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Women athletes at Slippery Rock University won a major court victory last week when a federal judge in Pittsburgh blocked the state college from eliminating two women’s varsity teams – swimming and water polo – in the upcoming academic year. In her 23-page opinion in Choike v. Slippery Rock University of Pennsylvania, Chief U.S. District Judge Donetta W. Ambrose found that SRU has violated Title IX of the Education Amendments of 1972, the federal law that says a college’s sports program must provide “equal athletic opportunity” for members of both sexes. Ambrose said the evidence presented to her in an injunction hearing “unequivocally establishes” that SRU “has never satisfied the substantial proportionality test since the inception of Title IX more than 25 years ago.” In the opinion, Ambrose directly addressed criticisms lodged by New York Times columnist John Tierney, who complained in a July 11 column that it was unfair to require schools to cut men’s athletic programs to satisfy Title IX’s substantial proportionality requirement where those schools do not have enough female student athletes. “Title IX allows a school to satisfy Title IX without cuts to men’s programs if it can demonstrate that it is fully and effectively accommodating the interests of its female students,” Ambrose wrote. But SRU couldn’t meet that test, Ambrose said, “because it has eliminated two viable women’s teams which the student body has demanded be reinstated.” The ruling is a victory for attorneys Abbe F. Fletman and Lizanne V. Hoerst of Flaster Greenberg, and Terry L. Fromson and Susan J. Frietsche of the Women’s Law Project. “It’s like the sun came back out,” said lead plaintiff Beth Choike, captain of the Slippery Rock swim team and a member of the water polo team. “We’re all so happy that we’re going to have a chance to play again.” According to court papers, SRU announced in January that, for budgetary reasons, it planned to eliminate eight varsity sports teams – men’s and women’s swimming, men’s and women’s water polo, women’s field hockey, men’s golf, men’s wrestling and men’s tennis. When lawyers for a group of women athletes objected, the school reversed its decision to cut the women’s field hockey team, but stood by its decision to cut women’s swimming and water polo. Now Ambrose has rejected the college’s argument that it simply cannot afford to maintain the teams. “I do not mean to minimize SRU’s valid concern of judicial interference with its independence in deciding how to allocate its limited financial resources,” Ambrose wrote. Although Title IX does not “override financial necessity,” Ambrose found that courts have consistently held that “the pruning of athletic budgets cannot take place solely in comptroller’s offices, isolated from the legislative and regulatory imperatives that Title IX imposes.” SRU officials, she said, “did precisely that” when they decided to eliminate three popular women’s teams despite knowing that the school was not in compliance with Title IX. In court papers, lawyers for the college conceded that the current sports programs do not satisfy Title IX’s “substantial proportionality” test, but insisted that the school plans to be compliant in the 2006-2007 academic year through the use of a “roster management” program. Ambrose was unimpressed, saying that “having a plan to ameliorate inequities is not the same as having ameliorated them.” The college’s plan, Ambrose said, was “laudable,” but “not convincing,” because the school has admitted that “attempts to achieve substantial proportionality through roster limits in the past have failed.” In testimony, Ambrose noted, one SRU official conceded that he permitted coaches of men’s teams to increase roster size “despite established limits and despite knowledge that SRU was then in violation of Title IX,” in order to make those teams “competitive.” As a result, Ambrose said, “I am hard- pressed at this juncture to believe it might not happen again.” Ambrose also found that SRU had increased the roster size for the majority of women’s teams in an effort that “appears to be purely artificial.” One school official, she said, testified that the number of positions allocated to women’s teams “was derived, not from any research as to the needs or wants of the female students, but based purely on the number of positions that coaches wanted to make available to the male athletes.” As examples, Ambrose noted that the college “offered no other explanation” for why it had added positions to the women’s softball, tennis, soccer and cross-country teams. “There certainly was no indication that there had been a sudden increase of interest by SRU’s female students in these programs,” Ambrose wrote. The facts, Ambrose said, seemed to conflict with some of the testimony of SRU officials. One high-ranking athletic official said he had instructed the coaches not to “pad” teams with unnecessary players because he did not want teams comprised of “bench warmers,” who would be denied the opportunity to compete in a meaningful way. In light of that testimony, Ambrose said, “I find it odd that women’s cross country would be allocated 28 positions, while men’s cross country would be allocated only 16 positions, or why men’s soccer would be allocated 25 positions, while women’s soccer would be allocated 28.” Although the added positions on women’s teams might appear to satisfy Title IX’s requirements on paper, Ambrose found that was no evidence that the current SRU female student population “would actually fill these newly created positions.” And SRU’s elevation of the women’s club lacrosse team to varsity status in order to satisfy Title IX was “also suspect,” Ambrose said, because “nobody from the team requested such action.” Ambrose concluded that SRU’s roster management plan had failed to create truly equal athletic opportunity. “In short, SRU’s plans to achieve substantial proportionality through roster management and the addition of women’s lacrosse, while laudable, are simply too speculative at this juncture to satisfy Title IX,” Ambrose wrote. “Unless and until SRU can demonstrate that those additional positions are meaningful – i.e., filled – they have not complied with the substantial proportionality prong of Title IX,” Ambrose wrote. (Copies of the 23-page opinion in Choike v. Slippery Rock University of Pennsylvania , PICS No. 06-1011, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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