Photo via Grand Forks Herald
When most hockey fans think of the University of North Dakota (UND) hockey program they think of things like Ralph Engelstad Arena, the Fighting Sioux nickname controversy, and great NHL players like Jonathan Toews, T.J. Oshie and Zach Parise.
But, in recent years, while North Dakota news outlets were filled with commentary on the new Fighting Hawks nickname and the men’s program’s 2016 national championship, the relatively new women’s hockey program (founded in 2002) was making some noise of its own. The UND Division I women’s program reeled off eight straight winning seasons from 2010-11 to the present, including six 20-win seasons while playing in the extremely difficult Western Collegiate Hockey Association (since the program’s inception, a WCHA team has won the national championship 13 of the 15 seasons). Twelve UND women ending up playing in the Winter Olympics over the past 15 years, including the American twin duo of Monique and Jocelyne Lamoureux.
The Fighting Hawks were seen as a team to be reckoned with during the 2017-18 season, and was clearly a program on the rise.
Now, after all of these amazing accomplishments and accolades, the program is finally getting some national attention . . . but not the attention that they wanted.
On March 29, 2017, the UND Athletics Department announced that they had cut the women’s ice hockey program, as well as the men’s and women’s swimming and diving program. While there were known issues about the University’s athletic and overall school-wide budget, it appears that the news came as a surprise to practically everyone in the UND women’s hockey community. The apparent lack of communication has upset everyone from the current players to alumni.
This announcement left all of the women on the 2017-18 roster in the dust, with few options on where to play hockey for the upcoming season. With the lack of junior hockey like in men’s hockey and most roster spots filled for the upcoming season, many of these student-athletes have been left “homeless.” However, the University will honor the athletic scholarships of any players on the roster if they choose to stay. But, it appears that the majority of the 2017-18 roster has transferred.
How can these women get their program reinstated? It will probably take more than a last second save by Gordon Bombay at a school board meeting (get used to my Mighty Ducks references!). A possible route at this point in time would be to file a Title IX lawsuit, especially considering the Office of Civil Rights is investigating whether UND is/will be Title IX compliant. In the meantime, as noted by Nancy Hogshead-Makar, a former Olympic gold medal winner turned lawyer and CEO of ChampionWomen, the group should file a temporary restraining order (TRO), which a court will grant “as long as the plaintiff hasn’t waited too long, [and] as long as there’s not undue hardship for the school.” If the TRO is granted, the University would be unable disband the program since a temporary stay would be instituted while the Title IX suit is pending.
What is Title IX and the Three-Prong Test?
Title IX of the Education Amendments Act of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” This law includes athletics, which is an “educational program or activity,” and applies to educational institutions (at any level) that receives federal funding, which includes the University of North Dakota.
One of the most famous, influential, and factually analogous Title IX lawsuits was Cohen v. Brown University. In 1991, Brown demoted the women’s gymnastics and volleyball programs, as well as the men’s water polo and golf teams, from school-funded (varsity) status to donor-funded (club) status in response to a school wide cost-cutting directive. Members of the women programs filed suit approximately one year later alleging a violation of Title IX, and the plaintiff class, represented by former gymnast Amy Cohen, sued on behalf of all present, future, and potential Brown female athletes.
Prior to trial, the district court granted Plaintiffs’ motion for a preliminary injunction, “ordering, inter alia, that the women’s gymnastics and volleyball teams be reinstated to university-funded varsity status, and prohibiting Brown from eliminating or reducing the status or funding of any existing women’s intercollegiate varsity team until the case was resolved on the merits.” This ruling by the district court is likely why Nancy Hogshead-Makar suggested that the UND women file a TRO.
In the decision, the court laid out the now famous three-prong test that determines whether an institution provides effective accommodation of underrepresented (usually female) student interests and abilities. If the institution meets one of the prongs, it is deemed Title IX compliant:
(1) Substantial Proportionality: “Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments;” or
(2) History of Expansion: “Where the members of one sex have been and are underrepresented 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) Interest & Ability: “Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.”
The Court ruled that Brown did not satisfy any of the prongs because:
(1) Female representation in athletics was not substantially proportionate to the amount of females enrolled at the University full time. In the 1993-94 school year, of the 897 students that participated in intercollegiate athletics, 38.13% were female, even though 51.14% of the undergraduate enrollment that year was female. While this 13.01% disparity was deemed substantial, it must be noted that there’s no specific number that must be met and each situation is determined on a case-by-case basis (see Ollier v. Sweetwater Union High School District, 768 F.3d 843, 856 (9th Cir. 2014)).
(2) While Brown added 14 women’s athletics programs after its merger with Pembroke College (women-only college) in 1971, the only women’s varsity sport created since then was winter track in 1982. The Court felt this did not show continuing expansion of women’s athletics.
(3) A situation where a team is being created or elevated to varsity status is a different situation from one that is being cut, as was here with women’s gymnastics and volleyball. If the program was already created and has a full roster of participants that were reasonably competitive in its sport, it is clear that there is sufficient interest and ability to sustain an intercollegiate team.
Thus, the court ruled that the preliminary injunction reinstating the women’s programs would be upheld. Brown continues to sponsor Division I women's gymnastics and volleyball teams to this day.
Would the UND women's hockey players have a valid Title IX suit?
During the 2016-17 season, UND had nine varsity men’s sports and eleven varsity women’s sports (the NCAA counts indoor and outdoor track and field as two separate sports), where 245 men and 212 women participated in intercollegiate athletics. Thus, 46.3% of athletics participants were females. (Note: these numbers do not count double participants.)
Furthermore, the University of North Dakota had 14,648 students enrolled during the 2016-17 academic year, 6,970 of which were women. Therefore, 47.5% of the students at the University were female.
While there was technically a disparity between the percentage of women participating in athletics and the percentage of women enrolled at the University last school year, I would find it hard to believe that this 1.2% would be considered as “substantially disproportionate.” As a point of reference, the U.S. District Court of Colorado stated in the 1993 decision of Roberts v. Colorado State University, if the University added women's soccer, maintained the softball team, and “added a women’s varsity alpine ski racing team with 15 members, female participation would have risen to 46.6%, leaving an acceptable 1.7% gap between female athletic participation and female undergraduate enrollment.”
It also appears that the University handed out a substantially proportionate amount of athletic scholarship money to men and women last year (men: $2,275,898 – 52%; women: $2,103,158 – 48%).
However, the numbers could be different for the 2017-18 school year. Assuming that all of the 24 male swimmers, 30 female swimmers, and 26 female hockey spots are not distributed to other sports, the number of men and women participating in athletics next year would be approximately 221 and 166, respectively. Thus, the percentage of women participating in athletics will be approximately 42.8%, which would be a 3.5% decrease from 2016-17. Further, assuming that the percentage of males and females enrolled at the University stays the same, the disparity between the percentage of women participating in athletics and the percentage of women enrolled at the University would be 4.7%, creating a murkier situation as to whether female participation is substantially proportionate to male participation. As another point of reference, in the 2012 case Biediger v. Quinnipiac University, the Second Circuit held: "[w]here the 3.62% disparity between the percentage of women students enrolled at Quinnipiac and the percentage of women listed on varsity sports teams was largely caused by Quinnipiac’s voluntary decisions with respect to its athletics programs and reasonably remedied by the addition of more athletic opportunities for women, the district court correctly concluded that the disparity demonstrated a failure to provide substantially proportionate athletic participation opportunities as required by Title IX."
It should be noted that if the women's hockey team were to remain, but both swimming and diving programs were eliminated, the disparity would be just 1.1%.
[NOTE: I don't have all the statistical information regarding enrollment and athletic rosters at UND for the upcoming school year, and it is possible that UND grants the same amount of athletic scholarship money to female athletes and/or adds spots to already existing women's teams, so the above hypothetical numbers are merely educated guesses.]
As stated earlier, there is no bright-line number for compliance as each situation is looked at on a case by case basis. (See Office of Civil Rights Clarification Letter dated January 16, 1996, stating that the substantial proportionality "determination depends on the institution's specific circumstances and the size of its athletic program, OCR makes this determination on a case-by-case basis, rather than through use of a statistical test."). Therefore, it is up for debate as to whether the University of North Dakota would be found as Title IX compliant under this prong. Depending on the numbers for the upcoming school year, it truly could go either way.
The best case to illustrate this prong is Boucher v. Syracuse University, which was decided by the Second Circuit in 1999. As mentioned in the decision, Syracuse established five of its nine women’s intercollegiate teams in 1971 when it first funded women’s sports, later added three more sports in 1981, and then women’s soccer in 1997 and women’s lacrosse in 1998 (the suit was commenced in 1995). The school also announced their plans to start softball in 1999. Based on these facts, the court ruled that Syracuse demonstrated a history of expansion of women’s athletics.
Based on my research of UND media guides (which I took way too much time doing), women’s basketball, cross-country, softball, volleyball, and indoor and outdoor track and field were officially founded in the 1970s (women started playing basketball in the 1890s). It appears that women’s tennis was brought back in 1998 or 1999 after a decade long hiatus, along with women’s soccer and golf. The last women’s sport to be implemented was women’s hockey in 2002. Since 2002, no new women’s sports have been added, and women’s hockey and swimming and diving have been discontinued.
If you’re interested, here’s a video discussing the history of women’s athletics at UND:
While I would need more statistics demonstrating the percentage of women participating in athletics over the years to make a more accurate evaluation, it does not appear on its face that UND has shown a “history of expansion.” Over the past 15 years, the University has not added a single women’s intercollegiate program and in fact has eliminated two programs. Comparatively, the Cohen court found that Brown University did not meet this prong since no women’s sports were added in the nine years prior to the filing of the lawsuit. Also, as noted by the Cohen court, just because UND men’s sports have been cut recently does not mean that this prong is satisfied.
Thus, it is unlikely that UND would satisfy this prong.
As stated previously, this prong is difficult for an institution to satisfy when they’re cutting a program. The presence of student-athletes on a team and their desire to continue playing is sufficient to prove interest and ability to play the sport. In the case of the UND women’s hockey team, there are clearly women (many of whom are world-class) interested in playing hockey, along with a full staff and a beautiful arena.
Therefore, UND wouldn’t be able to use this prong to their advantage.
Based on this quick analysis, it appears that the UND women’s hockey players might have legitimate grounds in bringing a Title IX claim since the University would likely not satisfy the last two prongs and a strong argument could be made that they don't satisfy the first prong either. While the UND athletics department employs an Associate Athletics Director of Compliance and a Title IX Coordinator, who I’m sure keep a very close eye on the department to make sure they’re compliant with the law, there appears to be some questions as to whether the University will be compliant with Title IX with the disbandment of the women's hockey program. It seems that they recognize this possible issue, since they have hired the law firm Baker Donelson as outside counsel to guide them through this process.
I’ll keep tabs on what happens moving forward.