Delaware State University is reportedly defending its decision to cut the women’s equestrian team by claiming it nevertheless complies with prong two: the compliance test that requires a university to show a history and continuing practice of expanding women’s athletics. The problem with DSU’s prong two argument is that all courts that have considered whether cuts to women’s teams violate Title IX have recognized that cutting a viable women’s team necessarily violates prong two: reducing opportunities
This is the tradeoff for the flexibility prong two provides in the first place: schools don’t have to achieve proportionality (prong 1) or full accommodation of interests (prong 3) overnight; they will not violate the law if they are working towards those goals by program expansion. But this flexibility is not boundless: it does not allow a university to stall (hence, “continuing” practice) and it does not allow a university to backslide by cutting a viable women’s program. Rather, as the First Circuit said in Cohen v. Brown, it requires a university to “march uninterruptedly in the direction of equal athletic opportunity.” More recently, the district court in Connecticut articulated an identical interpretation of prong two when it held that Quinnipiac University necessarily did not show a history and continuing practice of program expansion after it cut its viable women’s volleyball team: “That is because, by eliminating a women’s team while there is sufficient interest to field one, the University will have failed to demonstrate that it is committed to expanding opportunities for the underrepresented gender – women.”
Coincidentally, it looks like the court’s prong two interpretation is not the only reason to compare DSU’s case to Quinnipiac’s. DSU’s second defense of its decision to cut equestrian is the announcement of plans to add a competitive cheer team. However, this does not change a court’s likely outcome on the prong 2 question. As long as one sex (here, women) are underrepresented in athletics, prong 2 compliance means the University has to keep its viable programs AND add new ones. Cutting-and-adding does not count.
A second issue is whether adding cheer put the university in compliance with prong 1. If so the prong 2 argument is not necessary. But putting aside the obvious argument that DSU should not be able to count cheer opportunities that don’t yet exist, there is no way DSU will satisfy prong 1 by adding cheer. The disparity between the percentage of women students and women’s athletic opportunities is so severe that by my calculation, DSU would have to add 156 cheer athletes– more than doubling the current number of women’s athletic opportunities — to comply with prong 1. Surely this is not what DSU is planning. If it is, it’s got other problems, as courts have started to crack down on universities that manipulate prong 1 calculation by padding the rosters of women’s teams.
In sum, I continue to predict that this case will resolve quickly and in favor of the present and recruited equestrians who have filed suit against DSU.