Claims of Financial Exigency & Roster Management Practices Under Scrutiny in Portz v. St. Cloud State University

(The following article was written by Ellen J. Staurowsky, Ed.D., Senior Writer for Hackney Publications & Professor, Department of Sport Management, Drexel University, ejs95@drexel.edu)

In March of 2016, St. Cloud State University (SCSU) administrators announced an athletics reorganization plan that included elimination of the men’s cross country and track and field teams (both indoor and outdoor) as well as men’s and women’s tennis and Nordic skiing. Pointing to a downturn in institutional enrollment and subsequent loss of tuition revenues in the vicinity of $8.6 million between fiscal years 2011 and 2016, SCSU athletics officials explained that the cuts were part of the University’s overall budget review process and cost containment efforts. According to LeClair (2016), the proposed restructuring of the SCSU athletic department, which also included downsizing some sports while reinvesting in others, would reduce the $500,000 deficit the athletic department was running by half.

In the aftermath of the announcement, SCSU athletes from both affected and unaffected teams rallied to request that administrators reconsider the decision (LeClair, 2016). Over the objections of the athletes, and emphasizing that the decision was final, the SCSU administration moved forward to implement the program eliminations and reductions.

Left with no relief and citing a lack of Title IX compliance either before or after the reorganization, five SCSU female athletes who were members of the women’s tennis team initially sought, and were granted, a preliminary injunction to prevent SCSU from moving forward with their plan pending adjudication of their Title IX claims in July of 2016. By September of 2016, the number of SCSU female athletes had grown to include members of the Nordic ski team, filing a class action against the University on behalf of themselves and other similarly situated females. They sought relief from an alleged pattern of sex discrimination that resulted in a denial of athletic opportunities and equitable treatment under Title IX while also requesting that the Court monitor the Defendants’ compliance efforts.

Following a jury trial in December of 2018, both parties submitted proposed findings of fact, conclusions of law, and orders in January of 2019. Defendants CSCU maintain the athletic department as of this writing is in compliance with Title IX, noting that they had engaged in an act of good faith by taking numerous affirmative steps to operate a Title IX compliant department after hiring a Title IX coordinator in 2010 and a new athletic director in 2012. CSCU holds out as evidence their responsiveness to recommendations made from a Title IX consultant who visited there in 2010 and again in 2011. They further note that at the Title IX coordinator’s urging, a dormant Gender Equity Advisory Committee (GEAC) was reconstituted and several measures taken by the athletic director to rectify certain issues, such as adjustments to practice schedules and game travel policies, pulling booster money under one umbrella, and improvements to the SCSU softball field.

SCSU explains that the cost containment strategies developed during a time of financial stress at the University required an objective assessment of the expanse of athletic teams offered by the department, noting that SCSU’s sponsorship of 23 sport teams was more than any of their peer institutions in the NSIC and situated them as operating one of the larger NCAA Division II institutions in the country. The athletic director testified at trial that if SCSU had no program and was building it for the first time, her recommendation would be to have a total of 12 sports because of resource constraints. Reducing the size of the program offerings and implementing a roster management program (setting limits on the number of opportunities per team) were presented as strategies designed to create a sustainable framework for a department that was tested by limited resources.

One of SCSU’s vulnerabilities is the position they have taken regarding how their efforts to reduce teams fit in with their plan to meet at least of one the parts of the three-part test for assessing access to athletic participation opportunities. The first part of the test, referred to as Prong 1, provides for schools to offer athletic opportunities to male and female athletes proportional to the representation of male to female undergraduates. Failing that, schools can demonstrate compliance by showing that there has been a history and continuing practice of program expansion (meaning that programs and opportunities have been added over time) (Prong 2) or that the institution has done everything it reasonably can to effectively accommodate the interests and abilities of the underrepresented gender (Prong 3). According to SCSU’s athletic director, the program cuts proposed would cause the institution to switch their Title IX compliance strategy from Prong 3 to Prong 1.

Portz and the other female athlete plaintiffs (2019) argue that SCSU’s actions fell far short of what was necessary for the institution and athletic department to be in compliance with Title IX. In point of fact, according to the Plaintiffs, SCSU administrators were well aware of the fact that the athletic department may not have ever been Title IX compliant. In support of that contention, they cite email correspondence from July of 2010 from SCSU’s Title IX coordinator to an NCAA official that acknowledges non-compliance at that time and their contemplation of cutting two sports (women’s hockey and men’s football). Because SCSU was offering male athletes a disproportionately high number of athletic opportunities that year compared to their enrollment in the undergraduate population (thus not meeting the Prong 1 standard), the NCAA official pointed out that SCSU would be vulnerable to a Title IX lawsuit or OCR complaint if they ventured down that path.

In a confidential letter sent to the SCSU president and his cabinet in January of 2016, just weeks before the program cuts were announced, the Title IX coordinator stated that the institution was vulnerable to external scrutiny and internal complaints because “Some of us also know that our athletics program in its past and current state is not in compliance with any of the three prongs of Title IX athletics compliance approved by the OCR….” (Portz et al., 2019). The Plaintiffs make reference to public statements made by the SCSU athletic director and issued by the institution that appear to be admissions of a failure to comply with Title IX. In an audio-taped discussion with athletes at SCSU immediately after the program eliminations were announced, the athletic director is believed to have explained that the institution had “always been pretty much uncompliant” (Portz et al., p. 17). Later emails between the athletic director and others narrowed the timeframe of Title IX non-compliance to have been since the early 2000s.

From the Plaintiffs’ perspective, such a historical record of non-compliance, if true, coupled with the elimination of women’s programs compounded the problem. Contrary to SCSU’s stance that the cuts along with a roster management program would bring the institution into compliance, the Plaintiffs argued that SCSU’s actions violated all three prongs for assessing athletic participation opportunities, pointing out that the institution could not claim a history and continuing practice of program expansion or accommodating the interests and abilities of female athletes because they eliminated two existing women’s sports. Nor could SCSU support an argument that they were meeting Prong 1 because they were not offering athletic opportunities to female athletes proportional to enrollment. Between 2003-2004 and 2017-2018, SCSU had participation gaps favoring male athletes from a high of 15.5% (representing 172 lost opportunities for female athletes) to a low of 4.0% (which represented 37 lost opportunities). With those kinds of gaps, there was ample room to offer additional sports for women at SCSU, especially given the fact that there were women’s club teams at SCSU throughout this span of time. Further, an athletics interest survey conducted in 2015-2016 showed that 47 female students expressed an interest in gymnastics, a sport that SCSU had cut during the 1980-1981 academic year. At the time SCSU acted to cut Nordic skiing and tennis for women in 2016, they had not added a sport for women since 1999.

Plaintiffs further press SCSU regarding its claims of financial exigency. They note, for example, that while the athletic department reported they would realize a savings of $250,000 by cutting teams, their own analysis showed that those savings would not be realized within the total university budget, and would in fact, cost the institution nearly $92,900 in lost tuition revenue from cutting women’s tennis and Nordic ski teams.

Plaintiffs also took issue on the approach SCSU administrators were taking to implementing roster management. At trial, the Plaintiffs offered multiple examples of what they called “roster manipulation”, including reporting errors that created a more favorable compliance picture than what accurate reporting would have revealed; counting female athletes as participants when they were injured and unable to compete while male athletes in a similar situation were taken off rosters; and counting a female graduate as a member of a team. The Plaintiffs additionally contended that the rapid expansion of rosters in women’s cross country and both indoor and outdoor track, where increases of 27 and 23 female athletes were reported in one year, was reflective of a manipulation attempt that falsely inflated the number of female participation opportunities while suppressing the number of male participation opportunities.

The parties differ on one final but crucial point, that being what is expected under Title IX in terms of equitable treatment when an athletic department allocates resources on the basis of a tier-system (a system that preferences some sports above others in the allocation of resources, staffing, facilities and other support). The Plaintiffs maintain that there are four tiers within the SCSU athletic department, starting with their designated NCAA Division I programs in men’s and women’s ice hockey. The remainder of the teams offered by the athletic department compete in Division II. The Plaintiffs take the position that until such time as there are proportional opportunities for female athletes not only across the entire program but within each tier, analysis of compliance in the operational areas known under Title IX regulations as the “laundry list”, which include expenses such as athletically-related financial aid, equipment and uniforms, tutoring/athletic academic support, sports information, sports medicine, facilities, travel and per diem, assignment of coaches, and compensation of coaches, cannot be determined. They further assert that during the time period under review, a tiered analysis demonstrated that more male athletes were receiving the benefit of a better experience because they were more likely to be represented among the higher tiered teams. SCSU has strenuously objected to this characterization as being overly narrow and inattentive to the expectation that Title IX applies to an athletic department overall and provides for off-setting benefits to ease concerns about differences in program.

To conclude, this is a case to watch in terms of what the final ruling is.

References

LeClair, M. (2016, March 23). SCSU students petition for cut sports. SCTimes.com. Retrieved from https://www.sctimes.com/story/sports/college/2016/03/23/scsu-students-petition-school-against-cut-sports/82173288/

Portz et al. v. St. Cloud State University and Minnesota State Colleges and Universities. (2019). Plaintiffs’ amended proposed findings of fact, conclusions of law, and order. United States District Court District of Minnesota. Case No.: 16-cv-01115 (JRT/LIB)

Portz et al. v. St. Cloud State University and Minnesota State Colleges and Universities. (2019). Defendants’ proposed post-trial findings of fact and conclusions of law. United States District Court District of Minnesota. Case No.: 16-cv-01115 (JRT/LIB)