Florida State’s Refusal to Elevate Women’s Lacrosse to Varsity Status Prompts Title IX Allegations
(Editor’s note: The following article is reprinted from Sports Litigation Alert, a subscription-based publication that has been produced for 20 years and features a searchable archive of close to 5,000 articles and case summaries.)
By Ellen J. Staurowsky, Ed.D., Senior Writer, and Professor, Sports Media, Roy H. Park School of Communications, Ithaca College
The question of whether Florida State University (FSU) can successfully argue it is in compliance with Title IX of the Education Amendments Act of 1972 is an open one at the moment. On July 7, 2023, Sophia Villalonga, a second-year graduate student who is a member of the FSU women’s lacrosse team petitioned athletics administrators on behalf of herself and her teammates to elevate the team from club to varsity status. Empowered by information they learned about Title IX’s application to athletic departments after reading a USA Today series on the shortfalls in Title IX compliance in college and university athletic departments last year, the team put together an application for women’s lacrosse to be added as a varsity sport that included a proposed budget, information regarding the club’s history and current status, a draft practice and game schedule, and letters of support from head coaches at Duke and South Florida (Schnell, 2023).
According to Lindsay Schnell (2023) with USA Today, FSU athletics administrator Janeen Lalik responded back to Villalonga in an email two weeks later, writing “at this time, we are not actively evaluating the addition of any sports programs to our current collection of teams” (para. 6). The women’s lacrosse team subsequently enlisted the assistance of high-profile Title IX litigator with Bailey Glasser, Arthur Bryant, who sent a demand letter pointing out that given FSU’s compliance history, it’s decision not to consider the petition from women’s lacrosse and elevate the team to varsity status constituted a “flagrant violation of Title IX” (Schnell, 2023).
As a foundational matter, compliance begins with the question of whether schools are offering women athletes equal access to athletic participation opportunities compared to men athletes. Using a three-part test, women athletes should receive opportunities to compete on varsity teams at a rate proportional to their enrollment in the undergraduate student population. Failing that, an institution must demonstrate that they have a history and continuing of program expansion if women are underrepresented in athletics OR that the lack of proportional opportunity is due to the fact that the institution has made efforts to satisfy existing interests and abilities of women athletes.
Based on publicly available data provided by FSU in the annual report required by the Equity in Athletics Disclosure Act, the facts weigh heavily on the side of the FSU women’s lacrosse players. An examination of FSU’s provision of athletic opportunities to women athletes between the reporting years of 2012 through 2021 reveal that FSU has not been providing proportional athletic opportunities to women athletes, with an average gap over that 10-year period of 6 percent. While the gap has fluctuated somewhat over the years, during the past five years the gap has grown larger, with an 11% gap reported in 2021. Women athletes had 34 fewer athletic opportunities in 2021 than they did in 2012 while there were 24 more athletic opportunities offered to men athletes during that same span of time.
At present, FSU offers these varsity sports for women: basketball, beach volleyball, cross country, indoor and outdoor track and field, golf, soccer, softball, tennis, and volleyball. In reviewing a 50-year history of FSU women’s athletics produced by the athletic department in 2018 as well as media guides and record books for individual varsity women’s sports, 8 of the 10 varsity sports offered for women were started between 1968 and 1977. Women’s soccer was then added in 1995 with a decision to add beach volleyball in 2011, with that sport starting its first season in 2012. With this history, it is unlikely that FSU could persuasively argue that it has had a history and continuing practice of program expansion, given that FSU would need to add 100 roster spots to close the proportionality gap.
By refusing to add women’s lacrosse, FSU violates the third part of the test. An established team with 26 members, FSU women’s club lacrosse team debuted on the national scene in 2021-2022 with an appearance in the first-ever Women’s Collegiate Lacrosse Associates DI Nationals. At the end of that season, they were ranked 11th among Division I women’s club lacrosse teams. During the 2022-2023 season, they were ranked as high as 8th in the nation (Garvey, 2023; Leytham, 2023). Lacrosse has been identified as a sport that is growing and one that ESPN has invested in across all levels, including holding broadcast rights for the World Lacrosse championships for men and women; Athletes Unlimited (women’s outdoor lacrosse); the Premier Lacrosse League (men’s outdoor); the National Lacrosse League (men’s indoor); and NCAA men’s and women’s championships. In 2022, the NCAA Division I women’s lacrosse championship drew a larger number of viewers than the men’s championship (600,000 compared to 500,000) (Riccio, 2022). According to the National Federation of State High School Associations (NFSH), girls’ lacrosse at the high school level is among the top 10 sports that are most popular with 96,762 girls in 3,028 programs participating during the 2021-2022 academic year.
This case is interesting for several reasons. First, it raises the question of whether there is an ongoing Title IX auditing process in place for athletic programs and whether processes are in place to review club sport applications from women athletes who are underserved in terms of proportional varsity opportunities by their athletic departments. While FSU’s deputy athletics director for external operations, Janeen Lalik, responded to the women’s lacrosse team by saying that the athletic department was not actively evaluating any sports to add to FSU varsity sport offerings, the absence of a process itself could be problematic from the standpoint that it might be construed that FSU has no process in place to evaluate the third part of the three-part-test or any part of the three-part-test. Second, if FSU is relying on the second part of the three-part-test, does adding a sport more than a decade earlier while still falling short of offering women proportional opportunities 50 years after the passage of Title IX when women athletes have demonstrated both interest and ability constitute a history and continuing practice of program expansion? In effect, if women have been deprived of athletic opportunities for more than a decade at a magnitude that justified not just the adding of one women’s sport but as many as three, can a school successfully seek cover under part two of the three-part-test? And third, the fact that women lacrosse players learned about the steps they should take to advocate for their rights under Title IX is at once reassuring but also revealing. It is reassuring that publications like USA Today are serving the public good in precisely the way intended by educating people about what they need to know. At the same time, FSU, as a matter of obligation under Title IX, should be educating constituencies like athletes about their rights under Title IX. The absence of such education could add to FSU’s Title IX issues.
References
Equity in Athletics Disclosure Act Cutting Tool. Washington, DC: U.S. Department of Education. Retrieved from https://ope.ed.gov/athletics/#/
Florida State Athletic Communications Staff. (2018, August 20). Celebrating 50 years of women’s athletics. Retrieved from https://seminoles.com/news/2018/8/20/50thanniversary
Florida State University Athletic Communications Staff. (2023). Media Guide – Beach Volleyball.Retrieved from https://s3.us-east-2.amazonaws.com/sidearm.nextgen.sites/fsuni.sidearmsports.com/documents/2023/6/21/2023-Beach-Media-Guide.pdf?timestamp=20230621082218
Florida State University Athletic Communications Staff. (2023). Media Guide – Soccer. Retrieved from https://s3.us-east-2.amazonaws.com/sidearm.nextgen.sites/fsuni.sidearmsports.com/documents/2023/8/3/2023_Soccer_Media_Guide.pdf?timestamp=20230804025451
Florida State Athletic Communications Staff. (2023). Record book – cross country. Retrieved from https://seminoles.com/documents/2023/6/21/Cross-Country-Record-Book.pdf
Garvey, E. (2023, March 26). FSU women’s lacrosse faces off for the spring season. FSUNews.com. Retrieved from https://www.fsunews.com/story/sports/2023/03/26/womens-lacrosse-strives-for-victory/70049293007/
Leytham, T. (2023, May 15). Women’s lacrosse sets the pace for continued growth. Sports Events Media Group. Retrieved from https://sportseventsmediagroup.com/womens-lacrosse-sets-the-pace-for-continued-growth/
National Federation of State High School Associations. (2022). High school athletics participation survey. Retrieved from https://www.nfhs.org/media/5989280/2021-22_participation_survey.pdf
Riccio, M. (2022, November 17). Lacrosse’s latest growth spurt positions sport to expand reach. Sportico.com. Retrieved from https://www.sportico.com/leagues/other-sports/2022/lacrosses-growth-spurt-positions-more-growth-1234692939/
Schnell. L. (2023, August 2). Florida State women’s lacrosse seeks varsity sports status, citing Title IX. USA Today. Retrieved from https://www.usatoday.com/story/sports/college/lacrosse/2023/08/02/florida-state-sports-womens-lacrosse-title-ix-varsity/70508793007/