Kelley v. Board of Trustees, 93-3205

• Decision Date: 05 October 1994
• Docket Number: No. 93-3205,93-3205
• Citation: 35 F.3d 265
• Parties: , 94 Ed. Law Rep. 115 William M. KELLEY, Joseph S. Rossi, Robert E. Sims, et al., Plaintiffs-Appellants, v. BOARD OF TRUSTEES, University of Illinois, Morton W. Weir, Ronald E. Guenther, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 265

35 F.3d 265

63 USLW 2158, 94 Ed. Law Rep. 115

William M. KELLEY, Joseph S. Rossi, Robert E. Sims, et al., Plaintiffs-Appellants, v. BOARD OF TRUSTEES, University of Illinois, Morton W. Weir, Ronald E. Guenther, et al., Defendants-Appellees.

No. 93-3205.

United States Court of Appeals, Seventh Circuit.

Argued April 11, 1994.

Decided Sept. 1, 1994.

Rehearing En Banc Denied

Oct. 5, 1994.

John H. Otto (argued), John Gadau, Zimmerly, Gadau, Selin & Otto, Champaign, IL, for plaintiffs-appellants.

James C. Kearns (argued), Fred K. Heinrich, Heyl, Royster, Voelker & Allen, Urbana, IL, for defendants-appellees.

Ellen J. Vargyas, Deborah L. Brake, National Women's Law Center, Washington, DC, for amicus curiae, National Women's Law Center, Cal. Women's Law Center, National Ass'n for Girls and Women in Sport, National Softball Coaches Ass'n, N.W. Women's Law Center, Now Legal Defense and Educ. Fund, Trial Lawyers for Public Justice, Women's Sports Foundation.

James P. Turner, Asst. Atty. Gen., Jessica Dunsay Silver, Linda F. Thome, Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, DC, for amicus curiae, U.S.

Daniel V. Kinsella, Burditt & Radzius, Chicago, IL, for amicus curiae, College Swimming Coaches Ass'n of America, National Interscholastic Swimming Coaches Ass'n of America, American Swimming Coaches Ass'n, Ill. Swimming Ass'n, National Wrestling Coaches Ass'n, U.S. Swimming.

Before CUMMINGS, FLAUM and KANNE, Circuit Judges.

CUMMINGS, Circuit Judge.

On May 7, 1993, the University of Illinois announced that it intended to terminate four varsity athletic programs, including the men's swimming program, effective July 1, 1993. On May 25, 1993, the plaintiffs, all members of the University of Illinois' men's swimming team prior to its termination, brought suit against the Board of Trustees of the University, its chancellor, athletic director and associate athletic director ("defendants"), alleging that defendants violated Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681) and the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs' complaint sought damages, as well as an injunction prohibiting the defendants from terminating the men's swimming program, under 42 U.S.C. Sec. 1983 and 42 U.S.C. Sec. 1985(3). In response, defendants filed a motion to dismiss, which the parties agreed to convert to a motion for summary judgment. Plaintiffs moved for a preliminary injunction. After hearing testimony in support of plaintiffs' request for a preliminary injunction and receiving affidavits in support of defendants' motion for summary judgment, the district court granted summary judgment in favor of the defendants and found that the request for a preliminary injunction was therefore moot, 832 F.Supp. 237. Plaintiffs now appeal.

I.

Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 (1988)) provides that

No person ... 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 [other than those specifically described in the Act] receiving Federal financial assistance....

In 1974, Congress requested that the Secretary of the Department of Health, Education and Welfare prepare and publish regulations implementing the provisions of Title IX, "includ[ing,] with respect to intercollegiate athletic activities[,] reasonable provisions considering the nature of particular sports." Pub.L. 93-380, 88 Stat. 484, 612 (1974). Promulgated the following year, the pertinent regulation allows schools to field single-sex teams in certain circumstances ¹ but requires that they "provide equal athletic opportunity for ... both sexes." 34 C.F.R. Sec. 106.41(c). Section 106.41(c) sets out the factors to be examined in determining whether a school provides equal athletic opportunity. Chief among these, and of primary concern here, is "[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes." Although Sec. 106.41(c) lists nine other factors, ² an institution may violate Title IX solely by failing to accommodate effectively the interests and abilities of student athletes of both sexes. See Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 828 (10th Cir.1993), certiorari denied, --- U.S. ----, 114 S.Ct. 580, 126 L.Ed.2d 478 (1993); Cohen v. Brown University, 991 F.2d 888, 897-898 (1st Cir.1993).

In 1979, the Department of Health, Education and Welfare, in an effort to encourage self-policing, issued a policy interpretation providing "guidance on what constitutes compliance with the law." 44 Fed.Reg. 71,413 (1979). According to the policy interpretation, an institution has effectively accommodated the interests of its male and female students if it satisfies any of three benchmarks:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

(2) 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) Where members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion ..., 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.

44 Fed.Reg. 71,418 (1979). In essence the policy interpretation establishes a presumption that "effective accommodation" has been achieved if males and females at a school participate in intercollegiate sports in numbers substantially proportionate to the number of students of each sex enrolled at the institution (Benchmark 1). If substantial proportionality has not been achieved, a school must demonstrate either that it has a continuing practice of increasing the athletic opportunities of the underrepresented sex (Benchmark 2) or that its existing programs effectively accommodate the interests of that sex (Benchmark 3).

II.

In 1982, the Office of Civil Rights of the United States Department of Education ³ determined that the University of Illinois had denied its female students equal athletic opportunities. Relying on the University's representations that it would remedy the disparity within a reasonable period of time, the Office of Civil Rights concluded that the school was not in violation of Title IX. A decade later, however, female participation in intercollegiate athletics at the University of Illinois continued to be disproportionate to female undergraduate enrollment. Thus in 1993, for example, while women comprised 44% of the student body of the University, they accounted for only 23.4% of the school's intercollegiate athletes.

It was against this backdrop that the decision to cut the men's swimming program was made. Faced with a significant deficit in its athletic budget--$600,000 before the receipt of substantial, unanticipated income from a college football bowl game--the University determined that it would need to reduce athletic costs significantly. Determined to field only teams "capable of competing for championships in the Big Ten Conference [the athletic conference to which the University belongs] and the National Collegiate Athletic Association" (Appellees' Br. at 7), the University concluded that it would have to discontinue certain intercollegiate teams in order to eliminate its deficit.

While the University's decision to reduce its athletic offerings was motivated by budget considerations, other considerations--including the need to comply with Title IX--influenced the selection of particular programs to be terminated. The final selection of the teams to be eliminated was made by defendant Morton Weir, then chancellor of the University's Urbana-Champaign Campus. In reaching his decision, Chancellor Weir relied on the recommendation of the Athletic Board of Control, a body that advises the chancellor on athletic issues. The Athletic Board of Control, in turn, relied on advice from the University's Athletic Director, defendant Ronald Guenther. In making his recommendation, Guenther evaluated all 19 sports offered by the University against seven criteria: (1) whether or not the Big Ten Conference and the National Collegiate Athletic Association sponsored a championship in the sport; (2) the tradition of success of the sport at the University; (3) the level of interest and participation in the sport at the high school level; (4) the adequacy of the University's facilities for the sport; (5) the level of spectator interest in the sport; (6) gender and ethnic issues; and (7) the cost of the sport. Guenther recommended that four teams--men's swimming, men's fencing, and men's and women's diving--be cut, a recommendation adopted by Chancellor Weir.

Men's swimming was selected for termination because, among other things, the program was historically weak, swimming is not a widely offered athletic activity in high schools, and it does not have a large spectator following. The University did not eliminate the women's swimming program because the school's legal counsel advised that such action would put the University at risk of violating Title IX.

III.

The University's decision not to terminate woman's swimming program was--given the requirements of Title IX and the applicable regulation and policy interpretation--extremely prudent. The percentage of women involved in intercollegiate athletics at the University of Illinois is substantially lower than the percentage of women enrolled at the school. If the University had terminated the women's swimming program, it would have been vulnerable to a finding that it...