Cook v. Colgate University

• Decision Date: 28 September 1992
• Docket Number: No. 90-CV-411.,90-CV-411.
• Parties: Jennifer Baldwin COOK, Melissa Ehlers, Christine Price Thayer Jaques, Julie Wolff and Michael Fitzgerald, Plaintiffs, v. COLGATE UNIVERSITY, Defendant.
• Court: U.S. District Court — Northern District of New York

802 F. Supp. 737

Jennifer Baldwin COOK, Melissa Ehlers, Christine Price Thayer Jaques, Julie Wolff and Michael Fitzgerald, Plaintiffs, v. COLGATE UNIVERSITY, Defendant.

No. 90-CV-411.

United States District Court, N.D. New York.

September 28, 1992.

COPYRIGHT MATERIAL OMITTED

Seidenberg, Strunk & Goldenberg (Faith A. Seidenberg, Bonnie Strunk, of counsel), Syracuse, N.Y., for plaintiffs.

Evans, Severn, Bankert & Peet (Robert J. Lutz, of counsel), Utica, N.Y., for defendant.

MEMORANDUM-DECISION AND ORDER

HURD, United States Magistrate Judge.

I. Introduction.

The plaintiffs are all female (Michael Fitzgerald, student coach of the women's club ice hockey team, withdrew from this action), and former students at the defendant Colgate University ("Colgate"), located in Hamilton, New York. They are also former members of the Colgate women's club ice hockey team.

The complaint was filed on April 10, 1990, and Colgate filed an answer on June 18, 1990. In the complaint, the plaintiffs allege that Colgate's 1988 decision to maintain women's ice hockey as a club sport, violated Title IX, 20 U.S.C. § 1681 et seq., as amended by the Civil Rights Restoration Act of 1987, the regulations of the Department of Education, 34 C.F.R. Chapter 1, subpart D, § 106.1 and § 106.41, and the Fifth and Fourteenth Amendments of the United States Constitution. Colgate denied the material allegations in the complaint.

The court conducted a three day nonjury trial on March 31, April 1 and 2, 1992, in Utica, New York. The parties filed posttrial proposed findings of fact and conclusions of law. This Memorandum-Decision and Order constitutes the court's findings of fact and conclusions of law.

II. Background.

Until 1970, Colgate was an all male school. In that year, women students were admitted for the first time. Enrollment of women has increased steadily until the present day, when it is almost fifty per cent (50%). In 1990/91, the total enrollment was 2,690, with 1,450 men (53%), and 1,240 women (47%).

Colgate has had a strong competitive men's varsity ice hockey team for many years. Together with men's football and men's basketball, it is an "emphasized" sport, which means it receives additional financial aid and other support. In 1990, women's basketball also became an "emphasized" sport. The men's varsity ice hockey team is a member of the Eastern Collegiate Athletic Conference (ECAC) and competes in the National Collegiate Athletic Association (NCAA) tournament. It has always been a leading team in the Conference, and has challenged for the Division I NCAA championship in recent years.

Women's ice hockey at Colgate has had no such tradition or illustrious past. However, a club team was formed shortly after women were first admitted, and the team has been competitive in the club league since that time.

In addition to its twenty-three varsity teams, Colgate also sponsors between eighteen to twenty club teams. Club teams are somewhat informal, principally run by students, and range from ultimate frisbee to rugby. It is obvious that a varsity team has much greater status, both within and without the university community, than a club team. A varsity team is an "official" representative of the university with full-time coaches, designated schedules, rules, and regulations. A varsity team is provided equipment, practice facilities, and travel accommodations. A club team is much more "unofficial", with more informal schedules, practices, and competition. Its equipment, facilities, and travel are of a more "make shift" nature.

In 1979, 1983, 1986, and 1988, the women's club ice hockey team applied for varsity status. In order for a sport to attain varsity status at Colgate, an application must be made to the Committee on Athletics which consists of faculty and student members, with the Director of Athletics as a nonvoting advisory member. If an application for varsity status is approved by the committee, and with the consent of both the Director of Athletics and the Dean of the Facility, the proposal is then presented to the President for final approval. If an application is rejected by the committee, the applicants may reapply in two years.

The women's ice hockey applications were rejected in all four years. In 1988, members of the women's ice hockey team presented a detailed twenty-nine page proposal. Plaintiffs' Exhibit "15". On November 7, 1988, plaintiff Cook, with two other hockey players, made an oral presentation to the committee, followed by some questions and answers. After a discussion by the committee, a vote was postponed until the next meeting. On November 14, 1988, the committee unanimously voted to deny the application and elected to maintain women's ice hockey as a club rather than a varsity sport. The plaintiffs were notified in writing regarding the committee's decision. Plaintiffs' Exhibit "4". The committee gave the same four reasons for the rejection as it had given in both 1983 and 1986:

(1) Women's ice hockey is rarely played on the secondary level;

(2) Championships are not sponsored by the NCAA at any intercollegiate level;

(3) The game is only played at approximately fifteen colleges in the east; and

(4) Hockey is expensive to fund, and would heavily impact a total intercollegiate program by requiring: increased locker room space, large budget, a full-time coach, a trainer, increased training room load, increased equipment room size, heavy laundry demand, and coach supported financial aid.

Plaintiffs' Exhibit "3". At trial, Colgate advanced two additional reasons, to wit, a lack of general student interest in women's ice hockey, and a lack of ability by the members of the women's club ice hockey team. This action was commenced by the plaintiffs as a result of that 1988 decision, seeking elevation to varsity status, compensatory damages, and attorneys' fees.

III. Legal Standards.

Title IX of the Education Amendments of 1972, Pub.L. 92-318, as amended, 20 U.S.C. § 1681, et seq., prohibits gender discrimination in education programs or activities receiving federal financial assistance. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 514, 102 S.Ct. 1912, 1914, 72 L.Ed.2d 299 (1982). At issue here is Title IX's "program specific" prohibition of gender discrimination which states in part:

Prohibition against discrimination;

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, ....

20 U.S.C. § 1681(a).

Colgate is an educational institution receiving Federal financial assistance, and thus its athletic department is subject to Title IX.¹ The plaintiffs, as women whose past athletic opportunities have been restricted, are entitled to the protection of Title IX.

In addition to the text of Title IX, the Department of Education has promulgated regulations governing the administration of programs that receive federal funding. The regulations applicable to this case are found at 34 Code of Federal Regulations § 106.41 et seq. as follows:

§ 106.41 Athletics.

(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors:

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;

(2) The provision of equipment and supplies;

(3) Scheduling of games and practice time;

(4) Travel and per diem allowance;

(5) Opportunity to receive coaching and academic tutoring;

(6) Assignment and compensation of coaches and tutors;

(7) Provision of locker rooms, practice and competitive facilities;

(8) Provision of medical and training facilities and services;

(9) Provision of housing and dining facilities and services;

(10) Publicity.

Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.

Plaintiffs contend that Colgate's refusal to upgrade the women's club ice hockey team violated Title IX and the Fifth and Fourteenth Amendments. Initially, Title IX and the implementing regulations can be violated without showing a specific intent on the part of the educational institution to discriminate against women. Haffer v. Temple University of Commonwealth...