Iowa Hawkeyes

Judge: Female athletes have 'fair chance' at proving University of Iowa is violating Title IX

'Financial hardship is not a defense to a (probable) Title IX violation,' she writes

Iowa's Kelsey Drake swims the women's 200 yard butterfly consolation final event during the 2020 Women's Big Ten Swimmin
Iowa’s Kelsey Drake swims the women’s 200 yard butterfly consolation final event during the 2020 Women’s Big Ten Swimming and Diving Championships at the Campus Recreation and Wellness Center in Iowa City on Saturday, February 22, 2020. (Stephen Mally/hawkeyesports.com)

IOWA CITY — In spelling out her reasoning for temporarily blocking the University of Iowa from cutting its women’s swimming and diving program, a federal judge said in a written order Thursday there’s a “fair chance” the institution “is not, and has not been, in compliance” with a federal requirement of providing equal opportunities for female student-athletes.

“The numbers do not lie,” U.S. District Court Judge Stephanie Rose wrote about allegations UI Athletics has failed and continues to fail in complying with Title IX by “providing its female athletes athletic participation opportunities substantially proportionate to their representation in the student body.”

She also criticized the UI’s stance she ignore “conspiracy theories” and “speculative” testimony from Donna Lopiano — an expert witness the judge called “highly credible and her opinion exceedingly reliable.”

UI attorneys tried to discredit Lopiano’s opinion and statistical analysis that found the institution for years has slighted female student athletes the opportunities they deserve under the law. But Rose called those efforts “ineffective” and worth paying “no attention to.”

“(Lopiano) has written dozens of publications on Title IX gender parity in athletics — she quite literally wrote the book on the subject,” Rose wrote in her order, noting Lopiano help draft the rules at the heart of this case.

“She has testified before Congress and served as the President of the Association for Intercollegiate Athletics for Women,” Rose wrote. “Her understanding of Title IX and intercollegiate athletics is unparalleled, and defendants have provided no basis by which to discard her opinion.”

Although the UI offered witnesses to counter her analysis of shortcomings in female athletic opportunities, Rose said none of those people contradicted Lopiano’s statistical analysis.

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“Their position is especially disingenuous considering (the UI’s) refusal to disclose the official Title IX data they claim exonerates the university — data they admit is discoverable but have nonetheless declined to produce in response to plaintiffs’ request,” Rose wrote in her Christmas Eve order. “Defendants offer no authority for the position, and the court finds it utterly unpersuasive.”

While this case centers on the women’s swimming and diving program, a finding that the UI is in violation of Title IX could have broader implications. Federal authorities can require that schools found violating Title IX take corrective actions that could include redistributing scholarships, shifting spending or revising policies. Schools that don’t act risk losing federal money, but that step has never been used — according to a book partly written by Lopiano.

Though Rose noted “injunctive relief is an extraordinary remedy that is not issued lightly,” she found reason to believe the six UI female athletes suing the university for violating Title IX could ultimately win their lawsuit.

“Plaintiffs have demonstrated a fair chance that the University of Iowa does not presently provide its female student with intercollegiate athletic opportunities in substantial proportion to their enrollment, and is unlikely to do so after eliminating the women’s swimming and diving team for the 2021—22 academic year.”

In a statement this week, UI Athletics spokesman Steve Roe reiterated the need for cutting not only women’s swimming and diving, but the male counterpart — along with men’s gymnastics and men’s tennis.

“In August, due to unprecedented financial conditions caused by the COVID-19 pandemic, the University of Iowa was forced to take numerous steps to mitigate an anticipated deficit of $55 to $65 million,” Roe wrote. “Unfortunately, those steps included the announced discontinuation of four teams at the conclusion of the 2020-2021 academic year.”

The UI has stood behind its Title IX compliance, noting it the federal Office of Civil Rights in 2019 closed an investigation “with no findings of any violation.”

“The university remains committed to staying in compliance with Title IX,” according to a UI statement.

About the judge’s order this week, Roe said, “While we disagree with some of the court’s findings and will continue to assess our next steps, our commitment to gender equity and our student-athletes remains strong.

“We are proud of our women’s swimmers,” he said. “They have been training all fall, and we look forward to the resumption of competition in January, or as COVID-19 allows.”

He said the university “has been fully engaged in supporting the team this year and will continue in those efforts.”

But several UI swimmers testified that coaches are leaving, players are committing to other squads and the team is “crumbling” as it faces an uncertain future.

Rose considered that tearful testimony in granting the injunction that essentially rewinds the clock on UI’s Aug. 21 announcement it would end the women’s swimming and diving program along with the three other sports.

“The injury suffered by (the female athletes) is clearly irreparable and immediate,” she wrote. “Already, the team will suffer years of setback as recruiting efforts have ground to a halt.”

Noting only one coach remains for what UI has said will be its final women’s swimming and diving season, the judge said “the current women on the team stand in a far less favorable position to train and prepare for major meets that are the peak of their athletic careers.”

“Stated plainly, the harm to plaintiffs should defendants be allowed to eliminate the women’s and diving team before a full trial is held is not only irreparable — it is existential.”

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UI attorneys argued the female athletes are allowed to keep their scholarships and are free to transfer to other schools and swimming programs.

The UI argued that an injunction against cutting the women’s program would cause it “significant harm” because “maintaining that team would add an estimated additional cost of $1.1 million in annual expenses in a year when its budget has already been hamstrung by the COVID-19 pandemic.”

But the judge noted the UI premised its decision to eliminate the sports on projections of “no income from football in fiscal year 2021, when little to no athletics income was expected due to event cancellations.”

“Since then, the University of Iowa football team has played a number of televised games, and the basketball season has begun as well,” she wrote. “The university faces budgetary setbacks, to be sure; but those setbacks do not outweigh the harm to plaintiffs have shown after demonstrating a fair chance their rights under Title IX have been infringed.”

Plus, she wrote, “financial hardship is not a defense to a (probable) Title IX violation.”

“Public universities ‘may not simply plead limited resources to excuse the fact that there are fewer opportunities for girls than for boys,’” she wrote, making the final point, “The University of Iowa is a public institution funded by public dollars administered by public servants serving the public good by educating Iowa’s youth.”

The university had asserted there is a broad public interest in protecting its financial health and ability to self-govern “without the intrusion of the federal courts.”

“Certainly,” she wrote. “But, certainly, it is also true that ‘the public’s interest in eradicating sex discrimination (in education) is compelling.’”

Comments: (319) 339-3158; vanessa.miller@thegazette.com

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