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FAVIA v. INDIANA UNIV. OF PENNSYLVANIA

November 2, 1992

DAWN FAVIA, WENDY SCHANDELMEIER, KIM DALCAMO, AMY PHAEHLER, on behalf of themselves and all similarly situated individuals, Plaintiffs,
v.
INDIANA UNIVERSITY OF PENNSYLVANIA, LAWRENCE PETTITT and FRANK CIGNETTI, Defendants.


COHILL, JR.


The opinion of the court was delivered by: MAURICE B. COHILL, JR.

COHILL, D.J.

 Background

 Before the Court is a class action lawsuit brought by women students at Indiana University of Pennsylvania ("IUP") alleging systemic discrimination on the basis of gender in IUP's intercollegiate athletic program. The action is brought on behalf of the women athletic program participants and all present and future IUP women students or potential students who participate, seek to participate or are deterred from participating in intercollegiate athletics sponsored by IUP. The named plaintiffs had been members of the women's gymnastics and field hockey teams. The school, the school's President, Dr. Lawrence Pettit, and the Director of Athletics, Frank Cignetti are the named defendants. Pursuant to Rule 65, Fed. R. Civ. P., the plaintiffs seek a preliminary injunction to have the two teams reinstated and to prohibit the defendants from eliminating any more women's teams.

 This case arises out of Title IX of the Education Amendments of 1972, 20 U.S.C. ยง 1681 et seq. and the equal protection clause of the Fourteenth Amendment. But plaintiffs here rely solely on alleged Title IX violations as the basis for their preliminary injunction motion. They contend that IUP fostered disparities in athletic participation opportunities on the basis of gender by providing disparate levels of support to male and female athletes and by allocating athletic scholarships in a gender discriminatory way.

 On October 21, 22, and 23, 1992, we conducted a preliminary injunction hearing. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, we now make the following findings of fact and conclusions of law. Pursuant to Fed. R. Civ. P. 65(a)(2), the trial of this action on the merits is hereby consolidated with the hearing on the preliminary injunction held on October 21, 22, and 23, 1992, and the Court's Preliminary Injunction shall become a permanent injunction without further proceedings, unless the Court receives notice, by November 23, 1992, that a party wishes to introduce further evidence in support of its position.

 Findings of Fact

 IUP is a university within the Pennsylvania State System of Higher Education. It is federally funded and thus subject to the mandates of Title IX. In 1990-91, IUP had 10,793 students, 4790 men and 6003 women. Thus, about 55.61 percent of the IUP student population was female at the time of the decision to cut intercollegiate athletic teams.

 In 1991, IUP was faced with a budget crisis. There were substantial reductions in both state and federal aid to the school, and as a result, the university administration advised its various departments that they had to reduce their budgets, including the Department of Athletics, which was instructed to reduce its budget by $ 350,000.

 In August 1991, an announcement was made that the women's gymnastics and field hockey teams and the men's soccer and tennis teams were going to be eliminated beginning with the 1992-93 school year. Prior to the 1991 cutback, IUP had a total of 503 athletes on its intercollegiate teams, 313 male and 190 female. The percentage of female athletes was 37.77 percent, compared to the entire female student population percentage of 55.61 percent. After these program cutbacks, including normal attrition on the football team, roughly 397 students were participating in interscholastic athletics, 248 males and 149 females, or 36.51 percent females.

 IUP has three categories of sports teams: (1) intercollegiate varsity teams, which belong to the National Collegiate Athletic Association ("N.C.A.A.") and bring the school the most money and prestige of the three categories, (2) club teams, which are informal, basically student-run organizations, and (3) intramural teams, which are open to all students. Varsity teams, the "official" representative of the university, have full- and part-time coaches, designated schedules, rules and regulations. Varsity teams also have access to ice, water, storage and locker space, and have professional athletic trainers and a traveling budget for away games. They also have more funding and coaches than the intramural or club teams. At the time of the 1991 cutbacks, IUP had roughly eighteen varsity sports (half male and half female as far as numbers of teams), 18 club sports, and 44 intramural sports (19 female, 5 coed, and 20 male).

 Before the cutbacks, IUP had nine men's and nine women's intercollegiate athletic teams. Because of the elimination of the four teams, IUP now has seven teams per gender.

 Apparently, Mr. Frank Cignetti, the Athletic Director, believed that it was best to eliminate equal numbers of men's and women's teams, recommended this to the Athletic Policy Committee, which in turn recommended the cuts to IUP's previous president. His successor, defendant Dr. Lawrence Pettit testified at the hearing, but since he had just become president of the university on August 1, 1992, he really knew little about the factual background leading up to this case.

 These teams were eliminated because they were no longer viable, according to the witnesses for IUP. Dr. David DeCoster, Vice-President of Student Affairs, cited a declining national trend in women's gymnastics and field hockey, but testified that the popularity of women's soccer is increasing. He, Mr. Cignetti, and others testified that it was the intent of the university to replace the women's gymnastic and field hockey teams with a women's varsity soccer team at sometime in the future when there was less of a financial crunch at the university. Dr. DeCoster admitted that there were no women members of the sub-committee which drafted the evaluation model of sports at IUP, nor were there women present when the Athletic Policy Committee voted to eliminate the four teams, although there may have been a female student representative.

 The plaintiffs' case may be considered in two phases. They presented the testimony of the three female student/athlete plaintiffs concerning the effect of the elimination of the two women's teams, and they secondly presented a great deal of testimony through present and former IUP staff members and one expert witness as to the general atmosphere at IUP relative to the participation of women in athletics.

 Dawn Favia, one of the student plaintiffs, was recruited to go to IUP and to participate in the gymnastics team. She had been involved in gymnastics since she was six years old. She was awarded a scholarship of $ 1,000 per semester as a member of the gymnastics team. She would not have gone to IUP if she had known that the gymnastics team was to be cut.

 Another plaintiff, Wendy Schandelmeier, was a student "walk-on" on the gymnastics team. She had been in competitive gymnastics since the fifth grade. She has two years of eligibility remaining.

 Amy Pfaehler, the last student plaintiff, was on the field hockey team. She had played at the sport since the seventh grade. When the field hockey team was eliminated, she took it upon herself to form a team. Some thirty-five women came out for it, and they created a seven game schedule for themselves, which they have been playing this year.

 Kofie Montgomery, a health and physical education instructor at IUP since 1977, was the women's field hockey coach. She testified that nine other schools in the conference in which IUP competes have women's field hockey teams. She did not receive additional compensation as a coach but was relieved of teaching a two credit course in return for her services as a coach. She now keeps the field hockey uniforms for the team in the trunk of her car, because storage space has been eliminated.

 The statistics speak for themselves and make a strong case for the women plaintiffs. We find that while the number of female students greatly exceeds the number of male students at IUP, roughly 55 percent to 45 percent, the percentage of female versus male athletes is quite the opposite. In 1991-92, 37 percent of all athletes were female and 63 percent were males. With the elimination of the two women's teams the percentage of women athletes dropped to 36 percent and the men increased to 64 percent.

 We heard considerable testimony about the general state of IUP athletics for women. Ruth Podbielski, former associate director of athletics at IUP, retired in 1987 after 31 and a half years at IUP. The first women's varsity team, she said, was formed in 1970. Prior to that all women's teams were club teams.

 When Frank Cignetti, the athletic director, came to IUP in 1982 there were ten varsity women's teams. This subsequently dropped to nine, and with the cuts under consideration here there are only seven.

 According to Ms. Podbielski, who is apparently an institution herself at IUP, the women athletes and teams have generally been behind the men's in terms of priorities. She felt that Mr. Cignetti was well motivated toward all athletes and athletics (and so do we), and he made some very constructive improvements when he came to the university in 1982, but with the budget problems, the situation has deteriorated.

 IUP plays in what is known as Division II in college athletics, and it is part of the N.C.A.A. For a while an organization known as the "Association of Intercollegiate Athletics for Women" or "A.I.A.W." sponsored championship meets in various women's sports. There was some fierce competition from the N.C.A.A.; eventually the A.I.A.W. lost the battle and is now defunct. This came about when the N.C.A.A. sanctioned women's championships.

 The N.C.A.A. had a history of battling Title IX and lost a court case on the issue of whether Title IX ...


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