Story by Chris Graham

Natalie Moore wasn’t sure what was happening - just that she and the rest of the women’s gymnastics team at James Madison University had been summoned to the Convocation Center for a hastily arranged mandatory meeting.

“My first thought was that somebody had died or something. I didn’t know what was going on,” says Moore, a senior from Stow, Mass.

Swimmer Mitch Dalton was similarly in the dark as to what all the hubbub was all about.

“We got an e-mail from Coach saying that everybody had a mandatory meeting in the Convocation Center - that he didn’t know what it was about, and that he had had a meeting a little bit earlier than us. We basically had about a half-hour notice to get up there,” says Dalton, a senior from Brisbane, Australia.

“We sort of had an idea what was going down once we saw the other teams there,” Dalton says.

“There was a podium down on the basketball court,” Dalton says, “and a bunch of administration people came out and made the announcement.”

***

The announcement, made this past September, had to do with the school administration’s decision to eliminate 10 varsity sports - men’s and women’s archery and gymnastics, men’s cross country and indoor and outdoor track, men’s swimming, men’s wrestling and women’s fencing - from the roster of 28 varsity sports that JMU currently offers.

The motivation for the cuts, which will take effect in the coming school year, comes down to simple mathematics - at the beginning of the 2006-2007 academic year, females comprised 61 percent of the student body at James Madison University, but only 51 percent of those participating in sports are females, putting the James Madison athletics department seriously out of compliance with Title IX regulations that require opportunities for men and women to be equal across the board.

The school decided that it had two basic options for doing something to get those numbers in balance - add more women’s sports, or do something to cut the numbers on the men’s side of the ledger.

“It was driven because of the issue of compliance with the law,” says JMU athletics director Jeff Bourne.

“Where we found ourselves is that we were looking at having to add women’s programs, and we’re already one of the largest programs in the country. And we were subject to adding women’s sports - and we would have had to have added somewhere between 220 and 250 female participants in order to comply with the law. We were just simply not in that position,” Bourne says.

The United States Department of Education’s Office of Civil Rights in 1979 came up with a three-prong test for schools to use to determine where they stand with their adherence to Title IX. The first is often referred to through the shorthand “proportionality” - a comparison of the ratio of female to male students in the student body and the ratio of female to male student-athletes.

The second and third are more esoteric - schools under prong two can demonstrate a history and continued practice of program expansion for women, or under prong three show that they are fully and effectively accommodating the interests and abilities of women.

With the ratios under prong one so far out of whack, JMU relied on prongs two and three for guidance - and given that the school had added only one women’s sport since 1990, and that athletic-department officials were aware of the interest of a handful of women’s club teams on campus in achieving varsity status, it was back to square one, or in this case, to the proportionality standard.

What makes this case somewhat intriguing is that the school did not begin its evaluation of its compliance with Title IX due to a lawsuit or even a threat of a lawsuit.

“There was no formal complaint filed with the Office of Civil Rights. There was, however, by one or two successful club programs, interest expressed in becoming a varsity sport,” Bourne says.

“We could have made the election to have waited and been sued - or have been asked to add a sport by the OCR. At this point in time, we decided it was in the best interests of the university to do what was necessary in order to bring us into compliance,” Bourne says.

This scenario is playing itself out at colleges and universities across the country, says Allison Kasic, the director of campus programs at the Washington, D.C.,-based Independent Women’s Forum.

“James Madison could have tried to solve this problem via prong two or prong three - but they would have still been vulnerable to the same lawsuits that they were vulnerable to before. Because there’s nothing quantitative about those other prongs,” Kasic says.

“What does it mean to have an ongoing commitment to women’s sports? Does that mean that you have to add a sport every year? Every five years? There’s no way to really measure that,” Kasic says.

“You could be wholeheartedly trying to pursue those other ways - and people could still sue you, you could still be accused of being out of compliance, because there is no definitive way to prove that you are in compliance with those other two. There are no numbers attached to it - it’s a little more vague.

“That’s why people default to the first prong. It gives them a safe harbor. You can say, Look, 61 percent of my students are female, 61 percent of my athletes are female, I’m in compliance, you can’t sue me. It’s something very specific and measurable,” Kasic says.

“What’s driving this is that there are interest groups out there who are watchdogs for Title IX. Schools feel a lot of pressure - and a lot of it is behind the scenes,” Kasic says.

“The more we find about this James Madison case, there does seem to be even in the absence of an actual lawsuit situations where people might have threatened lawsuits. As more details unfold here, it’s pretty clear that they were under a lot of specific threats - and even if a lawsuit was not filed yet, they had reason to believe that a particular party was going to file a specific lawsuit, and they knew that was coming, so they took steps to avoid that,” Kasic says.

***

One question that deserves an answer here is this - if Title IX was really the issue, then why at the end of the day were three women’s teams also among those that were cut?

According to James Madison officials, the reason for dropping archery, fencing and gymnastics was that none of those teams are conference sports - James Madison competes in the Colonial Athletic Association in most of its sports.

JMU is one of only two Division I schools in the country with a varsity women’s archery team - and the fencing team has had difficulty in recent years maintaining a roster with enough participants to qualify for NCAA competition.

The elimination of those sports actually spurred deeper cuts on the men’s side of the ledger, athletics director Jeff Bourne says.

Those moves signal something else to Ellen Staurowsky, a sports-management professor at Ithaca College. To Staurowsky, the issue at JMU is Title IX in name only - “when you look at the decisions that they’ve made relative to their athletic program over the span of five to 10 years, clearly Title IX is not the only thing that they’ve been thinking about,” Staurowsky says.

“The fact that they invested $10 million in the Plecker Athletics Center - with $2.8 million of that coming from JMU reserves and other nontaxed sources - that was a value statement on the part of the institution on the part of the athletic program in large part that was done in support of their football program,” Staurowsky says.

“I think it is disingenuous to kind of tease out consideration of Title IX and isolate it as being the factor in what I would call a ‘corporate restructuring’ of athletic programs,” Staurowsky says.

In February, the school announced that the $550,000 that is currently earmarked for the sports that are being cut will be used to fully fund budgets for the 12 women’s sports that will remain and to increase the budgets for men’s golf and men’s tennis - perhaps giving weight to Staurowsky’s description of the moves as a “corporate restructuring.”
But also of note here is that while the proportionality test looking at student-body makeup and athletics participation has gotten the lion’s share of the attention as far as the numbers go, other numbers regarding athletics at JMU are also seriously out of whack.

In 2004-2005, the last academic year for which detailed budget data is currently available, only 43 percent of the overall operating budget for sports at JMU went to women’s teams; 44 percent of the department’s recruiting budget went to women’s teams; 46 percent of athlete student aid went to female student-athletes; 42 percent of head-coaching salaries went to coaches of women’s teams; 35 percent of assistant-coaching salaries went to coaches affiliated with women’s teams; and 35 percent of equipment budgets went to women’s teams.

The elephant in the living room here is football - which eats up nearly a third of the athletics scholarships offered by James Madison and a similarly significant chunk of the money available to go to coaches and assistant coaches and equipment and travel and the rest.

As the argument often goes, football - and to a lesser degree men’s basketball - should get more money for scholarships and overall operating expenses and the rest because those are the revenue sports that bring in dollars to fund other teams across the spectrum.

“That’s one myth that needs to be dispensed with very quickly - that football pays for everything else. Eighty-four percent of what we would call big-time programs lose money,” says Jennifer Crispen, a professor at Sweet Briar College.

“While they may produce amazing amounts of revenue, they also cost amazing amounts. It’s a very small minority of those programs that actually show a profit - and are able to put any of that money into other sports,” Crispen says.

Nonetheless, administration officials at Division I schools have allowed themselves to get caught up in what Donna Lopiano, the CEO of the East Meadow, N.Y.,-based Women’s Sports Foundation, calls “the football arms race.”

“We know based on past research studies that the cuts in sports is only occurring at Division I - not Division II or Division III. Those schools are adding sports - and they’re adding them for men and women. That is almost the proof in the pudding that this isn’t a Title IX issue - because the D1 schools are the richer schools,” Lopiano says.

“And guess what - the arms race is filtering down into I-AA. It’s getting to be incredibly bigger among the BCS schools - those that are in legitimate competition for a BCS crown. What we’re seeing right now is almost totally a Division I phenomenon,” Lopiano says.

Which brings us back to the $550,000 that JMU is saving through the elimination of the 10 sports now on the chopping block. “If you go back and look at the numbers, they were reporting a deficit in football of $800,000. So clearly the issue is not that they’re opposed to running a deficit. They’re opposed to running a deficit in certain programs,” Staurowsky says.
“In that context, then, the cuts were a value statement. None of this is required by Title IX. I know it’s a difficult situation for athletics programs to be in - but this is not all about Title IX. Nor is it about the law requiring people to manage their finances and their athletic programs this way. This was a difficult choice for James Madison - but a piece of federal legislation did not make that happen,” Staurowsky says.

Bourne acknowledges that football does create issues for JMU in terms of its efforts to try to adhere to Title IX regulations. But he still sticks to the position that the program cuts were Title IX-related.

“Had the law been interpreted a different way, and had we not been placed in the position that we were, I seriously would tell you that we would not have made these changes,” Bourne says.

“It’s too much pain. It’s too much effort on behalf of our board, our university administration, our president, to go through and do those types of things for the small amount of money, relatively speaking, that was involved. You don’t bring that kind of hardship to your program for that dollar amount,” Bourne says.

***

One might also think that you wouldn’t bring the kind of hardship that the elimination of 10 sports and positions for 144 college student-athletes would be expected to bring without at least letting the student-athletes know ahead of time that things might be moving in that direction.

The administration began considering its options on that point in early 2005 - a full 18 months before the cuts were announced. In the meantime, coaches continued to recruit prospective student-athletes to the Harrisonburg campus - and the athletes and their families made decisions to put down roots in the JMU community.

“I think the whole decision should have been made more publicly,” senior gymnast Natalie Moore says.

“They said that they had been considering it for 18 months - but no one had any idea that this was going on. The coaches had no idea, the athletes had no idea. The prospective student-athletes - the freshmen who could have gone to other schools - had no idea. It was very secretive - and I don’t think it was fair to the athletes or coaches,” Moore says.

“Many of our athletes here turned down opportunities to compete for different programs because they wanted to come to JMU, and they loved the school,” Moore says. “Some of them are thinking about transferring - but they’re really stuck. They love gymnastics, but they also love JMU - so it’s a really hard decision.

“I don’t think it’s fair for them to have to be thinking about that a month after they got to school. They should have been warned - someone should have said something,” Moore says.

Stirling Van Winkle, a sophomore men’s gymnast who last year as a freshman was named to the All-America team after finishing third in the pommel horse at the USA Gymnastics Collegiate Championships, is bothered the most by what he says his mother was told - or maybe what she was not told - by athletics director Jeff Bourne at Van Winkle’s freshman orientation.

“My mom was always really concerned - she’s a very involved person. She went in and met with him to talk with him to make sure that I had access to tutors and stuff like that. And he never mentioned anything - the possibility that anything was going to happen. Her whole point of talking to him was to make sure that I would be set for the next four years - and he never mentioned anything to her,” says Van Winkle, a native of Tallahassee, Fla.

“I definitely wouldn’t have come here had I known that this was going to happen - that I was only going to be able to compete here for two years,” Van Winkle says.

Bourne says the reason the administration decided against consulting with student-athletes on the cuts comes down to one of “legality.”

“We did work with a Title IX consultant. We worked with our state attorney general’s office - and the attorneys there who are very proficient and familiar with Title IX law. At that point, it ended up being in our minds a decision of which programs we were deciding to reduce - and any time that you involve a broad sector in that, it’s difficult, because they are decisions that are going to be reached that at some point along the way don’t satisfy anyone,” Bourne says.

The cuts cast a pall on the 2006-2007 season for those participating the sports that are going to be affected.

“It’s just one more thing that we have on our plate,” Van Winkle says of the cuts. “We spend 17 hours a week in the gym - and then we try to tackle our classes. And now we’re trying to fight an administration that doesn’t care about us. It’s hard to separate those - but you’ve got to try to do it.

“I think it has had an impact on our season. It’s hard to go out there and wear JMU colors for an administration that doesn’t seem to care at all. That’s the hardest thing - that I’m going out there and competing for a school that doesn’t care,” Van Winkle says.

“We don’t have scholarships - but we compete against teams that do have scholarships, like William and Mary and N.C. State and UNC and Yale and the Ivy Leagues. It is difficult to compete against the schools with scholarships - but we’re doing well this year,” Moore says.

“We have a lot of freshmen with a lot of talent - we’re definitely increasing the talent in our program. It’s disheartening to think about with what has happened,” Moore says.

“The first month, month and a half, those were some of the best practices that we’ve ever had. Coach was just constantly reminding us to think about what the school had done to our team,” says Mitch Dalton, a senior swimmer.

“Our goal from the beginning of the year, even before we found out about the decision, was to win a CAA championship,” Dalton says. “We’re the winningest team in CAA history - and the 2001 decision (to eliminate scholarships for men’s swimming) took a whole year out of our recruiting. Each year since, we’ve been building back up. My freshman year was the last year that we had a full team - and then my sophomore year, we kind of took a dive, because we didn’t have any seniors at all, so we fell to sixth. And then last year we were back up to fourth. And then this year we’re looking at winning again.

“We really just wanted to win the championship again. So once the news came out, it was like, Oh, we have to win. That set it in stone,” Dalton says.

***

Jennifer Chapman’s sport - women’s cross country - survived the cuts to see another day.

But the senior from Centreville has been on the front lines of the fight to save the 10 sports that were marked for elimination as the president of the JMU Student Athlete Advisory Council.

“It was something new for us. Our council usually just does stuff like, if we’re having problems with athletes in classes, stuff like that, we’re there to fix that, or to set up athlete socials. We had to step up our committee and what we do,” Chapman says.

The council - comprised of athletes representing all 28 current JMU sports - had to debate what its role in the fight would be, if any, “because some of the coaches were telling their athletes to stay out of it and not talk about it, because some teams are actually going to get scholarship money out of this, so their coaches felt that they should stay out of it,” Chapman says.

“Obviously the athletes who were affected felt that it should be the complete JMU sports program taking a stand. So it was a heated subject at a couple of the meetings - and then we came to a vote, and it was unanimous that the whole committee would stand behind whatever actions I took,” Chapman says.

After focusing initially on efforts to try to persuade the administration to reconsider the decision, with no luck, “this is going to go legal now,” Chapman says.

“There are going to be different athletes who are going to file complaints with the Office of Civil Rights - and a lawsuit is going to be filed against James Madison and the Department of Education,” Chapman says.

“I think people might not understand or grasp what has really taken place. It’s so easy for JMU to throw out that they had to do this because of the law - and they’re not complying with the law. That’s so easy for people to understand. It’s harder to get people to understand that they didn’t have to do this at all. The Office of Civil Rights has actually told us that this was not JMU’s only option - just that they chose to go this route,” Chapman says.

That’s all well and good to say - but to hear Jessica Gavora, the author of Tilting the Playing Field: Schools, Sports, Sex, and Title IX, and the communications director of the Washington, D.C.,-based College Sports Council, tell it, the legal challenge doesn’t stand much of a chance of blocking the cuts from taking place.

“JMU was at a very, very, very real threat of a lawsuit before they took this action. Now they’re not. It’s that simple,” Gavora says. “Those kids are going to file their lawsuit, and unfortunately for them, they’re going to lose - because under the law, JMU is now protected. Its student body and its athletic programs match up in their gender balance - so it’s protected from lawsuits now.

“All schools know this - when they’re out of proportionality, they’re vulnerable, especially when they have a women’s club team that wants to go varsity. Then they have a real problem - because the law says, You have to meet this interest. You’re discriminating against these women.

“Even though you have more teams for women than you do for men. Even though you’re discriminating against a lot more men than you’re discriminating against women,” Gavora says.

Chapman has noted that irony to herself - “that Title IX has in the past given us great opportunities, and it’s helped us do so much, but at the same time, we feel like we’re one with our guys team, and now it’s like half our team is gone.”

“So as a female athlete, we don’t feel like we’re benefiting from this at all - we’re getting hurt from it, too,” Chapman says.

Allison Kasic of the Independent Women’s Forum points to that same irony with regard to the aim of the authors of Title IX back in the 1970s and its practical impact today.

“It’s ironic - Title IX was created after the push for more resources for women and to end sex discrimination. But it’s certainly not benefiting women in 2007,” Kasic says.

“The language from 1972 seems perfectly harmless - it seems like the best law that was ever written. It says simply that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjugated to discrimination under any educational program or activity receiving federal financial assistance. There’s absolutely nothing wrong with that - it’s how it’s been twisted in the courts and via these clarifying statements over the years,” Kasic says.

“What you really need to reform is the enforcement mechanisms - and you need to provide a way that a school can show that it’s in compliance with Title IX, give them quantitative ways to show that they’re in compliance, give them a process where they can demonstrate their compliance, and not have to take these drastic measures that they’re often forced to take where they’re forced to cut sports programs or roster spots.
“No one wants to talk about the dark side of Title IX - but it’s out there. And if we’re not talking about it, we’re never going to improve the situation,” Kasic says.

Neena Chaudhry, a senior counsel at the Washington, D.C.,-based National Women’s Law Center, is of a decidedly different mindset when it comes to Title IX and how it is currently enforced.

“We think the regulations reflect the intent of the law - and the courts have unanimously held that Title IX is not discriminatory, that schools have flexibility in terms of having different ways to comply. And they’ve essentially said that if schools choose to cut teams, that’s their decision - but that it’s not the law that is requiring this be done under regulations or policies that the Department of Education has put out,” Chaudhry says.

“It is a flexible law - the law basically says that you cannot discriminate in the opportunities that you provide to men and women. It doesn’t dictate what teams you have to have - whether it’s certain sports or not. It doesn’t say that you have to have the exact same teams for men and women. It’s a very flexible law which in many ways, I think, works to schools’ benefits, because they have to have the flexibility to decide, Hey, this sport is really popular today, maybe it isn’t as popular tomorrow, so maybe we need to add different sports for men or for women,” Chaudhry says.

“They need to be able to make those choices - and unfortunately, in my opinion, schools are choosing to cut teams instead of dealing with perhaps one of the real problems, which is the out-of-control budgets that athletics departments are shouldering these days,” Chaudhry says.
“We always feel so bad for the men and women when sports are cut. You never want to see that happen. But I think we have to focus in on what the school is doing and the fact that they’re making choices - and blaming the law doesn’t help it. It doesn’t bring back the teams. And it kind of creates this kind of men-against-women dynamic - which is really not helpful in the long run,” Chaudhry says.

The trouble in the long run could come from cases like the one at JMU and those at other schools across the country that create the sort of backlash that was very much apparent at the Virginia General Assembly earlier this year - where legislators excoriated James Madison University for its moves relative to the sports-team cuts, and some threatened to offer some cuts of their own to the school’s support in the biennial state budget.

It wouldn’t take much for similar sentiments to make their way to Capitol Hill and put Title IX in the federal-legislative crosshairs.

“The law itself doesn’t say anything about quotas in sports. The law itself does not need to be changed. But the bureaucratic interpretations do need to be changed,” Jessica Gavora says.

“Our feeling is that the Department of Education can do this - it can change its interpretation of this law today if it wants to. But the Department of Education is not going to do this. So we’re pursuing a legislative strategy through Congress - to get Congress to come in and say, Title IX is a great law that is being wrongly interpreted, and we’re going to fix those regulations,” Gavora says.

Donna Lopiano of the Women’s Sports Foundation isn’t worried that Congress will do anything to gut Title IX.

“People are wary - in fact, they expect - that there will be periodic efforts to get out from under the law. But in every case, Congress has reiterated its support - and in fact, the law’s gotten stronger,” Lopiano says.

“Vigilance is necessary for all civil-rights laws - and Title IX is no exception. But Title IX is not going to roll back - because both Republicans and Democrats have daughters who play sports,” Lopiano says.

***

Of course, they have sons who plays sports, too - sons like Mitch Dalton, sons like Stirling Van Winkle, an All-American in his sport who has no idea what he will be doing next year, or even where he will be.

“If this situation doesn’t change, I’ll most certainly transfer,” says Van Winkle, who is considering the College of William & Mary and the University of Illinois-Chicago as avenues where he can continue his gymnastics career, in addition to looking into a chance to compete as a walk-on for a spot on the University of Florida track team.

“I like this school. I don’t want to leave. But it would be hard to stay here - because it seems like they don’t care at all,” Van Winkle says of JMU.

“It hinges on a judge giving us an injunction. Hopefully the judge will see that this at least needs to be revisited because of the way the administration handled themselves with doing everything in the dark. I think there’s a real shot there - just hoping a judge can see it for what it is. But if that doesn’t work, we’re pretty much shot,” Van Winkle says.

“The hard thing about this is just trying to figure out what I want to do. I mean, I thought I had it all figured out when I came here two years ago,” Van Winkle says.

“Now I won’t have any idea of what I’m doing next year until after this court stuff gets figured out. Which I’m told could be a very long time.”

Filed under: 7-April 2007 Issue