The opinion of the court was delivered by: Ambrose, Chief District Judge
FINDINGS OF FACT CONCLUSIONS OF LAW and ORDER OF COURT
1. Plaintiffs Elizabeth Laura Choike, Ashley Guinevere Stoner, Heather Walbright, Jessica Student, Jennifer Venet, Elizabeth Penning, Laura A. Sanford, Emily C. Campbell, Rebecca Zinn, Alison Nicole Nuckols, Sarah S. Sander and Rachael Bienias are female student athletes ("Student Plaintiffs") who attend Defendant Slippery Rock University of Pennsylvania of the State System of Higher Education ("SRU").
2. Plaintiff James V. Yeamans was the coach of the women's water polo team from 1998 through June of 2006. He also served as the coach of the women's swimming teams at SRU during the 2005-2006 school year. He has been, and is currently, employed by SRU as the manager of the Aebersold Student Recreation Center ("the Rec Center").
3. Defendant SRU is a public corporation that is a member of the Pennsylvania State System of Higher Education and receives federal financial assistance.
4. Defendant Robert Smith, who is being sued in his official capacity, is the President of SRU. He is responsible for SRU's overall operations and for ensuring that the university complies with all federal and state non-discrimination mandates.
5. Defendant Paul Lueken, who is also being sued in his official capacity, is the Director of Athletics at SRU. He is responsible for managing the Athletic Department's personnel, budget, fund-raising and revenue efforts, athletic events and campus athletic facilities. He also oversees compliance with all applicable rules and regulations of the National Collegiate Athletic Association ("NCAA") and with Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681-88 ("Title IX").
6. On or about January 30, 2006, SRU announced that, for budgetary reasons, it would eliminate eight varsity sports. Those sports consisted of men's and women's swimming, men's and women's water polo, women's field hockey, men's golf, men's wrestling and men's tennis.
7. Choike, Penning, Student and Walbright have participated in the past as members of SRU's women's varsity swim team. But for the announced elimination of their team, they planned to continue as varsity swimmers. There is enough interest and support from the student body to field a competitive women's varsity swim team.
8. Choike, Sandford and Walbright have participated in the past as members of SRU's women's varsity water polo team. But for the announced elimination of their team, they planned to continue as varsity water polo players. There is enough interest and support from the student body to field a competitive women's varsity water polo team.
9. Shortly after learning of SRU's announcement, the Student Plaintiffs met and formed a committee - S.O.S.- "Save Our Sports." The Committee circulated petitions and organized rallies to protest the elimination of the teams.
10. The Student Plaintiffs also succeeded in retaining counsel.
11. Counsel then met with SRU representatives in an attempt to discuss the status of the athletic programs at SRU.
12. Unsatisfied with the outcome of that meeting, Plaintiffs then commenced this action to challenge SRU's alleged failure to provide equitable athletic opportunities for its female students and equitable treatment of its female student athletes. Plaintiffs assert that SRU has intentionally discriminated against them based upon their sex.
13. The Complaint, styled as a class action, consists of two counts. Count I is asserted under Title IX of the Education Amendments of 1972, 20 U.S.C. sections 1681-88 ("Title IX"), for the violation of Title IX's equal participation requirement.
Count II, also brought under Title IX, is based upon SRU's failure to treat female athletes substantially equally with respect to coaching and training, equipment and supplies, publicity, promotional materials and events, transportation, uniforms, playing fields, locker rooms and other facilities.
14. The Plaintiffs also filed a Motion requesting preliminary injunctive relief. More specifically, Plaintiffs seek the immediate reinstatement of women's swimming and women's water polo programs*fn1 and the appointment of coaches, scheduling of competition and provision of all other benefits normally associated with varsity status at SRU.
15. This Court held a hearing on the Motion for Preliminary Injunction on June 14, 2006.
B. History of Title IX Compliance at SRU
16. SRU has not been compliant with Title IX and is fully aware of its failure in this regard. In December of 2000, SRU retained Alden & Associates ("Alden") to perform a Title IX compliance report. See Ex. 26.
17. Using the 1999-2000 Equity in Athletics Disclosure Act ("EADA") institutional data, Alden determined that the undergraduate student population at SRU for that academic year was 5,532. Of that population, 2,433 were male undergraduates (or 44%) and 3,099 were female undergraduates (or 56%). Alden also determined that the male student-athlete population was 365, or 59% of the student athlete population. In contrast, the female student athlete population was 254, or 41% of the student athlete population.
18. Thus, the differential between female undergraduate students and female undergraduate student athletes was 15%. Alden concluded that a 15% disparity would be viewed unfavorably and would not satisfy Title IX's substantial proportionality test.
18. Alden also concluded that SRU was not compliant with Title IX with respect to the provision of financial assistance, equipment, uniforms, facilities, coaching recruitment funds and publicity as it related to women.
20. Alden also advised SRU that it did not have a "history and continuing practice of program expansion." In this regard Alden noted that SRU had not added a women's varsity team since 1993. See Ex. 26, p. 30.
21. Alden also predicted that SRU would not be found compliant with respect to accommodating the interests and abilities of its female students. More particularly, Alden noted that there was no formal avenue for students to offer information regarding their interests and abilities.
22. Alden concluded its review by strongly recommending that SRU offer another women's varsity sport.
23. SRU did not follow that advice.
24. SRU has not cured the shortcomings identified by Alden in the years since the 2001 review. Indeed, Leuken testified that SRU has been unsuccessful in achieving substantial proportionality in the last five years.
25. On November 8, 2005, Kimberly Greco, Director of Internal Audit at SRU, prepared a summary of the EADA / NCAA Report. See Ex. 29. Greco included figures regarding the participation opportunities for years 2001 through 2005. According to her calculations, those seasons were marked with participation disparities of 12.3%, 11.2%, 8.7% and 8.7%.
26. Leuken conceded that there has been a differential of at least 5.8% in substantial proportionality each year from 2001 through 2005 and Smith acknowledged that he was aware of this gap from the time he was appointed president in 2004.
27. Greco concluded that "[t]he Athletic Department continues to not be in compliance with portions of the Title IX regulation." Id, p. 1. Significantly, Greco noted that the disparity in treatment of men versus women had actually increased with respect to the percentage of coaching and the recruitment of student athletes.
28. As to "Fully and Effectively Accommodating the Interests and Abilities of the Underrepresented Sex," Greco found SRU to be fully compliant. She stated that "[a] formal sports interest survey was conducted by the Athletic Department in 2004," and that the results of the study show that "the athletic needs and interests of female students are currently being met... ." Id., p. 2.
29. I find this conclusion to be unpersuasive, as it was completed before the elimination of the sports teams at issue.
C. Elimination of the Programs at Issue
30. In 2005, the Board of Governors of the State System made clear that there would, again, be serious revenue shortfalls. In prior years, SRU had made cuts in academic programs, administration and student services. Accordingly, Smith determined that the Athletic Department would have to sustain cuts.
31. At that time, SRU sponsored 23 varsity programs. Rather than implement cuts to all 23 teams, Smith deemed it preferable to simply eliminate a certain number of teams.
32. Smith and Leuken both knew, before this process began, that SRU was not compliant with Title IX. Accordingly, I find that their actions in eliminating several women's programs in violation of Title IX was intentional.
33. To cut these programs, Smith developed a spreadsheet with a set of criteria by which all 23 teams would be assessed and ranked. By approaching the elimination of certain teams in this manner, Smith hoped to make his decision as objective and factual as possible. See Ex. 18.
34. He rejected recommendations by the University Athletic Council to take into consideration gender equity and Title IX compliance. Smith testified that he wanted to keep financial decisions completely separate from Title IX decisions. The spreadsheet Smith used included both financial data, reflecting the costs and revenues associated with each team, and non-financial evaluative measures, such as how competitive each team was, the academic performance of the student- athletes,*fn2 the quality of the coaching staff and the condition of the facilities.
35. Once Smith had completed the spreadsheet, he and then-Vice President for Student Life Robert Watson ("Watson") ...