Iowa’s Title IX battle over women’s swimming: Hawkeyes faces real risk

IOWA CITY, Ia. — Four years after losing a court case that centered on his treatment of women in his department, Iowa athletic director Gary Barta finds himself in another high-stakes legal battle that could have national implications.

And sports gender equity experts interviewed by the Des Moines Register believe the plaintiffs have a good case, which could force Barta to reverse course on his plan to drop the women’s swimming and diving team and potentially add another sport for female athletes.

Four members of the Hawkeye women’s swimming and diving team are suing the university over Barta’s decision to cut the sport after this season, a move they contend violates the federal law known as Title IX, which requires schools to provide equal opportunities for male and female athletes. Their argument is that Iowa, along with most major university athletic departments, is well out of balance when it comes to roster spots devoted to women. They are not only trying to preserve their sport, but are asking U.S. District Court Judge Stephanie Rose to require Iowa to add another sport for female athletes, a sign of how strongly they believe in their case.

Here’s another sign: The plaintiffs have posted a $360,000 bond required by Rose. That money will be lost if Iowa prevails here.

EARLIER:Iowa settles athletic discrimination cases for $6.5M

“Given the history at Iowa, where there has been such a pattern of discrimination against women staffers and ongoing complaints about gender inequities there, I think it probably was not the wisest move to have cut a women’s sport,” said Ellen Staurowsky, a professor of sport management at Ithaca College who has written about the case for “Sports Litigation Alert.”

But the university is not backing down. It filed a request for the case to be dismissed outright, even after Rose issued an injunction forcing Iowa to maintain its women’s swimming program until the matter is resolved. On Jan. 22, the university asked the Eighth Circuit Court of Appeals to overturn Rose’s injunction, an indication that this will be a lengthy and contentious legal proceeding.

Barta argued that he needed to cut four sports (three are men’s teams: gymnastics, swimming and diving and tennis) to save $5 million a year to offset an anticipated $60 million gap in this year’s budget because of the COVID-19 pandemic. The budget for women’s swimming and diving is $1.5 million annually. But getting rid of a women’s sport brings scrutiny of a university’s standing in relation to Title IX and is often accompanied by legal action.

Michigan State athletic director Bill Beekman made a similar discovery after his October announcement that he was cutting his men’s and women’s swimming programs after this season. On Jan. 15, 11 members of the women’s swim team filed a Title IX lawsuit that parallels the Iowa case.

Barta and Beekman were the only two of 14 Big Ten Conference athletic directors to attempt to terminate a women’s sport during the pandemic.

For Barta, 57, the loss of a second court case related to gender-equity could come at a vulnerable time professionally. The university is seeking a replacement for retiring president Bruce Harreld, who has publicly supported Barta, even after a $6.5 million gender-discrimination settlement was paid to two of his former female employees in 2017.

The Iowa lawsuit is being watched carefully by national experts in Title IX law, and the general assessment of those interviewed by the Register is that the university is fighting a losing battle once again, one it never needed to risk.

With court proceedings being delayed during the pandemic, even the lawyers involved have no idea when Rose will decide whether to let this case proceed to trial.

But if she does, Iowa will bear the burden of proof.

Swimmers’ attorney wants Iowa to prove ‘genuine’ roster spots for women

Jim Larew is the attorney representing Hawkeye swimmers Kelsey Drake, Christina Kaufman, Sage Ohlensehlen and Alexa Puccini. His strategy is simple: Make the university show its math.

Title IX requires schools that receive federal funding to provide athletic opportunities for women at the same rate as their representation in the undergraduate student body. The percentage of women enrolled at Iowa has been slowly increasing, and is at 55% this school year. The university gets 2 percentage points of leeway in this calculation, meaning that at least 424 of the roughly 800 student-athletes projected for the 2020-21 season would need to be women (53%).

This should be a simple thing to prove, but Larew said the university has declined to turn over its list of athletes. Rose, in her Dec. 24 ruling in favor of an injunction, was also frustrated by Iowa’s reluctance to produce the rosters for its 24 sports for the 2019-20 season.

“At the conclusion of the first day of hearing this matter, the Court inquired whether (Iowa’s official Title IX athlete counts) would be turned over for Court review,” Rose wrote. “Defendants have not been responsive to either request.”

Larew is convinced the university is padding the number of women getting “genuine” roster spots, particularly among the rowing and track and field teams. Securing an injunction in the case appeared to move Larew one step closer to a full trial, and that is when he would get a closer look at Iowa’s roster management through the discovery process. The university’s appeal, however, may pause proceedings. 

Larew intends to examine which athletes regularly attended practices and traveled for competitions, signs that they were legitimate members of a team. He questions whether all of the 94 participants on the rowing team and each of the 130 in women’s track and field are truly getting equal athletic opportunities, in terms of access to coaching and any hope of actually participating in a varsity event.

Barbara Osborne, a professor of sport management at North Carolina who also holds a law degree, believes she knows exactly what Larew will find if the case goes to trial.

“Proportionality is just simple math. It’s not surprising at all that the court issued an injunction because you just have to do math and it shows they’re not in compliance,” said Osborne, who has been following the case at Iowa.

Osborne pointed to a 2013 court decision that prevented Quinnipiac University in Connecticut from dropping its women’s volleyball team and replacing it with competitive cheerleading. The judge found that the university was listing women on the rosters of the cross country and indoor and outdoor track teams even though many of them truly competed in only one of those disciplines.

“If you are padding your women’s roster so that the total number that you’ve padded would easily allow you to add a women’s team, the court expects you to add a women’s team,” Osborne said.

Quinnipiac restored volleyball, and added women’s golf and rugby teams.

Larew is also asking the judge to compel Iowa to add a women’s sport, in addition to keeping swimming. Wrestling and rugby are the two “emerging” sports identified in the lawsuit, although Rose wouldn’t have the leeway to specify which sport gets added, if that is her determination. Iowa’s athletic department would make that call.

Iowa wrestling coach Tom Brands has been vocal about his desire to field a women’s team alongside his top-ranked men’s squad. The sport has a deep history in this state, and last weekend’s state high school girls’ wrestling tournament included 457 participants. Girls-only wrestling remains, however, an unsanctioned sport in Iowa.

Staurowsky believes that, by asking the court to add a women’s sport as well as retain swimming, Larew is showing the strength of his position.

Iowa’s response: Office for Civil Rights signed off on Title IX compliance

When Barta announced Aug. 21 that he was cutting four sports after this season, he said Title IX compliance was one of the factors he used to guide that decision.

The university contends that it has met all requirements of Title IX after a two-year investigation by the U.S. Department of Education’s Office for Civil Rights arising out of a 2015 complaint lodged by field hockey players. As proof, Iowa pointed to an October 2019 “closure letter” from the office that said as much. The office found “disparities” in the way male and female athletes were treated, but no violations of its regulations. Iowa was given time to address those.

That letter noted that Iowa provided information to the Office for Civil Rights showing that, in 2016-17, 52.6% of undergraduate students were women, as were 52.2% of its participants in athletics. But how the university arrived at those numbers wasn’t included in any public record.

The university, which is being represented by the Iowa Attorney General’s Office, declined to make any of its athletic department officials available for an interview with the Register while the court case is pending.

In a statement, though, the university said of the judge’s injunction: “While the University disagrees with some of the court’s findings, the University will follow the court’s order and will maintain the program and provide staffing and benefits until the matter is resolved. Our commitment to gender equity and our student athletes remains strong. We are proud of our women swimmers.”

The university’s defense is laid out in affidavits from Barbara Burke, Iowa’s associate athletic director and senior women’s administrator, and Lyla Clerry, its associate athletic director for compliance,.

Burke took exception to claims that the university is inflating the number of female athletes, writing in her affidavit: 

“Rosters are completed and verified by the athletics compliance office at the end of each competitive season. … Our coaches have integrity, and I and other UI athletics administrators are dedicated to ensuring student-athlete health, safety and welfare. Such malfeasance could not occur as alleged.”

BURKE:In male-dominated field, deputy AD has stood out. But when will her shot come?

Clerry said her office carefully tracks the weekly participation of each athlete while in season and confirms that information with each student. She said the university keeps its official squad lists private “because they contain protected student education records.”

That means the university is citing one federal law (the Family Educational Rights and Privacy Act) as a reason it cannot demonstrate compliance with another (Title IX). Larew wondered why the school couldn’t simply redact any private educational records, which are not at issue, and provide the information the court is seeking.

The rosters that Iowa lists on its athletics website show 64 women on its track and field team, including 23 that are also listed under the cross country team. The university is projecting that there will be 131 total competitors on those teams next season, as opposed to 109 on its men’s squads.

Similarly, there are only 57 women shown on the online rowing roster, with a team size projected at 92 for 2021-22, although that sport is not yet in season and is currently recruiting new members.

Iowa’s attorneys got a victory when Rose required the plaintiffs to produce the $360,000 bond, which will be set aside to defray costs the university may incur as it keeps the women’s swimming team afloat, should the university ultimately prevail in the lawsuit. The school estimated that it would actually cost $1.1 million to compete in women’s swimming in 2021-22, if the matter isn’t resolved by then.

Osborne said such bond stipulations are somewhat common in class action lawsuits like this one.

“It’s basically ‘put your money where your mouth is’ because they don’t want the people who brought the class action to just drop out when they’re out of eligibility” to compete in college sports, she said. “If you’re going to litigate this, then we want to know you’re in for the long haul.”

Larew declined to say who put up the money on behalf of his clients, but he appealed that part of Rose’s ruling to the Eighth Circuit Court shortly after Iowa filed its appeal of the injunction. That’s one more matter that will need to be settled.

Why women’s rowing teams are often scrutinized in Title IX cases

Title IX became law in 1972, at a time when college football had a large following but wasn’t the massive income driver it has become. There were only 11 bowl games played that year, a number that has more than tripled since. There were no billion-dollar cable TV contracts or multi-million-dollar coaching staffs operating in ornate training facilities.

Christine Grant, who was women’s athletic director at Iowa from 1973-2000, testified before Congress to help get Title IX passed in 1972. She is a pioneer in gender-equity efforts. The fact that the university is now being sued for allegedly violating that law was mentioned with dismay by both Staurowsky and Osborne. Larew, too, plans to seize on that juxtaposition to challenge Iowa to regain its status as a leader of providing opportunities for women athletes.

To balance football roster sizes that swell to more than 100 (Iowa is projecting next year’s team to include 129 players), schools began adding women’s sports. Iowa made an early commitment to field hockey, the sport Grant once coached. In 2003, it began the women’s rowing team, the most recent sport added.

Rowing is frequently a sport that is viewed skeptically by Title IX experts, since schools often report roster sizes that can also reach into the hundreds. Washington, for example, was forced to explain in 2017 how it could list 145 women on its rowing team after a Seattle Times investigation found at least eight who claimed they had no idea they were considered to be members of the team. 

Iowa rowing coach Andrew Carter, in an affidavit filed Dec. 18, was adamant that all of his rowers get the same level of training, equipment and opportunities to compete. His team consists of experienced rowers but also dozens of Iowa students who excelled in other sports in high school but were recruited to try rowing once they got to campus, a process he calls “talent-transfer.” They compete in “novice” events but he said they also can be elevated to varsity competition as their skill improves.

On Tuesday, the Twitter account for the Iowa rowing team sent out a notice for upcoming tryouts, seeking women who are 5-foot-8 or taller, missing competitive sports, looking to try something new and wanting to compete for a Big Ten championship.

Carter said that’s a standard way to find new members of his team. He bristled at Larew’s depiction of a “junior varsity-level” element to his program.

“They are integral to all we do, and therefore, the resources brought to bear toward their success, both on and off the water, reflect that,” Carter wrote in his affidavit.

Burke, in explaining the need for a roster of 90-plus rowers, pointed out that to field a team at the Big Ten championships, 51 athletes are needed in seven different events.

Still, Larew plans to let Rose decide whether rowing’s “novice” competitions are in line with the spirit of Title IX, since there is no such designation in any male sport offered at Iowa.

Staurowsky said that any school accused of manipulating its rosters faces the burden of proving to a judge that the athletes listed were “genuine” participants in the sport. She said, after 50 years in existence, federal judges are not giving universities any benefit of the doubt when it comes to Title IX compliance.

“Those old arguments (that the schools need more time) are not holding up as well because schools have had much more opportunity to get into compliance and are basically showing that they have not had the will to do it,” Staurowsky said.

“I think that schools are being called out on this.”

Staurowsky pointed to recent episodes at Brown University in Rhode Island and William & Mary in Virginia, both of which backed off plans to cut women’s sports teams after litigation was threatened. It’s rare that such cases are brought to trial.

On Friday, Dartmouth College reversed course on its intention to eliminate five sports — men’s and women’s swimming and diving, men’s and women’s golf, and men’s lightweight rowing. That ended a six-month period of limbo for those athletes and came after a Title IX lawsuit was threatened. Phil Hanlon, president of the Ivy League school, also announced that he was authorizing a gender-equity review of his athletics department.

The risk for letting a case reach the trial stage is high because of what information universities may be forced to reveal, and because the ultimate penalty for remaining in violation of Title IX is the loss of federal funding. For Iowa, that would be in excess of $500 million.

Instead, schools either settle the matter or, if found to be out of compliance with Title IX, quickly enter into a “consent agreement” with the Office for Civil Rights to remedy the situation.

Osborne is surprised that Iowa hasn’t already agreed to restore the women’s swimming and diving team and avoid a potentially embarrassing lawsuit. At trial, Larew will undoubtedly point out every way that women athletes are treated differently at Iowa than the men, including the amount of money spent on coaching salaries, the publicity they receive, the quality of the facilities, travel expenses and more.

Iowa paid football coach Kirk Ferentz $5.6 million in fiscal year 2020. Basketball coach Lisa Bluder, the highest-salaried leader of a Hawkeye women’s team, made $1.1 million.

“If it goes to trial, past precedent is definitely on the side of the female athletes,” Osborne said. “The law is so clear of what is required. Iowa’s track record is really, really bad for losing their cases, so I don’t understand why they’re spending hundreds of thousands of dollars on litigation when they could easily put that money into women’s programs and they would be fine.

“It doesn’t make sense, except when you have stubborn leaders that think they can do whatever they want to do and not have consequences for it. They certainly aren’t making the kinds of decisions that you would see most athletic administrations and college presidents make across the country.”

Should Barta have seen lawsuit coming?

Nancy Hogshead-Makar was born in Iowa City, grew up in Florida and won three gold medals in swimming at the 1984 Olympics. She is now a lawyer and CEO of Champion Women, which advocates for gender equality in sports.

Hogshead-Makar compiled data that showed most Big Ten schools were out of compliance with Title IX, mailing it in June to each institution and the league office. Barta was among those who received the information, which has been well-circulated among those with an interest in the topic.

In light of that, Staurowsky was perplexed to see Iowa and Michigan State announce plans to cut a women’s sports team. Minnesota, for example, opted to eliminate three men’s sports as a cost-saving measure related to the pandemic.

“I find it interesting that a watchdog group had notified these schools that they were already in a concerning position related to Title IX, and the schools went forward anyway,” Staurowsky said.

Barta, who said the decision to cut sports pained him, now must prove that he made it within the parameters of federal law with regard to gender equity. This will be complicated by his 2017 settlement with his former top assistant, Jane Meyer, and ex-field hockey coach Tracey Griesbaum. Barta dismissed them both, claiming poor job performance, but offered no documentation of that as their cases proceeded. The women, who are partners, said they lost their jobs because of their gender and sexual orientation.

A Polk County jury hearing Meyer’s case agreed, finding the university at fault on all five counts and awarding her $1.4 million. Iowa then settled that case and avoided a trial with Griesbaum, paying $6.5 million to the former employees and their lawyers while admitting no guilt.

Osborne said such a verdict can be seen by a judge as evidence that Barta is overseeing a “toxic” culture in his department, for women who work for him and the athletes under his care.

Larew said he will raise that issue, and also point to comments Barta made to reporters shortly after the trial, in which he claimed he was “very confident” in the decisions that he made regarding Meyer and Griesbaum. 

Was that an indication that Barta doesn’t understand or doesn’t care about what he did wrong? Larew believes it a question that Rose needs to consider.

BARTA:‘Very confident with the decisions I made’

Staurowsky was even more pointed, noting that the Meyer-Griesbaum case is recent history, one that seems to be repeating.

“If you add up the amount of legal expenses that have been associated with the athletic department’s failure to comply with gender-equity laws, they’ve well outspent any of the savings that they would have made from cutting the women’s swim team,” Staurowsky said.

“I just wonder how an athletic director gets to keep their job with this kind of persistent problem?”

While legal action plays out, Hawkeye women’s swimming team is adrift

While the court case lingers, the Iowa women’s swimming and diving team is withering.

That is the fear of both Jim Larew, the attorney representing Hawkeye swimmers, and those who are monitoring this case: The Hawkeye athletes could prevail only to find that the team is no longer capable of being competitive.

Already, a third of the swim team’s 38-woman roster has decided to transfer to a new school for next season. Others have scholarship offers in hand, but are waiting to see what happens with the lawsuit, swimming coach Marc Long said. He, too, is in limbo and unable to recruit new athletes while the uncertainty continues. He is operating without four members of his coaching staff.

“A public announcement that a program has been cut, by itself, is going to have negative repercussions for that program, even if it’s restored,” said Ellen Staurowsky, a professor of sports management at Ithaca College who has experience coaching field hockey and lacrosse. “And the clock started in August on this. I think it’s absolutely a valid argument that, from a recruiting standpoint, they’re hurt in terms of at least two classes, and I think it could be argued that the damage is even far greater than that.

“It becomes a bit of a cycle potentially within the athletic department that, if you do save that sport that is cut, are they going to be negatively impacted if resources are allocated on the basis of success? Could you end up with a circumstance where it’s almost a slow death, because you did save the program but the department grudgingly allows you to stay under the leadership that is in place?”

Iowa began its women’s swimming and diving season Jan. 16 with a home victory over Nebraska. It was the lone meet scheduled at the Campus Wellness and Recreation Center that has been the Hawkeyes’ home for 10 years, meaning it also could have been the last ever, and the athletes celebrated heartily when it was over.

Mark Emmert covers the Iowa Hawkeyes for the Register. Reach him at memmert@registermedia.com or 319-339-7367. Follow him on Twitter at @MarkEmmert.