(09-25-2020 08:02 AM)Tribal Wrote: [ -> ]I don't think it alleges current violations, but is being explored in anticipation of T9 violations.
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I'm an attorney and have worked on a number of matters analyzing Title IX compliance for college athletics programs. Here is what the attorney is saying in the letter.
First, he is saying that W&M was already not in compliance with the first prong of Title IX (it's a three part test as applied to college athletics and you have to meet each prong to be in compliance). This prong requires that a university provide equal opportunities for/effectively accommodate the athletics interests of its male and female students.
There are 3 ways a school can satisfy this requirement. The most clear cut way to do it is by showing that the percentages of male and female athletes are substantially proportionate to the percentages of male and female students enrolled at the school. A variance of 2% is considered ok to meet this factor.
Second, the letter is saying that W&M's rate before the cuts fell well outside this 2% variance range. The letter says there was an 11.4% variance, where there were more male athletes than female athletes even though W&M is majority female (according to the letter, W&M is 57.7% female but only 46.3% of its athletes are female, 344 male athletes vs 296 female athletes). I haven't checked the EADA data to see if the 11.4% variance is accurate, but let's assume it is.
Third, the letter says that even with the cuts W&M's variance rate is still not in compliance with the 2% variance rate. It says the cuts will bring the variance rate to around 6.1% (51.6% of athletes will now be women), still well off the allowable 2% variance rate. The letter says that the solution to this problem is backtracking on the cuts to the women's programs (volleyball, swimming, and gymnastics) as that will then bring W&M within the 2% variance range by adding about 65 female athletes. The lawyer is threatening to file the lawsuit if the women's programs aren't brought back and W&M remains outside the 2% variance range. So he's saying you're currently not in compliance, but you can be if you bring the women's programs back. If you do that, the lawsuit won't be filed. If you don't, the lawsuit will be filed.
However, there are two other ways to meet the first prong of Title IX besides being within the 2% variance rate. The second way is by showing a history and continuing practice of program expansion for the underrepresented sex (women here). This is a fact intensive inquiry and you'd have to examine a complete chronological history of when varsity sports were added and dropped at the school, and how participation numbers went up and down with the additions and drops. There'd have to be an analysis of W&M’s efforts to monitor its students’ interest and abilities and its policies on requesting the addition of sports/elevating club teams, and any plan to expand or add programs for women. W&M could be relying on this test in saying it is in compliance with the first prong of Title IX, as the cuts will result in W&M now having 220 male athletes and 235 female athletes. So W&M went from a situation where it had significantly more male athletes, to now having more female athletes. It would, in my opinion, be hard to convince a court that W&M is violating Title IX in a situation like that.
The third way to meet Title IX's first prong is by showing a school is effectively accommodating the athletics interests and abilities of the underrepresented sex. I doubt W&M would rely on this test as I think they'd lose that argument.
W&M could still be planning to get within the 2% variance rate by adding softball and rowing, as has been discussed. But even if they aren't planning on adding those (or other women's sports), I think any Title IX lawsuit against W&M would likely fail.