Perhaps some folks at University of California–Berkeley read our questions about the Title IX compliance problems posed by the university’s decision to cut two women’s teams (gymnastics and lacrosse) four months ago. As we explained in that earlier post, the decision to terminate women’s teams seemed a likely violation, as women were and remained underrepresented in athletics, even factoring in the men’s teams also cut. The New York Times reported this week that Cal is apparently considering reinstating some of all five teams that were cut last fall, though the athletic director, Sandy Barbour, explains that the reconsideration was motivated by the outcry by the teams’ supporters, as well as pledges of financial support. She denies that this has anything to do with Title IX, though I have to believe they are reading the writing on the wall and acknowledging the fact that the cuts backed them into a corner of having to achieve proportionality. Cal is so far from proportionality, that they would have to add 50 women’s opportunities and cut 80 men’s opportunities, according to the Times article.
But I’m not so sure that Cal can simply unring this bell by undoing last fall’s decision. After all, they weren’t any closer to proportionality back then. And even restoring women’s gymnastics and lacrosse, it is still far from certain that it is achieving compliance by the alternative method of demonstrating no unmet interest in women’s athletics. As the Times article notes, the athletic department denied a request to elevate the women’s rugby team to varsity status. If those disappointed athletes sue or complain, they would have a strong case that could produce an obligation on Cal to add them, or come into compliance some other way. Cal’s decision to cut teams brought the university into a compliance spotlight, and that spotlight will be very hard to shake.