women, but 55.61 percent of the students were women. Once the gymnastics and field hockey teams were cut (41 women), and men's tennis, soccer and football team attrition are factored in, the percentage of women intercollegiate athletes dropped to 36.51 percent. We believe that the pre-1991 status of women's proportionality requires remedial action to correct the discriminatory effects of IUP's policies, 34 C.F.R. § 106.3(c). The 1991 cuts simply exacerbated an already existing Title IX violation.
B. Second Prong
Defendants have failed to override the proportionality requirement by not showing a history of expanding its athletic opportunities to respond to the developing interest of its women students. 44 Fed. Reg. 71418 (Dec. 11, 1979). In the years before the 1991 cuts, IUP may be congratulated for some expansion of women's sports, but as the statistics show, in 1992 they have regressed. The levels of opportunities for women to compete went from low to lower, and the 1991 cuts were not responsive to the needs, interests, and abilities of with women students. Women's athletic expenditures in 1991 were $ 2.75 for each $ 8.00 spent on men's programs, women athletes received 21.46 percent of IUP's athletic scholarship funds (compared to 35 percent women participating), while only 36.51 percent of intercollegiate athlete positions were filled by women. Although it may at sometime in the future, IUP has not elevated its popular women's club soccer to a varsity status.
You can't replace programs with promises.
Defendants' counsel urges us to look to other schools' proportionality statistics, cited in numerous OCR investigations. But these cases are nonpersuasive because the universities under investigation had not cut back on women's teams. IUP has.
C. Third Prong
Although the university has continued to honor its scholarship commitments to women athletes whose teams have been eliminated and offered to assist athletes in transferring to other schools, defendants have not shown that this fully and effectively accommodates the interests and abilities of women at IUP. Nor does the promise of a women's varsity soccer team at some indeterminate future time meet the interests and abilities of female athletes.
We are not persuaded by IUP's defenses. "Financial concerns alone cannot justify gender discrimination." Haffer, 678 F. Supp. at 530. Men's athletics have reaped the benefits of favoritism. Defendants also claim that because the N.C.A.A. sponsors no gymnastics championship, the elimination of gymnastics was justified. We disagree. See Cook v. Colgate, 90-CV-411 slip op. at 21 (M.D.N.Y. Sept. 28, 1991).
The gymnastic team had plenty of quality competition, as did the field hockey team. Although the field hockey team had a poor win/loss record, this probably stems from a tough conference, but even more likely is the negative effect of lack of funding, scholarships, and staff. The testimony of the named plaintiffs clearly showed an interest and commitment to their respective sports, and IUP has now denied the plaintiffs participation in their sports.
Finally, our decision to grant plaintiffs' motion for a preliminary injunction must factor in the public interest in the granting of the preliminary injunction. The public has a strong interest in the prevention of any violation of constitutional rights.
In summary, the women plaintiffs merely seek what the law requires, equal athletic opportunities. We understand the fiscal constraints placed on IUP's Athletic Department, but new monies or reallocation of funds to reinstate these teams is the least the Athletic Department can do in light of its legal violations.
Maurice B. Cohill, Jr., Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 812 F. Supp. 578.
And now, to-wit, this 2nd day of November, 1992, it is hereby ORDERED, ADJUDGED and DECREED that:
1. This action shall proceed as a class action.
2. Defendants shall restore the women's gymnastics and field hockey teams at Indiana University of Pennsylvania to their former status in the intercollegiate athletic program forthwith.
3. Coaching staff, uniforms, equipment, facilities, publicity, travel opportunities and all other incidentals of an intercollegiate athletic team shall be provided to the women's gymnastics and field hockey teams on a basis equal to that provided during the 1991-92 school year.
4. Funding shall be immediately provided to the two teams in an amount equal to that provided during the last school year.
5. 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.
Maurice B. Cohill, Jr., Judge
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