24 minute read
Title IX
Hell or High Water
University of Iowa women swimmers and divers are back in the pool, but say they’re still seeking accountability from the athletic department that left them out to dry. By Izabela Zaluska
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There were “mixed emotions” when University of Iowa Athletic and diving. The other three sports were men’s swimming and diving, men’s Director Gary Barta met with the women’s swimming and div- gymnastics and men’s tennis. ing team on Feb. 15 to let them know their program, which the In an open letter, Harreld and Barta cited the financial challenges brought university had cut on Aug. 21, would be fully reinstated. on by the COVID-19 pandemic as reasons for the cuts, as well as the Big
While there was excitement and optimism over the news, there was also Ten canceling its fall football season due to the pandemic. frustration over why the announcement didn’t happen sooner, and hesita- “With the Big Ten Conference’s postponement of fall competition on tion to trust the athletic department. Swimmers Alexa Puccini and Sage Aug. 11, University of Iowa Athletics now projects lost revenue of approxOhlensehlen told Little Village they believe the decision to reinstate the imately $100 million and an overall deficit between $60-75 million this program should have been made back in December when a federal judge fiscal year,” the letter said. “A loss of this magnitude will take years to issued a preliminary injunction preventing the university from cutting the overcome. We have a plan to recover, but the journey will be challenging.” sport at the end of the current academic year. During a virtual news conference three days later, Barta reiterated the
The team had already lost six of its members—something that might impact the pandemic has had on the athletic department and said the decihave been prevented had the reinstatement announcement happened just sion to cut the four programs was “100 percent determined and driven by a couple months earlier, said Ohlensehlen, who is COVID-19.” the team’s captain. Women who stayed on the team “The financial fallout that COVID-19 caused but planned to transfer to another school at the led to the postponement, cancellation, of fall footend of the academic year, like Puccini, now have “WE’rE NOT DrOPPING ball,” Barta said. “Were it not for that, we would a “hard decision to make.” Fifteen of the team’s 35 members have put in transfers to swim elsewhere ThaT LaWSUIT BEcaUSE not have been dropping those four sports.” On Sept. 16, the Big Ten reversed its decision and several coaches have left, according to court EVEN WITh ThE and announced there would be a limited fall footdocuments. aDDITION OF a FEMaLE ball season. Barta acknowledged the limited sea“A part of our frustration was that now that the news is so late, we have to completely rebuild a SWIM TEaM, WE’rE son could decrease the financial deficit from $75 million to $60 million but said the deficit would new team, and that takes a lot,” Puccini said. “But STILL NOT cOMPLIaNT still be “catastrophic.” then also, we’re really grateful we get an oppor- WITh TITLE IX. I aM aLL “Will the announcement of football change the tunity to swim here now and that … now it is an option for other girls who want to come and swim FOr ThE aDDITION OF decisions we made? No,” Barta said on Sept. 17. Barta said during a news conference on Feb. at Iowa.” WOMEN’S WrESTLING, 16, a day after the women’s team was reinstated,
Six months earlier, Barta announced that the WOMEN’S LacrOSSE, that the university will not be able to reinstate the women’s swimming and diving team (along with the men’s swimming and diving team and two othWhaTEVEr IT MaY three men’s programs due to the ongoing financial challenges. He estimated the deficit is still er men’s programs) were going to be cut following BE. aND I’M GOING TO between $50 million and $60 million. the 2020-21 academic year. Barta delivered the news to the team in a couple of minutes and then left, leaving staff members and coaches to answer STaY ON ThIS LaWSUIT TO crEaTE aS MaNY A Fair Chance to Win questions from the athletes. The reinstatement went differently—Barta met with the women and answered their questions for POSITIONS FOr WOMEN IN aThLETIcS aS I caN.” On Sept. 25, about a month after the initial announcement, four members of the women’s swimming and diving team (who were latabout an hour and a half. Puccini said she and her er joined by two additional UI students) filed a teammates didn’t back down from asking him —SAGE OHLENSEHLEN class-action complaint in U.S. District Court tough questions, including how the move affects arguing that the university’s decision to cut the the university’s Title IX compliance. women’s program violated Title IX. The lawsuit
While UI has committed to fully reinstating the team, it still faces the named the university, Harreld and Barta as defendants. Title IX suit that was brought forward by six UI student-athletes, including Title IX is a federal law passed in 1972 that prohibits sex discrimination Ohlensehlen and Puccini. in educational institutions that receive federal funding and requires schools
“We’re not dropping that lawsuit because even with the addition of a to provide equal opportunities for male and female athletes. female swim team, we’re still not compliant with Title IX,” Ohlensehlen If universities aren’t in compliance with Title IX, they risk losing federal said. “There’s still quite a few positions that should be given to women that funding—which for Iowa could be more than $500 million. However, since aren’t, and actually, it’s enough positions to add another team. So I am all Title IX was enacted, no university has lost federal funding for violating it. for the addition of women’s wrestling, women’s lacrosse, whatever it may The six plaintiffs—swimmers Kelsey Drake, Christina Kaufman, Sage be. And I’m going to stay on this lawsuit to create as many positions for Ohlensehlen and Alexa Puccini, as well as Miranda Vermeer and Abbie women in athletics as I can.” Lyman—are arguing the university has failed to comply with three Title IX requirements, including providing female student-athletes with athletic COVID-19 and Financial Catastrophe opportunities at a rate that is “substantially proportionate” to their undergraduate full-time enrollment rate.
Barta and UI President Bruce Harreld announced on Aug. 21 that four The plaintiffs also allege that the university has failed to demonstrate a of the university’s 24 intercollegiate varsity sports programs would be “history and continuing practice of program expansion responsive to the incut following the 2020-21 academic year, including women’s swimming terests and abilities of the sex that has been historically underrepresented.”
Alexa Puccini swims the butterfly (a stroke invented at UI) during a women’s swimming and diving meet. Puccini’s biggest dream when she was growing up was to swim collegiately, and she knew since her sophomore year of high school that she wanted to swim at the University of Iowa. Courtesy of Alexa Puccini
Sage Ohlensehlen and Amy Lenderink pose after a victory over Iowa State in January 2020. Courtesy of Sage Ohlensehlen Lastly, they allege that the university has failed to show the interests and abilities of female athletes have been fully and effectively accommodated.
On Dec. 24, the plaintiffs were granted a preliminary injunction that stopped the university from eliminating the women’s swimming and diving team (or any other women’s athletic team) until the lawsuit was resolved.
“Injunctive relief is an extraordinary remedy that is not issued lightly,” U.S. District Court Judge Stephanie Rose wrote.
Rose found that the plaintiffs have a “fair chance of demonstrating the University is not, and has not been, in compliance with Title IX.” Sports gender equity experts quoted by the Des Moines Register also believe the plaintiffs have a solid case.
Rose acknowledged the financial hardships the university is facing due to the COVID-19 pandemic but offered a reminder that “financial hardship is not a defense to a [probable] Title IX violation.”
A Title IX Reckoning
The University of Iowa isn’t alone in its financial hardship. The COVID-19 pandemic has added additional strain to college athletic departments across the country. Departments have cut staff, reduced salaries and eliminated teams. More than 350 teams had been cut nationally as of November 2020.
But universities contemplating cutting a women’s team should first conduct a complete gender equity review, otherwise they might “face significant litigation risk” if they fail to take Title IX compliance into account, writes Sarah Hartley, a partner at Bryan Cave Leighton Paisner, an international law firm. Hartley also teaches sports law at the University of Colorado Law School.
Other universities—including Dartmouth, William & Mary and East Carolina—have faced pushback over possible Title IX violations after cutting their women’s swimming and diving teams, which resulted in the schools reinstating the teams and committing to developing gender equity plans to ensure Title IX compliance.
Michigan State University announced on Oct. 22 it will cut its women’s program following the 2020-21 season. MSU is facing a lawsuit from student-athletes on the school’s swimming and diving team that is similar to the lawsuit against the University of Iowa.
“I think what’s important to understand is that despite being almost 50 years past the time that Title IX was passed, I think it’s fair to say that a lot of institutions don’t have gender parity yet,” Hartley told Little Village. “A lot of different institutions are certainly trying to accommodate interest from female athletes, and that has been a work in progress, if you will. A lot of courts, when they look at compliance, look at that historical data and the trend of improvement.
“But I think if you have a student-athlete who’s actually willing to push on the Title IX issue, you’d find out quite a number of institutions could be doing better.”
UI said in the reinstatement announcement that it “continues to disagree with the claims made in the lawsuit” and the injunction. The university had asked the district court to dismiss the case, and it had also petitioned the Eighth Circuit Court of Appeals asking for the injunction to be lifted.
Judge Rose denied the university’s motion to dismiss on Feb. 23. Mark Emmert, who covers UI sports for the Des Moines Register, reported on Feb. 24 that the university was dropping its appeal to the Eighth Circuit.
Barta has previously said he was assured by a consultant prior to axing the women’s team and three other teams that the athletic department would be in compliance with
Hawkeye swimmers after a dual meet in 2017. Courtesy of Sage Ohlensehlen
Title IX.
According to Barta, the lawsuit and the injunction have “created additional uncertainty that could last several months or even years.” It was this uncertainty, he said, that prompted him to reinstate the team—not the lawsuit itself.
When asked if he would have made this decision without the lawsuit and without the injunction, Barta responded:
“The financial crisis is still real, and it’s still in front of us. When we made the decision to discontinue four sports, ... we had no intention of reinstating any of those teams. When the lawsuit occurred, we still were moving forward. When the injunction was made around the holiday season, I was still hopeful that a resolution would be made between the two sides because I knew the attorneys were talking regularly.
“It really has reached this point and the disagreements still exist. And so the reinstatement is based on that because it doesn’t look like a resolution is coming anytime soon. Again, could it last several months? Could it last a few years? I just made the decision that it was the right thing to do to move forward—reinstate the program. That gives the opportunity for current student-athletes and future student-athletes [and] staff to have certainty and move forward. So, that’s kind of how it unfolded, and that’s how it came about.”
Ohlensehlen, however, believes the lawsuit played a larger role. While she appreciated the conversation with Barta during the Feb. 15 meeting with the swim team, calling it “a great step to mending fences between the swim team and the athletic department,” she wasn’t satisfied with the answers he was giving the team.
“The reason that I’m not super happy is because I felt like the athletic department is saying they decided to reinstate the team, [and they’re] the good guys; however, I believe the reason they reinstated the team is because of the lawsuit, though they’re claiming that their decision to reinstate the team isn’t because of the lawsuit,” Ohlensehlen said.
“That’s a problem that I have right now with the athletic department moving forward is I don’t understand how we are supposed to trust them knowing that they’re only reinstating the team because a judge told them to. I know that this is going to take a lot of time to build up that trust, and I’m willing to start the process… but still, it’s going to take a lot of time to rebuild that trust that we used to have.”
Ohlensehlen said the swim team is working on a list of ways the relationship between the team and the athletic department could be mended, which will be delivered to Barta and his team.
Barta told reporters that the team is “fully reinstated,” and he has no plans to cut any other athletic teams.
“I’ve been asked why don’t I use the term ‘permanent,’” Barta said during the Feb. 16 news conference. “It’s permanent like every other Olympic sport we have. ... They are fully reinstated as full members of the athletic department, and I have zero plans to cut any sports, including women’s swimming, beyond
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this point.”
“Permanent—is that forever?” Barta continued. “I can’t predict what happens with name, image and likeness and other things happening in college sports, but yes, it is a full-fledged, nolook-back, fully reinstated moving-forward decision. Irregardless of what happens in the legal process, women’s swimming remains at Iowa.”
Attorney Jim Larew, who is representing the plaintiffs, said he believes the university should also agree to the release of the $360,000 bond required by Judge Rose that was posted by his clients at the request of the UI. The bond is to guarantee the plaintiffs will be able to pay UI’s legal costs, if the university wins the lawsuit.
As of Feb. 25, the university has not agreed to the bond release, Larew said in an email to Little Village.
A Pattern of Gender Inequality at UI
In November 2015, former senior associate athletic director Jane Meyer filed a lawsuit against the university, Iowa Board of Regents and the state of Iowa alleging she was demoted after she complained about the firing of her partner and former women’s field hockey coach Tracey Griesbaum, in addition to other differences in treatment for men and women in the athletics department.
Meyer’s lawsuit was filed under the Iowa Civil Rights Act and included five claims: gender discrimination, sexual orientation discrimination, retaliation, whistleblower violations and unequal pay.
Griesbaum, who was fired in August 2014, filed a separate lawsuit against the same defendants in March 2016. Griesbaum alleged that her firing had violated her civil rights by discriminating against her based on her gender and sexual orientation. Griesbaum specifically alleged that Barta had initiated an unfair pattern of dismissing female coaches and administrators.
A Polk County jury sided with Meyer on all five of her claims and awarded her $1.43 million in May 2017. Griesbaum’s trial was scheduled to follow three weeks later but was called off when the university announced it would settle both cases for $6.5 million, which included the $1.43 million the jury awarded Meyer.
In the settlement agreement, the university denied engaging in any acts of discrimination or relatiation.
Speaking to reporters two months after the settlement, in July 2017, Barta said he was “very confident with the decisions that we made and that I made.”
Around the same time as Griesbaum’s firing,
a complaint was filed against the university with the Office for Civil Rights (OCR) at the U.S. Department of Education. The Title IX complaint filed by four UI field hockey players alleged the university had failed to provide equal athletics opportunities to its men and women in 13 categories.
OCR conducted a four-year investigation, with federal investigators visiting the UI in April 2016 to meet with administrators, coaches and students. The investigators also toured various facilities around campus and inspected equipment.
While investigators said there was insufficient evidence to show the university favored male student-athletes, they did find disparities in how women and men were treated when it came to equipment, recruiting and locker rooms, the Gazette reported.
OCR was unable to conclude that the university was in compliance with Title IX.
The OCR suggested the university enter into a proposed voluntary resolution with the office. The matter would be considered resolved, but the university would be monitored until OCR’s questions were answered. The university sent the signed resolution agreement on Dec. 29, 2017 and learned that OCR accepted the agreement on Jan. 10, 2018.
The university presented the resolution as a victory.
“The OCR found no violation of any regulation under Title IX,” the university said in a statement. “The resolution concludes the OCR’s investigation and was effective January 10, 2018. The university has agreed to provide additional reporting through the spring to substantiate its continued compliance under Title IX.”
OCR notified UI in October 2019 that the investigation was closed after the university submitted additional reports and data to show compliance. UI provided information to OCR showing that in 2016-17, women made up 52.6 percent of undergraduate students and 52.2 percent of athletes, according to the Des Moines Register. However, how the university determined those numbers wasn’t part of the public record.
What data the university is using and how it counts its roster spots for athletes has been a focus during the swimmers’ Title IX lawsuit.
Larew said he has repeatedly asked the university to make these numbers available but has been denied access. Judge Rose, in her written order granting the preliminary injunction,
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expressed frustration over the university declining to turn their numbers over, despite requests from the plaintiffs and the court.
“Their position is especially disingenuous considering Defendants’ refusal to disclose the official Title IX data they claim exonerates the University—data they admit is discoverable but have nonetheless declined to produce in response to Plaintiffs’ request,” Rose wrote.
Rose, again, referenced the data in her Feb. 23 order denying the university’s motion to dismiss the case.
“In sum, the combination of publicly accessible data upon which [the] Plaintiffs rely and official Title IX data Defendants admit exists and concede is discoverable is enough to raise genuine factual issues that should be resolved on their merits,” Rose wrote.
Lyla Clerry, the university’s associate athletic director for compliance, said in her affidavit that UI doesn’t provide official squad lists for public review “because they contain protected student education records,” information that is protected under the Family Education Rights and Privacy Act (FERPA).
Larew believes the UI will be required to publish the numbers as litigation continues. As part of next steps, parties will provide “initial disclosures” to each other, which can be documents and other relevant information to the case, Larew said. The discovery process will then follow, with the parties engaging in interrogatories, requests for documents and depositions of witnesses.
Discovery could take up to a year, but Larew said the plaintiffs should be getting documents and data “soon” under the initial disclosure rules.
Larew told the Register he thinks the numbers for women are inflated, specifically in rowing, cross country and softball.
Reporting from Henry Cordes of the Omaha World-Herald published in 2019 found that a number of schools, including many known for college football like UI, report large squads in women’s rowing.
Cordes found that athlete numbers were inflated primarily by “novice” rowers who are recruited from the general student body to try the sport. If the women are on the roster at the time of the team’s first competition, the university can count them as female athletes.
The national average for a women’s rowing team in 2018 was about 63 rowers. At the start of the 2017-18 season, Iowa reported 91 rowers. Cordes reported it was likely 18 never competed in a race and 18 additional rowers weren’t on the official roster.
Barta denied the accusation that UI was inflating athlete numbers during his comments on Feb.
16, saying the university uses OCR’s methodology of counting and is committed to being compliant with Title IX. When asked by a reporter if the UI is prepared to go into open court and show the numbers, Barta said he’s “going to let the attorneys continue that process.”
“There’s disagreement between the two sides, and so that will continue to work its way out,” Barta said. “I don’t know how long it’ll take. We believe what we believe. The plaintiff’s attorney believes what he believes. I don’t know where that’ll go. I’ll let that go through its process.”
UI Women’s Wrestling?
Larew said his clients are likely to amend their complaint following the motion to dismiss being denied and the university dropping its appeal on the injunction. Possible amendments might include additional named plaintiffs or modifying/adding additional claims, he said.
Under the current complaint, the six women are asking for immediate reinstatement of the team and for the university to add additional women’s sports team opportunities to ensure Title IX compliance.
Larew said his clients “describe growing enthusiasm for contact sports for women—an interest that the UI’s Athletics Department has not recognized by the sponsorship of a championship contact sport.”
In some Title IX cases, federal courts have directed the university to establish a specific sport, Larew said. In others, federal courts have directed the university to come up with Title IXcompliant plans to expand women’s sports participation without specifying what sport should be added.
Two of the plaintiffs in the case—Miranda Vermeer and Abbie Lyman—have expressed interest in rugby and wrestling, respectively. Vermeer is a UI senior who has participated in a women’s rugby sports club for four years. Prior to the pandemic, between 35 and 40 female students participated in rugby club activities during the 2019-20 season, Vermeer said in her court declaration.
Lyman, a UI freshman, wrestled in high school and hoped to continue the sport when she got on campus, but she found there was “no institutional support for it.” Given the support for women’s wrestling in high schools across the state, Lyman said in a written court statement she found it “unusual and disappointing” that it wasn’t offered at UI.
Women’s wrestling was recognized by the NCAA last year as an emerging sport for women and was approved in all three divisions. Women’s
wrestling, acrobatics and tumbling, equestrian, rugby and triathlon are all considered emerging sports as of Aug. 1.
“We hope the UI will seize the opportunity to regain a leadership role in women’s collegiate varsity sports programs,” Larew said. “What better way to do that than a sport such as wrestling—at the university known throughout the world as visionary and accomplished in that very sport? Rugby is rapidly gaining a following and increased participation in Iowa and throughout the nation. Here, too, Iowa could, and should, reestablish a leadership role in women’s intercollegiate sports by recognizing a varsity rugby team.”
During the Feb. 16 news conference, Barta said the athletic department has been considering establishing a women’s wrestling program due to the increased popularity of the sport in Iowa, history of the men’s wrestling program and the news from the NCAA. A challenge, however, is finances.
“We haven’t added the sport, primarily, even before COVID and the pandemic, because we haven’t figured out a financial plan that allowed us to do that within the means that we have,” Barta said, adding that he estimates women’s wrestling would cost between $750,000 to $1.5 million a year.
Both Ohlensehlen and Puccini expressed how overwhelming the last year has been between the lawsuit, testifying in court, keeping their grades up, going to swim practice and competing.
“It’s been a very heavy year,” Ohlensehlen said, adding that her teammates have had to grow up fast and make a number of difficult decisions. “This has really been weighing on me, and I know it’s not just me—it’s all my teammates. We’ve really been relying on each other this past year.”
Ohlensehlen, who is graduating this year and plans on attending law school in the fall, said she will use what she’s learned from the lawsuit and the lawyers she’s worked with as she enters the legal profession herself.
“It means so much to me that I was able to help with this movement, not just because of swimming but also because of women in athletics. Women as athletes are not as appreciated as men as athletes, and I don’t think that’s fair,” Ohlensehlen said. “I’m so honored that I was able to help create more opportunities for women at a D1 institution.
“The support’s been really overwhelming, and
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we’re going to keep fighting. This is not over by any means.”
While Puccini never expected her freshman year to look like this, she’s proud of what her teammates have accomplished during the competition season.
“I think this team took every obstacle that we had our way, and we overcame that and did much more,” Puccini said.
Puccini added that being part of this lawsuit allowed her to use her voice and show her love for the sport and for being a Hawkeye.
Despite her longtime dream of swimming for Iowa, Puccini committed in late November to transferring to the University of Arizona once she finished her freshman year at UI. Following the news of the team’s reinstatement, she’s not sure what she’s going to do.
“Going into my freshman year I never thought any of this would happen, especially being part of a lawsuit for Title IX and going to court and testifying,” Puccini said. “That was something that I was super appreciative to be a part of, even though I wish I was never a part of it if we didn’t get cut, but it taught me a lot and to use my voice.”
“I really wanted to fight for this team and do everything I possibly could to try and get it back. ... We’re not out of the water yet with the lawsuit, and I think there’s a lot to come with that part.”
Izabela Zaluska is a staff writer and editor at Little Village.
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