Upgraded Boathouse and More for UConn Team after Bright-line Title IX Blunder
Photo Source: Steve Martarano, Liberty Island in the Sacramento-San Joaquin River Delta, Flickr (June 2, 2017) (CC BY-SA 2.0).
By: Lisa McConnell* Posted: 03/08/2022
On June 24, 2020, the University of Connecticut (“UConn”) announced its decision to eliminate the University’s women’s rowing team after the 2020-2021 season as part of a budget cut, partially due to looming costly boathouse repairs. In April 2021, twelve members of the women’s rowing team filed a proposed class action suit in the Connecticut District Court to prevent UConn from eliminating the team. The rowers claimed UConn had violated Title IX of the Education Amendments of 1972 and that “a temporary restraining order [was] needed to maintain the status quo pending a ruling on their motion for preliminary injunction.”
On May 26, 2021, the Connecticut District Court issued an opinion on the rowers’ motion for preliminary injunction. In the Second Circuit, there are two standards of proof for preliminary injunctions, depending on whether movants seek a “mandatory preliminary injunction that alters the status quo” or a “prohibitory injunction seeking only to maintain the status quo.” Movants seeking to maintain the status quo must demonstrate that they are “likely to succeed on the merits” of a claim, are “likely to suffer irreparable harm in the absence of preliminary relief, [that] the balance of equities tips in [their] favor, and that an injunction is in the public interest.” Conversely, movants seeking to alter the status quo “must demonstrate a “clear” or “substantial” likelihood of success on the merits.” Despite the fact that UConn did not prepare for the team’s operations for the following year, the Connecticut District Court determined that the rowers were seeking to preserve the status quo because the action arose from the decision to cut the team. Therefore, the lower standard could have applied. Nevertheless, the court applied the higher standard of review when considering the merits of the rowers’ claim, perhaps due to the court’s view that the rowers had strong claims.
The Court’s Title IX Analysis
In exchange for federal funding, Title IX requires schools to offer equal athletic opportunities to men and women. To determine whether a school offers equal opportunities to men and women, the court can consider a variety of factors, including “whether the selection of sports and levels of competition effectively accommodates the interests and abilities of members of both sexes.” To determine whether UConn effectively accommodated the interests and abilities of its athletes, the Connecticut District Court used two policy guidance documents issued by the U.S. Department of Education’s Office of Civil Rights (“OCR”). The 1979 Policy Interpretation relied on by the court indicates that there are three prongs that may be used to determine whether a school has effectively accommodated its students. However, when asserting its compliance with Title IX, UConn only argued that the first prong had been met and neglected to argue whether the second or third prongs had been met.
The first prong of the 1979 Policy Interpretation considers “whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.” The court noted that the 1996 Policy Clarification indicates that “natural fluctuations in enrollment and participation rates” make it difficult to achieve exact proportionality in the ratio of male to female student athletes and male to female undergraduate students. Further, the court addressed that the 1996 Clarification indicates that this inevitable discrepancy results in a “participation gap,” the number of opportunities necessary to attain exact proportionality. Consequently, because exact proportionality is realistically unattainable, the 1996 Clarification considers “athletic opportunities “substantially proportionate” at a school when “the number of opportunities that would be required to achieve [exact] proportionality would not be sufficient to sustain a viable team.” Importantly, the court noted that the 1996 Policy Clarification also states that “[a]s a frame of reference in assessing this situation, OCR may consider the average size of teams offered for the underrepresented sex, a number which would vary by institution.”
Although the 1996 Policy Clarification indicated that consideration of the average size of all teams offered for the underrepresented sex was discretionary, UConn argued that proportionality was met because the participation gap after elimination of the women’s rowing team was fewer than the size of an average UConn women’s team. UConn based their argument on a Western District of Michigan case, but the Connecticut District Court noted that the opinion was not binding. Furthermore, the Connecticut District Court analyzed the language of the 1996 Clarification and found that “the 1996 OCR Clarification provides that a participation gap large enough to field a viable team- not the average team size- is the benchmark for determining substantial proportionality; the average size ‘may’ be considered as a ‘frame of reference’ in ascertaining the viable team size.”
Additionally, UConn argued that a second bright-line rule applied. Because UConn’s participation gap was less than 2%, UConn argued that it categorically satisfied the test for substantial proportionality. However, the Connecticut District Court noted that Second Circuit previously declined to adopt the bright-line rule indicating that a certain participation gap percentage is acceptable and declined to hold that UConn categorically satisfied the test for substantial proportionality. Accordingly, here, the court determined UConn incorrectly used two discretionary tests as bright-line rules to argue that substantial proportionality had been met.
In its May 2021 ruling, the court also considered that it was apparent that UConn had a history of failing to comply with Title IX and granted the rowers’ preliminary injunction to temporarily prevent the University from removing the team. In July 2021, two months after the Connecticut District Court’s preliminary injunction opinion, UConn announced that it would keep the rowing team for at least the next two years, through the 2023 season. Five months later, in December 2021, the rowers and UConn reached a settlement decision. UConn agreed to keep the rowing team for three additional years (through the 2026 school year), hire three full-time assistant coaches, extend the head coach’s contract an additional year through 2024, increase the number of scholarships from fourteen to twenty, increase the recruiting budget from $7,300 to $35,000 per year, and provide space for indoor practice, meeting, training, and a locker room with one locker per rower. UConn also agreed to complete the boathouse renovation that initiated the decision to eliminate the team and agreed to install new docks, bathrooms, and showers and covered storage. Additionally, UConn agreed to Title IX compliance monitoring to audit its athletic programs.
Outlook for Future Title IX Compliance Monitoring
While it is now clear that UConn was out of compliance with Title IX, the University did not seem to appreciate its substantial proportionality calculation errors until after the preliminary injunction hearing and Connecticut District Court opinion. It is important to ensure compliance with applicable law of the proper jurisdiction; although UConn seemingly satisfied Title IX substantial proportionality in other jurisdictions, the University did not meet the standard in the Second Circuit. Going forward, schools will likely thoroughly ensure compliance by confirming what metric is necessary in their respective jurisdiction and by implementing or improving routine compliance monitoring.
* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2023, Villanova Charles Widger School of Law
 See UConn Huskies Reinstate Women’s Rowing Team After Title IX Challenge to Cut, EPSN (July 9, 2021), https://www.espn.com/college-sports/story/_/id/31788888/uconn-huskies-reinstate-women-rowing-team-title-ix-challenge-cut (explaining UConn also cut men’s swimming, men’s diving, men’s cross country, men’s tennis teams); Lori Riley, UConn Agrees to Reinstate Women’s Rowing for Two Years, Plans to Assess Costs for Potential Long-term Reinstatement, Hartford Courant (July 8, 2021), https://www.courant.com/sports/uconn-huskies/hc-sp-uconn-womens-rowing-20210709-4cxc7xqfhrexnbihmnm4qqifdu-story.html (noting major factor in UConn’s decision to eliminate team was boathouse not owned by UConn which needed “potentially significant and costly upgrades”).
 See Paul Doyle, UConn Tried Eliminating its Rowing Team. A Lawsuit Settlement Will Keep the Team Alive and Prompt Future Investment, CT Insider (Dec. 30, 2021), https://apnews.com/article/sports-education-lawsuits-connecticut-rowing-1c8f6b3dcf77ea1b9ac8f5d99e5850a8 (stating members of UConn women’s rowing team, Sarah Lazor, Grace Johnson, Magdalene Mlynek, Laura Braddick, Emily Jones, Bailey Harris, Molly O’Neill, Teresa Nobles, Emma Pinckney, Josephine Luby, Gayane Gevorkyan, Jordan Nanai, filed Title IX complaint in March 2021, then filed federal lawsuit in April 2021).
 See Lazor v. Univ. of Conn, 2021 U.S. Dist. LEXIS 99490 *1-2 (D. Conn. May 26, 2021) (“Plaintiffs contend UConn’s decision to eliminate the rowing team is in violation of Title IX of the Education Amendments of 1972 . . . 20 U.S.C. § 1681, et seq.”).
 See id. at *3 (“In the Second Circuit, the same legal standard governs motions for temporary restraining orders and motions for preliminary injunctions.” (citing Glossip v. Gross, 576 U.S. 863, 876 (2015))).
 See id. at *3-4 (explaining to determine which standard of proof applies, “courts must first identify the ‘”status quo” – that is, “the last actual, peaceable uncontested status which preceded the pending controversy.”’” (citing Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011))).
 See id. at *3 (noting “burden of proof is more stringent” when movant seeks to alter status quo).
 See id. at *3 (noting burden of proof is more stringent because movant changing situation instead of preventing change).
 See id. at *4 (“In this case, the ‘last actual, peaceable uncontested status which preceded the pending controversy’ is when the rowing team was fully operative, before UConn announced that it would cut the team and before it took steps toward that end.”).
 See id. at *5 (“That UConn has not recruited any student athletes, purchased equipment, or retained coaches for the 2021-2022 season does not compel a conclusion that a heightened mandatory injunction analysis is warranted.”).
 See id. at *5, *23-24 (explaining because rowers could meet both mandatory preliminary injunction standard, prohibitory injunction standard, court chose to apply higher standard of mandatory preliminary injunction, so rowers carried “burden of proving that they will suffer irreparable harm in the absence of injunctive relief and that they enjoy a substantial likelihood of success on the merits of their claim”).
 See id. (“[n]o person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” (citing 20 U.S.C. § 1681(a))).
 See id. at *5-6 (noting Title IX regulations codified at 34 C.F.R. § 106.41(a), ten non-exhaustive factors for assessing equal opportunities, factors include “provision of equipment and supplies; scheduling of games and practice time; travel and per diem allowance; opportunity to receive coaching and academic tutoring; assignment and compensation of coaches and tutors; provision of locker rooms, practice and competitive facilities; provision of medical and training services; provision of housing and dining facilities and services; and publicity.”).
 See id. at *7-9 ( noting U. S. Dept. of Educ. Office of Civil Rights enforces Title IX, issued policy interpretation in 1979, clarification in 1996).
 See id. at *8 (providing “three [prongs] to determine whether a university is complying with requirement to provide effective accommodation of students’ interests and abilities”(citing Biediger v. Quinnipac Univ., 691 F.3d 85, 92-93 (2d Cir. 2012))); see also id. (acknowledging meeting any prong satisfies Title IX compliance requirement).
 See id. (providing basis for court’s decision to address only first prong in its analysis). “Under prong one of the three-part test, courts first determine the number of participation opportunities afforded to male and female athletes in the intercollegiate athletic program.” Id. at *8-9 (citing Biediger., 691 F.3d at 93). “Then, courts consider whether the numbers are substantially proportionate to each sex's undergraduate enrollment." Id. at 94 (citing Biediger, 691 F.3d at 94)).
 See id. at *7-8 (noting other prongs are “2. where the members of one sex have been and are under-represented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or 3. where the members of one sex are underrepresented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion . . . whether it can be demonstrated that the interests and abilities have been fully and effectively accommodated by the present program.” (citing Biediger, 681 F.3d at 92-93))).
 See id. at *5-6 (explaining exact proportionality is explicitly not required by 1996 Policy Clarification) (citing U.S. Dept. of Educ., Office of Civil Rights, Clarification of Intercollegiate Athletics Pol’y Guidance: The Three-Part Test, OCR, at 2-3 (Jan. 15, 1996)) [hereinafter 1996 OCR Clarification].
 See id. at *9 (explaining participation gap does not violate Title IX if participation opportunities for each sex remain “substantially proportionate”) (citing 1996 OCR Clarification, at 2-3)).
 See id. at *10 (also noting other factors can be considered, like natural fluctuations in enrollment) .
 See id. at *10-11 (“Ultimately, substantial proportionality is decided on ‘case-by-case basis rather than through use of a statistical test,’ taking into account ‘the institution’s specific circumstances and the size of its athletic program.’”(internal footnote omitted) (citing 1996 OCR Clarification, at 2-3)).
 See id. at *13-15 (noting UConn only cites one case supporting average size argument) (referencing Balow v. Mich. State Univ., 2021 U.S. Dist. LEXIS 31017 (W.D. Mich. Feb 19, 2021)). UConn argued that because the 2020-2021 participation gap of twenty female athletes was fewer than twenty-eight, the average size of female teams that year, they met the first prong, substantial proportionality. See Id. at *11-12 (noting that UConn contended first prong of 1996 OCR Clarification was “squarely” met).
 See id. at *13-14 (D. Conn. May 26, 2021) (opining minimal weight would be assigned to average team size).
 See id. at *14 (explaining court declining to follow Balow). The court held that because average size of female teams was just one factor that could be considered, the fact that the participation gap of twenty female athletes greatly exceeded the size of several sports teams that the University could offer, women’s golf (eight members), women’s bowling (ten members), women’s rifle (eight members), women’s gymnastics (eighteen members), UConn was not in compliance with Title IX. Id.
 See id. at *16-17 (noting UConn argued it met test for substantial proportionality under first prong of 1996 Policy Clarification).
 See id. (noting UConn argued its participation gap of 1.3% indicated it met substantial proportionality because no court had found substantial proportionality was not met when gap was lower than 2%).
 See id. at *17 (“[W]hile a district court outside this circuit reports finding no case in which a disparity of two percentage points or less has been held to manifest a lack of substantial proportionality,… we do not pursue the issue because the disparity in this case is greater than 2% and we do not, in any event, understand the 1996 Clarification to create a statistical safe harbor at this or any other percentage.” (quoting Biediger v. Quinnipac Univ., 691 F.3d 85, 106 (2d 2012))).
 See id. at *9-17 (holding UConn incorrectly used average team size as method to determine substantial proportionality when it was actually just factor, while noting UConn incorrectly argued substantial proportionality percentage of two or fewer indicated compliance with Title IX).
 See id. at *14-16 (indicating at preliminary injunction hearing “evidence was introduced plausibly suggesting that UConn had inflated the numbers on its women’s rowing team” and “UConn’s historical data further suggests that the University is not now, and has not been since 2008, complying with Title IX. Based on UConn’s web roster data . . . UConn experienced participation gaps disfavoring females every year for the past 13 years”).
 See Pat Eaton-Robb, UConn Reinstates Rowing Team After Title IX Challenge, AP News (July 9, 2021), https://apnews.com/article/business-sports-rowing-2da62059e0cff3141e0c8fb59f9201fc (stating that UConn issued statement that during time litigation was pending UConn would “conduct a more detailed assessment of the costs associated with possible program upgrades and work to secure the potential long-term reinstatement of the rowing program.”).
 See Doyle, supra note 2 (showing settlement expands on UConn’s July 2021 announcement it would keep rowing program for at least two years).
 See id. (noting lead counsel for rowers, Felice Duffy, said settlement could have impact on future Title IX cases).
 See UConn Huskies Reinstate Women’s Rowing Team After Title IX Challenge to Cut, supra note 1 (indicating part of reason UConn cut women’s rowing team was due to costly boathouse repairs that were needed); see Doyle, supra note 2 (explaining as part of settlement with rowers, UConn would renovate team’s boathouse).
 See Doyle, supra note 2 (noting Connecticut District Court found UConn had not been compliant with Title IX since 2008, which is why lead counsel for rowers, Felice Duffy, stated monitoring was important part of settlement).
 See Riley, supra note 1 (citing UConn press release decision to reinstate rowing program after preliminary injunction hearing, opinion). “We continue, as we must, to assess our compliance with Title IX and we determined that additional participation opportunities for female student athletes are necessary at this time.” Id.
 See generally Lazor v. Univ. of Conn., 2021 U.S. Dist. LEXIS 99490 *1, 13, 16-17 (D. Conn. May 26, 2021) (noting Second Circuit declined to follow categorical determination of substantial proportionality or Western District of Michigan case using average team size to determine substantial proportionality was not binding on Connecticut District Court).
 See Leah Reynolds, Rowing to Title IX Victory: Court Rules in Favor of UConn’s Women’s Rowing Team, JDSupra (Aug. 9, 2021), https://www.jdsupra.com/legalnews/rowing-to-title-ix-victory-court-rules-1140193/ (indicating after UConn decision, “[a]thletic departments should conduct annual audits on their athletic programs” to ensure Title IX compliance).