based on sports program eliminations). Public and private institutions, such as the College of William and Mary, and UNC-Pembroke, have over the last couple of years resolved similar claims pre-litigation, and courts have not been shy about granting injunctions under Title IX for institutions that refuse to reconsider cuts that result in significant sex-based disproportionality. With tight-knit groups of lawyers on the look-out for these kinds of potential Title IX violations, and with social media sharpening student, alumni, and media interest in the topic of college sports generally, what used to be routine budget decisions now garner immediate, intense scrutiny.
Second, in Clemson’s case, its elimination decision in November 2020 led to charges that Clemson had selected teams with higher proportions of Black athletes for elimination, leading to a complaint filed with the U.S. Department of Education’s Office for Civil Rights alleging a Title VI violation (that complaint is still pending). This intersection between Title IX and Title VI (which is not confined to the realm of sports programs) doubles an institution’s risk of discrimination allegations.
Third, the female athletes who demanded sex-based equitable treatment from Clemson explicitly and publicly supported their male counterparts’ Title IX allegations, reflecting a new dynamic in Title IX sports situations: insistence by female and male athletes that their institution give more benefits to all athletes rather than pit male and female athletes against each other to compete for a university’s resources. This trend differs from the typical fact pattern throughout Title IX’s decades of spurring sex-based equality in athletic opportunity, where frequently Title IX sports enforcement has fostered a battle of the sexes, with excessive focus on sex parity resulting in reducing men’s opportunities rather than increasing women’s opportunities. While there is little legal significance to whether or not female and male athletes “team up” in these situations, this dynamic does increase the pressures an institution faces in the media and in the court of public opinion.
This pair of Clemson University Title IX settlements reinforces the challenges that educational institutions face when trying to make financial decisions without violating – or at least creating the perception of violating – non-discrimination laws that require equal treatment on the basis of sex (Title IX) and race (Title VI). While non-revenue generating sports programs may seem like low-hanging fruit to an institution facing severe revenue problems, and such decisions are almost always made without any purpose or intention of negatively impacting groups of athletes based on sex or race, the risks inherent in these decisions require careful consideration.
Freeman Mathis & Gary’s Education Practice Team advises educational institutions in risk identification and mitigation strategies. For more information about this topic, please contact Candice Jackson or Wayne Melnick.