BIEDIGER v. QUINNIPIAC UNIVERSITY

Title IX. Furthermore, I am bound to defer to OCR's interpretation of Title IX. First, the regulation set forth at 34 C.F.R. § 106.41(c)(1), which makes the question whether the "selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes" a factor to consider when determining whether a university provides equal, nondiscriminatory athletic opportunities to both sexes, is a reasonable interpretation of Title IX promulgated by HEW (and, today, enforced by OCR) according to specific congressional delegation. McCormick ex rel. McCormick v. School Dist. of Mamaroneck, 370 F.3d 275, 288 (2d Cir. 2004); Cohen, 991 F.2d at 895 (citing Education Amendments of 1974, Pub.L. No. 93-380, § 844, 88 Stat. 612 (1974)). For that reason, the regulation is owed "`particularly high deference'" under the doctrine of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). McCormick, 370 F.3d at 288 (quoting Cohen, 991 F.2d at 895).

The remaining administrative interpretations of that regulation — the 1979 Policy Interpretation, the 1996 Clarification and accompanying letter, the April and May 2000 OCR Letters, and the 2008 OCR Letter — are also owed deference. The Second Circuit has previously held that courts owe the 1979 Policy Interpretation deference because "it is both persuasive and not unreasonable," and would therefore receive deference under either the standards of Chevron or Skidmore v. Swift Co., 323 U.S. 134 (1944). McCormick, 370 F.3d at 290; see also id. at 300 (applying three-part test of 1979 Policy Interpretation for determining whether high school districts effectively accommodated female students by providing equal athletic participation opportunities). The Second Circuit has not ruled on the deference due the 1996 Clarification, but its sister courts have held that the OCR 1996 Clarification, like the 1979 Policy Interpretation, is deserving of deference. E.g., Mansourian v. Regents of the Univ. of Cal., 602 F.3d 957, 965 n. 9 (9th Cir. 2010) (noting that the Ninth Circuit and other circuits "have held that both the [1979] Policy Interpretation and the [1996] Clarification are entitled to deference," and citing cases in support); see also McCormick, 370 F.3d at 300 (citing, without relying upon, the 1996 Clarification).

Lastly, although no federal court appears to have been presented with the question whether the 2000 and 2008 OCR letters also deserve deference, there seems to be little question that this court should defer to them insofar as they represent OCR's interpretation of its own regulations. As a general proposition, courts are to defer to an agency's interpretation of its own regulations. "It is well established that an agency's construction of its own regulations is entitled to substantial deference. . . . Because applying an agency's regulation to complex or changing circumstances calls upon the agency's unique expertise and policymaking prerogatives, we

presume that the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers." Martin v. Occupational Safety Health Review Comm'n, 449 U.S. 144, 150-51 (1991) (internal quotations omitted); see also Kelly v. Bd. of Trs., 35 F.3d 265, 271 (7th Cir. 1994) (holding that OCR's Title IX policy interpretation is owed deference provided that the interpretation is reasonable). Neither party has challenged the reasonableness or persuasiveness of OCR's interpretations of the Title IX regulations in its 2000 and 2008 letters. That is true despite the letters containing presumptions that are likely detrimental to each party: in the April and May 2000 OCR Letters, Quinnipiac is subject to a presumption against treating competitive cheerleading as a sport, while in the 2008 OCR Letter, the plaintiffs are subject to a presumption in favor of treating NCAA-governed activities, such as Quinnipiac's indoor and outdoor track and field teams, as sports.

Those letters are ultimately entitled to deference because they create a reasonable and persuasive method — best captured by the 2008 OCR Letter, which builds upon the list of factors first proposed in the April 2000 OCR Letter — for determining which activities count as sports for Title IX purposes. The 2008 OCR Letter correctly recognizes that an intercollegiate sport is defined not only by the activity's athletic elements, but also by its structure, administration, and the competition it fosters. Put differently, the OCR factors appropriately weigh not only the physical nature of the activity itself, but also how the experience of participating in that activity compares to the experience of participating on other varsity sports teams. That inquiry is reasonable, persuasive, and entirely consistent with OCR's goal of ensuring not only that female students are offered equal athletic participation opportunities, but that those participation opportunities are real, and not illusory. For those reasons, I will defer to the 2000 and 2008 OCR Letters interpreting OCR's regulations and will use the method they prescribe for determining whether an activity may be treated as a sport under Title IX.

Having concluded that I must defer to the various sources of OCR Title IX regulations, I now synthesize the agency's Title IX analysis to provide the standard of review that I will apply in this case. Whether Quinnipiac has complied with Title IX by providing substantially proportionate athletic participation opportunities for its female students is determined by a two-part test. The first step involves determining which of the University's putative varsity athletic participation opportunities should be counted for Title IX purposes. Whether an athletic participation opportunity will be counted depends on whether it affords an athlete a genuine opportunity to participate in a varsity sport. To be a genuine participation opportunity, an athlete must participate in a legitimate "sport," which is assessed by considering the set of factors set forth in the 2008 OCR Letter. That includes the presumption in favor of NCAA sports being recognized as sports, as well as the presumption against cheerleading being considered a sport, for the purpose of determining whether Quinnipiac provides equal athletic participation opportunities to its female students. And even if an athlete participates on a varsity team in a bona fide "sport," that athlete's participation will be counted under Title IX only if the quality of his or her experience is on par with the experience of other varsity athletes. Thus, whether an athlete counts will hinge not only on whether he or she is on a roster list, practiced with a team, or competed in games over the course of the academic year; it will also be decided by examining the totality of the circumstances surrounding his or her participation.

Once all of the genuine athletic participation opportunities are counted, the second step of the test is to compare the percentage of athletic participation opportunities provided to women to the percentage of women enrolled as undergraduates. Whether there is a substantial proportionality between Quinnipiacs's female athletes and female students will depend not just on a statistical figure but also on other facts specific to Quinnipiac, such as whether any shortage in female athletes is large enough to sustain an independent women's varsity team that the University is not presently sponsoring.

Before applying that standard of review to the facts of Quinnipiac's athletics program, I note two additional points. First, the central issues presented in this case lack much prior case law. It appears that no federal court has yet applied OCR's test for whether a sponsored varsity activity can be treated as a sport for purposes of Title IX. Similarly, there is little precedent on judging whether an athlete's experience on a varsity team qualifies as a genuine participation opportunity — i.e., whether his or her participation opportunity is real, and not illusory. In its amicus brief, the government urges the court to "`look behind [the] numbers' and examine the quality of opportunities being offered" by Quinnipiac in determining which of University's proffered participation opportunities are genuine, just as I did in the preliminary injunction ruling. Br. of the United States as Amicus Curiae (doc. # 154) at 11 (quoting Biediger, 616 F. Supp. 2d at 297). I will apply that same standard here in determining which athletic participation opportunities may be counted in the first part of OCR's test for substantial proportionality.

The second point is briefer. When discussing athletic participation opportunities in this decision, I mean varsity athletic participation opportunities. Quinnipiac provides its students opportunities to participate on club and intramural teams that, no doubt, are meaningful and genuine. The issue in this case, however, is only whether the University's varsity program offers equal opportunity to its male and female students.

III. Conclusions of Law

A. Competitive cheer

Competitive cheerleading is not a sport recognized by the NCAA, and the members of the NCSTA have yet to apply to the NCAA for designation of competitive cheer as an emerging sport. Thus, competitive cheer is not entitled to any presumption in favor of it being considered a sport under Title IX. On the contrary, in its 2000 letters to the MSHSL, OCR explicitly stated that cheerleading is presumptively not a Title IX sport, although the agency reserved the possibility that, in certain cases, a school's cheerleading program could be counted. Consistent with OCR's policy, I turn to the set of factors that the agency uses to determine whether an activity is a sport — specifically, the factors listed in the 2008 OCR Letter — and examine whether, on the facts of the 2009-10 season, Quinnipiac's competitive cheerleading team was a team whose members may be counted as athletes for purposes of Title IX.

1. Program structure and administration

The competitive cheer team's operating budget, benefits and services, and coaching staff are administered by the athletics department in a manner consistent with the administration of Quinnipiac's other varsity teams. The team receives its operating budget and scholarship funding through the athletics department's normal channels. In 2009-10, the cheerleading team was assigned an initial budget of $50,000 that was increased over the course of the year with approval of the athletics department; the team was also given six full-time scholarships to distribute among team members. Furthermore, team members are eligible to receive awards and recognition for their participation: competitive cheer has its own team awards, such as the year's most valuable player award, and members are eligible for, and have received, University-wide recognitions, such as scholar-athlete honors. The competitive cheer team received benefits and services — such as equipment, medical treatment, strength and conditioning coaching, study halls, community service opportunities, and publicity — that were on par with other varsity teams. Finally, the competitive cheer coaching staff was administered like the coaching staff of other Quinnipiac varsity squads. Coach Powers answers to Jack McDonald, the athletic director, and Mark Thompson, the senior vice president for athletics and recreation, and is responsible for coaching and training her players, recruiting new athletes, distributing scholarships, and overseeing her team's budget. Those responsibilities are the same duties for which other Quinnipiac varsity coaches are responsible.

But some factors relating to the team members' participation do diverge from the typical varsity program. For instance, the competitive cheer team does not receive locker space, although the evidence at trial was not clear whether other varsity teams also lacked that benefit. In addition, unlike other varsity teams, the competitive cheer team did not receive NCAA catastrophic insurance, but had to obtain insurance from a separate provider. The most important difference in the team's structure and administration, however, is its recruitment system. In 2009-10, no member of the Quinnipiac competitive cheer team was recruited off campus. Instead, all members of the competitive cheer team were selected from the pool of current Quinnipiac students, including women who were formerly members of the University's sideline cheerleading team and incoming students who individually contacted Powers. According to Lopiano, the plaintiffs' expert, off-campus recruiting is essential for Division I athletics programs. Although not every player on a team need be recruited by a coach — Title IX regulations recognize that a walk-on receives a genuine participation opportunity even though he or she was not recruited — a serious Division I team usually must engage in some off-campus recruiting in order to field a competitive squad.

Powers was unable to recruit off campus for at least two reasons. First, she was ineligible to conduct off-campus recruiting because, unlike the other Quinnipiac head coaches, she had not passed the NCAA's recruiting examination for the 2009-10 season. In addition, Powers was unable to recruit off campus because Quinnipiac established the competitive cheer team in March 2009, which is relatively late in the college recruiting cycle. Lopiano testified that a Division I team usually must begin planning its recruitment at least one year in advance, and that the typical Division I head coach knows who the vast majority of her incoming players will be well before the beginning of the school year. Indeed, in some sports it is not uncommon for elite athletes to be recruited as early as tenth grade, more than two years before they will matriculate at a college or university. By inaugurating the competitive cheer team less than six months before the beginning of the 2009-10 academic year, Quinnipiac did not give Powers much lead time to find participants off campus, even if Powers had been permitted to engage in that kind of recruiting.

Powers testified that her inability to recruit team members off campus did not significantly hamper her team's performance or ability to attract talented athletes. According to her, there was great interest among the undergraduate student body and incoming class in participating on the competitive cheer team, and the pool from which Powers was able to select was strong enough to field a solid squad. But the fact that the cheer team was, in fact, talented does not alter the conclusion that the team's process of recruiting players was different than the process used by Quinnipiac's other varsity teams and, for that matter, the process used by the typical NCAA Division I program. Although Powers is now eligible to recruit off campus — she passed the NCAA recruiting examination in June 2010, in time to recruit players for the 2011-12 season — the team's recruitment for 2009-10 (and 2010-11) was nonetheless inconsistent with the manner in which the University's other teams filled their rosters. That is a significant difference in program structure and administration, as compared to other varsity teams.

2. Team preparation and competition

The 2008 OCR Letter puts forward four criteria in which a team's preparation and competition can be examined: (1) the quality of the team's practice opportunities; (2) whether the regular season differs quantitatively or qualitatively from the regular seasons of other varsity sports; (3) whether the pre- and post-seasons are consistent with other varsity sports; and (4) whether the team is organized primarily for the purpose of engaging in athletic competition. I take up each criterion one at a time.

Most of the evidence submitted at trial concerning the 2009-10 Quinnipiac competitive cheer season dealt with the team's regular and post-season schedules; little was introduced concerning the team's practice regimen. Based on the evidence that was submitted, however, the team's practices appear to be similar to the practice regimen for other varsity squads. First, the competitive cheer team submitted to NCAA restrictions on practice time, which limited the team to eight hours of practice in the off-season and 20 hours of practice, including competitions, during the regular season. Therefore, the number of hours in which the competitive cheer team practiced is consistent with the time other varsity athletes practiced during the 2009-10 school year. Powers also described her practices as being structured and focused on developing team members' skill sets, strength and conditioning, and the team's overall performance. That, too, is consistent with practices for other varsity teams. Finally, competitive cheer practices took place on campus, just like other varsity teams.

Although there is little to no difference between the practice schedule and regimen of the competitive cheer team and other Quinnipiac varsity teams, there are major and, ultimately, dispositive distinctions between the competitive cheer regular and post-season schedules and the schedules for other varsity squads. The 2008 OCR Letter instructs that, in deciding whether a team's season and competition is quantitatively or qualitatively different from established varsity sports, the following factors should be considered: whether the number of competitions and length of play are predetermined by a governing athletics organization, conference, or consortium of institutions; whether the competitive schedule reflects the team's abilities; and whether the activity's season is defined by a governing athletics organization, conference, or consortium. Quinnipiac partially satisfies the first and third factors. Before the 2009-10 season began, the member schools of the NCSTA conferred and agreed that each school would participate in no fewer than eight competitive cheer competitions, and that the competitive cheer season would last 132 days, counting backwards from the NCA championship in Daytona Beach. The NCSTA, however, did not establish a maximum number of competitive cheer competitions; rules for what kind of teams its member schools could play against; or what kinds of scoring systems would be permissible at non-NCSTA competitive cheer competitions. It also does not appear that the NCSTA's rules for the minimum number of meets or the length of a season were enforceable: nothing in evidence shows that the NCSTA could penalize member teams for violating the organization's agreement. Indeed, the NCSTA could not even threaten to exclude violators from participating in the post-season — a stick that the NCAA uses to deter and punish its member schools for violating its rules — because the 2009-10 post-season was administered by

NCA, a third-party organization over which the NCSTA had no authority.

When comparing the competitive cheer 2009-10 season with the seasons of the University's other varsity teams, the competitive cheer team's shortcomings come into even greater clarity. During the Quinnipiac competitive cheer regular season, the team participated in ten competitions. Those events were conducted according to at least five different scoring rules — specifically, the NCSTA, NCA, NECA, Spirit Unlimited, and Cheer Sport scoring systems. Although Powers may have been correct when she stated that all of the formats focused on the same skill sets and employed similar methods for judging teams' performances, the competitive cheer season was still not governed by a single overseeing body, such as the NEC or the NCAA, and, as a result, the rules of competition shifted from competition to competition. No other varsity sport was subject to multiple sets of governing bodies, and every other Quinnipiac varsity team could prepare for games knowing that the rules of competition would remain constant.

The competitive cheer team also held one exhibition before the beginning of the season in which the team put on a demonstration for the Quinnipiac community. Because there was no competition at that event, I am not counting it as part of the team's season for purposes of this analysis.

Furthermore, and perhaps most damaging to Quinnipiac's position, the Quinnipiac competitive cheer team fails to meet the OCR's benchmark that a sports team should play a schedule that reflects its participants' abilities. The competitive cheer team competed against a variety of different opponents over the course of its season, including other collegiate varsity competitive cheer squads, collegiate club competitive cheer squads, collegiate sideline cheer teams, all-star squads, and even high school cheerleaders. In reviewing the other Quinnipiac teams' schedules, no other University varsity team played against non-varsity competition — and,

certainly, no other University varsity team played against non-collegiate competition, such as private all-star or high school teams. The Quinnipiac competitive cheer team plays collegiate club opponents who do not receive varsity benefits, such as scholarships, equipment, and training, and are not held to the same rules and regulations as a varsity program; collegiate sideline opponents who play their "sport" not primarily to compete but to entertain audiences at other sporting and campus events; all-star opponents who have no scholastic affiliations; and high school opponents who are younger, less experienced, and less physically mature than college athletes. No other Quinnipiac varsity team is forced to play such a motley assortment of competitors, and it cannot be doubted that the quality of competition is more variant across the competitive cheer season than across the seasons of the University's other varsity teams. If Quinnipiac is serious that its competitive cheer team is a legitimate varsity sport, then it should not tolerate its team playing against non-varsity collegiate teams, non-scholastic all-star teams, and, especially, athletes who are still in high school.

That leads to the competitive cheer post-season. In 2009-10, the Quinnipiac competitive cheer post-season consisted of competing in the NCA national championship. That championship was open to all schools' cheerleading teams; there was no progressive playoff system or entrance qualification, such as a ranking system or minimum win tally over the course of the season. In fact, being a competitive cheerleading team was not a prerequisite to participating in the NCA event. Teams that engaged exclusively in sideline cheer not only participated, but, according to the NCA's records, formed the overwhelming majority of teams that competed in the NCA championship. Although Quinnipiac competed solely against other collegiate competitive cheerleading teams at the NCA championship, Quinnipiac and its opponents were not ranked, seeded, or winnowed in any way. Instead, they were pitted against each other in a single championship round in which the team with the highest score won. How those schools fared in their regular seasons was irrelevant to their success.

Even if the NCA had wanted to create a progressive playoff, it is hard to imagine how the organization would have been able to rank or seed Quinnipiac, given the inconsistency of the competitive cheer team's regular season. Because Quinnipiac cheerleading competitions were conducted according to different rules and against teams of varying ages, ability, and institutional support, there was no easy way to compare the University's entire season against another's. That is one more way that Quinnipiac's regular season distinguishes it from other varsity sports. When sports teams compete under the same governing rules and against the same types of opponents, athletics organizations can distinguish among teams based on their overall records. But when a sports team competes under a diversity of rules and against a diversity of types of opponents — in other words, when there is not a common system for measuring a team's success across an entire season — an athletics organization such as the NCA cannot sensibly distinguish the top teams from the bottom. That makes creating a progressive playoff system difficult, if not impossible.

Besides not offering a progressive championship, the NCA championship failed to provide a form of competition in keeping with Quinnipiac's season. Powers testified that at the NCA event, her team was forced to participate in a 45-second to one-minute "spirit" segment in which her team's success was judged by the intensity of the elicited crowd response and the number of Varsity Brands props it used. According to Powers, at no point in the 2009-10 season — even during the events that were judged using NCA's scoring system — was her team's score ever determined by the ability to coax a reaction from the audience; furthermore, she testified that raising the crowd's spirit is a hallmark of sideline, not competitive, cheer, and was an activity that the NCSTA explicitly rejected from its format. And at no point during the regular season did her team members use pom poms or other props. No other varsity sport at Quinnipiac introduces a new scoring system or element of competition in its championship that was not present during the regular season. Nor would a varsity sport introduce such a novelty: the whole

point of a championship is to prove who is the best under the rules that each team has had to follow, and learn to excel within, over the course of the preceding year. Yet the Quinnipiac competitive cheer team was subject to precisely that kind of abrupt switch in the rules — a switch for which the squad had not prepared, that was at odds with the skills its members honed over the season, and that clashed with the athletic image the team sought to project. That experience is inconsistent with the post-season of any other varsity team.

Despite its regular and post-seasons being qualitatively different than other established varsity sports, Quinnipiac is correct that it satisfies OCR's fourth criterion for team preparation and competition: that a team's primary purpose be to compete athletically at the intercollegiate varsity level. There is no doubt that the purpose of the competitive cheer team is to compete, and not to cheer others. That conclusion is bolstered by the fact that the competitive cheer team engages in no sideline cheer activity (with the exception of the "spirit" segment in the NCA championship); the competitive cheer team holds tryouts to determine who may participate on the team and Powers selects players based on their athletic abilities; the team engages in regular workouts, practices, and team meetings in order to polish their routines in advance of competition; and the University provides resources to the team for the sole purpose of facilitating competition. Finally, I credit Powers' description of her athletes as being driven to compete; moreover, I take seriously that the competitive cheer members consider themselves to be athletes, and not entertainers.

The plaintiffs do not challenge the competitiveness of the Quinnipiac cheer squad, and neither will I. In the end, however, other factors relating to the structure, administration, team preparation, and competition lead me to conclude that, at this point in time, the University's competitive cheer team cannot count as a sport under Title IX.

3. Summary and conclusion

There are several factors concerning the Quinnipiac competitive cheer team compelling the decision that, for the 2009-10 season, it cannot be counted as a varsity sport for purposes of Title IX. First, the fact that the team did not — and could not — engage in any off-campus recruitment during the season marks a significant departure from what would be expected of any other competitive Division I varsity team. Although the women on the Quinnipiac competitive cheer team were athletically able, they would have been all the more talented had Powers been able to seek out the best competitive cheerleaders around the country, as any other varsity coach would have been able to do.

Second, the Quinnipiac regular season was inconsistent in terms of the rules governing the team's competitions and the types and quality of its opponents. Two basic features of any other collegiate varsity program are the application of a uniform set of rules for competition and the restriction of competition to contests against other varsity opponents. Those features ensure that play is fair in each game, that teams' performances can be compared across a season, and that teams can be distinguished in terms of quality. Those touchstones of a varsity program are absent from the University's competitive cheer 2009-10 regular season.

Third, the Quinnipiac post-season fell short of what would be expected of any other varsity team. Quinnipiac participated in an open invitational that made no distinctions among the relative strengths of the entrants and required the teams to engage in forms of competition associated with sideline, and not competitive, cheerleading. Most other varsity sports would have used some system to separate teams and competitors in terms of quality, and would have ranked, seeded, or excluded teams on the basis of their performances during the regular season. Moreover, any other varsity sport would not have imposed new rules of competition in the post-season that teams did not follow during the regular season.

Finally, I note that, although the competitive cheer team received many benefits and services associated with a typical varsity sport, there were some items that Quinnipiac did not offer, such as locker space, and the NCAA refused to insure the team members. These are relatively minor differences between the competitive cheer and other Quinnipiac varsity teams, however, and they do not weigh heavily in my analysis.

The 2008 OCR Letter does not say how it would balance its factors for determining whether an activity is a sport. Nor does it appear that OCR intended for there to be a mechanical or mathematical process for weighing those factors. Instead, OCR was clear that how those factors are balanced will depend on the circumstances of each case, and that balancing should always be performed with an eye towards whether the participants in a putative sport are receiving genuine athletic participation opportunities equivalent to the opportunities provided to athletes in other established varsity sports. On the facts of the 2009-10 season, I find the Quinnipiac competitive cheer team's inability to recruit off campus, its inconsistent regular season, and its aberrant post-season sufficient to conclude that the women's competitive cheer team was not a varsity sport under Title IX. Although I have only identified three areas where the University falls short, those areas are highly important, if not essential, to the experience of participating on an intercollegiate varsity team. Without proper recruiting, team participants can never feel secure that they are surrounded by the best available talent, or at least the quality of talent that would be typical of other Division I varsity teams. Without a consistent schedule, athletes can never know just how good their team is and whether they have distinguished themselves from their opponents over the course of the season. And without a legitimate post-season, it can never be confirmed who deserves to be crowned a champion.

In its amicus brief, OCR asks the court to pay particular attention and give weight to the factors concerning the 2009-10 competitive cheer regular season and post-season scheduling, which I have done. See Br. of the United States as Amicus Curiae (doc. # 154) at 19-20. An agency's amicus brief is entitled to deference to the extent that it is persuasive. N.Y. State Restaurant Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114, 130 (2d Cir. 2009). Quinnipiac argues that OCR's emphasis on those factors is owed no deference because it is inconsistent with the agency's previous policy statements and is not otherwise justified, both of which sap the brief's persuasive value. The University's argument is not compelling. First, I do not find any conflict between OCR's suggested approach and the agency's previous interpretations of its regulations. OCR has never announced how its factors must be balanced, but has only said that the factors for whether a sponsored activity is a Title IX sport will be assessed on a case-by-case basis. The agency has certainly never proposed the interpretation that Quinnipiac advocates, that each factor be given equal weight such that an activity meeting a majority of the OCR factors will be considered a Title IX sport.

Next, to the extent that the OCR factors are supposed to inform whether the participation opportunities in a putative sport are real, and not illusory, I find the government's position to be persuasive. Whom a team plays against, how often the team plays, under what conditions competitions are held, and how a champion is eventually selected are all essential to the varsity experience; a team's regular and post-season scheduling defines the quantitative and qualitative scope of competition and creates the reason for which team members practice and train during the year. In other words, scheduling strongly affects the terms of an athlete's varsity participation. It is therefore reasonable to place significant weight on those factors. Finally, I do not think that OCR's emphasis on regular and post-season scheduling robs educational institutions of the flexibility that Title IX and its regulations are intended to provide. Schools still retain flexibility in accommodating the athletic interests of their students under OCR's current position. All that the government's brief clarifies is that a university's flexibility under Title IX does not permit it to treat an activity as a sport when, in fact, that activity offers participation opportunities quantitatively and qualitatively different than other varsity teams.

In deciding that competitive cheer is not presently a Title IX sport, I do not mean to minimize the experience shared by the Quinnipiac competitive cheer team. It is unquestionable that the Quinnipiac competitive cheer members engaged in meaningful efforts and activities during the 2009-10 season — efforts and activities that this decision cannot diminish or take away. But what those students experienced was not the genuine opportunity to participate on a varsity team, which is the standard for counting athletes under Title IX. In reaching my conclusion, I also do not mean to belittle competitive cheer as an athletic endeavor. Competitive cheerleading is a difficult, physical task that requires strength, agility, and grace. I have little doubt that at some point in the near future — once competitive cheer is better organized and defined, and surely in the event that the NCAA recognizes the activity as an emerging sport — competitive cheer will be acknowledged as a bona fide sporting activity by academic institutions, the public, and the law. As the evidence in this case demonstrates, however, that time has not yet arrived. For that reason, Quinnipiac may not yet count the members of its competitive cheer team in order to prove its compliance with Title IX.

B. Indoor and outdoor track and field

Unlike competitive cheer, which is not recognized as a sport by the NCAA and which OCR presumes not to be a sport under Title IX, cross-country, indoor track and field, and outdoor track and field are presumptively sports under the statute. Each is recognized as a distinct sport by the NCAA, each team plays for separate conference and national championships, and, as I noted in my preliminary injunction ruling, the activities "are, at their heart, different sports." Biediger, 616 F. Supp. 2d at 295. The plaintiffs do not challenge that cross-country, indoor track, and outdoor track are separate sports, however, and do not assert that the analysis that I applied with respect to competitive cheer should be applied here, too. Rather, the plaintiffs make a different contention: according to them, it is wrong for Quinnipiac to "triple-count" athletes who compete in cross-country, indoor track, and outdoor track as three separate athletes — that is, once for each season that she competes in — because the indoor and outdoor track seasons do not provide cross-country runners with genuine athletic participation opportunities.

The plaintiffs characterize the indoor and outdoor track seasons as, essentially, the cross-country team's nontraditional season. Every other Quinnipiac fall sport continues to practice and play in the spring, and the NCAA regulates those off-season practices and games. Yet, as the plaintiffs note, athletes who compete in fall sports are counted only once under Title IX — specifically, only for their participation during their traditional fall championship seasons. Their participation in the spring, nontraditional season is not tallied for Title IX purposes.

Of course, there are reasons why nontraditional seasons are not counted under the statute. If the test for counting an athlete is whether he or she is provided a genuine varsity athletic opportunity, then the nontraditional season will necessarily fall short. As a matter of NCAA regulation, athletes practice for fewer hours with their teams during the nontraditional season. They also do not prepare for or compete in sanctioned games. Rather, they play in scrimmages and other friendly matches that do not bear on their overall win/loss records and do not build towards a final conference or national championship. Thus, quantitatively, in terms of the number of hours and games played, and qualitatively, in terms of the experience of preparing for and competing in games, a player's involvement during the nontraditional season does not rise to the genuine varsity athletic participation opportunity that would be provided during the traditional season.

The women's cross-country runners all participate in the indoor and outdoor track seasons. Because they are team members during the indoor and outdoor track championship seasons, their experience on those teams exceeds that of other fall athletes participating in their teams' nontraditional seasons. Quinnipiac's female cross-country runners practice with their track teams to the full extent permissible under NCAA rules during their competition seasons; compete in NCAA sanctioned contests over the course of each season; and participate in conference and national championship rounds at each season's conclusion. In other words, they appear to engage in athletic participation opportunities similar to other varsity athletes during their competition seasons. Thus, it does not appear that the University's three-sport female runners can be analogized to other single-sport athletes who also participate in nontraditional seasons.

The plaintiffs next challenge the triple-counting of female cross-country runners by undermining the experiences of being members of the indoor and outdoor track teams. It is true that the indoor and outdoor track teams offer an experience that is arguably quantitatively and qualitatively deficient relative to the experience of other Quinnipiac varsity athletes. First, the indoor and outdoor track teams participated in the bare minimum number of meets — six apiece — during their respective seasons, while all other Quinnipiac varsity teams' schedules approached the NCAA maximum for contests during a season.

Second, although cross-country runners are eligible for athletic financial aid, Martin does not extend scholarships to runners who only compete during the track seasons; therefore, unlike any other team where any member is theoretically eligible for financial aid, on the indoor and outdoor track teams only certain teammates — namely, distance runners also on the cross-country team — may receive it.

Third, the indoor and outdoor track teams are unable to host home meets and the outdoor track team cannot practice on campus, but every other Quinnipiac varsity team (including the competitive cheer team) was able to host at least one home competition.

Fourth, Coach Martin and her two assistant coaches are spread among four teams, which, in the context of Quinnipiac's athletics department, is a setup unique to the University's running teams. But although the coaching structure for the Quinnipiac women's running reams is exceptional, it is important to highlight that Martin and her assistants are not responsible for four rosters of completely different players. Rather, they coach 43 runners total: 13 male cross-country runners, 18 female cross-country runners who also participate in the track seasons, and 12 runners who only participate in track. A single head coach and two assistants may be a lean coaching staff, but it is not that much smaller than the coaching staff available for other large Quinnipiac varsity teams. The men's varsity lacrosse team, for instance, had 41 players in 2009-10 and a coaching staff similar in size to the University's running program. Nonetheless, the coaching structure for women's running is different than other Quinnipiac varsity teams.

Finally, the indoor and outdoor track teams are arguably not as competitive as other varsity teams because they do not recruit for, or enter competitors in, field events. Thus, unlike other varsity squads, the Quinnipiac indoor and outdoor track teams are structured in a way that prevents them from winning as a team. At most, individual participants can work to win individual events and improve their times over the course of the season.

For all of those reasons, the plaintiffs argue, runners on the women's indoor and outdoor track teams do not receive athletic participation opportunities equivalent to the participation opportunities enjoyed by Quinnipiac's other varsity athletes. Even assuming that the plaintiffs are correct that the experience of female runners is different than the experience of the University's other varsity athletes, however, it is not clear that Quinnipiac's runners receive participation opportunities that are different in quantity or quality than the members of other college and university varsity indoor and outdoor track teams. The OCR regulations are ambiguous with respect to whether the genuineness of an athletic participation opportunity is judged by comparing the experiences of one team's members to: (1) athletes competing on different teams at the same institution, and/or (2) athletes competing on the same team at different institutions. Likely, both comparisons are valid. The former analyzes whether a school is providing equal athletic opportunity to its male and female athletes, which is the touchstone of Title IX. See 34 C.F.R. § 106.41(c) ("A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes."). The latter comparison helps clarify whether apparent differences between athletes' experiences on two different teams at the same school amount to a deprivation of genuine participation opportunities. In other words, comparing the same teams at different schools demonstrates whether disparities between different teams at the same school matter.

To illustrate, consider a hypothetical example of a school whose men's tennis team has one coach for ten players and whose women's lacrosse team that has two coaches for 30 players. Whether that disparity in coaching resources — the men's team has one coach for ten athletes, while the women's team has one coach for 15 — results in disparate participation opportunities may depend on whether it is abnormal for lacrosse teams to have that kind of coach-to-athlete ratio. Because a school may allocate resources differently to its teams based on legitimate reasons relating to the nature of the sports — i.e., in the hypothetical, features unique to tennis training or tennis competition may require hiring more coaches than would be necessary for other squads — and not to the players' sexes. Whether such legitimate differences exist can be determined, in part, by looking at similar teams at other schools and how their programs are administered. In this case, whether there are legitimate reasons for the differences between the Quinnipiac track programs and the University's other varsity teams may be determined by comparing the University's indoor and outdoor track teams to indoor and outdoor track teams at other Division I schools.

Some features of Quinnipiac's track teams that seem exceptional are, in fact, ordinary for Division I track and field programs. Martin and Seemes both testified that it is not uncommon for other Division I programs to sponsor varsity track teams even though they lack facilities to host home meets or even on-campus practices. They also said that assigning one head coach and several assistants for all of a school's running teams was a common management structure among Division I varsity programs. Furthermore, Martin and Seemes claimed that other schools also elect to focus on certain types of events — such as, in Quinnipiac's case, distance running — to the exclusion of others, and that other schools besides Quinnipiac choose to enter track events only, even though that puts their teams at a significant disadvantage to other squads that enter players in both track and field events.

But some features of Quinnipiac's indoor and outdoor track teams do appear to be unusual. The University introduced no evidence about whether other schools reserve scholarships specifically for athletes who compete in certain events or who compete across three seasons. It also remains unclear whether teams that only enter track events, and only emphasize certain races, tend to have rosters as large as Quinnipiac's. And there was no showing made that other Division I track programs compete in the minimum, as opposed to the maximum, number of meets allowed by the NCAA. That said, however, Quinnipiac has succeeded, at least somewhat, in rebutting the plaintiffs' claim that the indoor and outdoor track participants are not provided genuine athletic opportunities, insofar as the University has shown its teams to be similar to other Division I varsity track and field programs.

The most convincing reason for not "triple-counting" the women who run on the cross-country, indoor track, and outdoor track teams concerns not the quantitative and qualitative experience of indoor and outdoor track members, but, instead, the intertwined relationship between the cross-country and track programs. Martin testified that her cross-country runners are required to participate on the indoor and outdoor track teams. Thus, those runners do not participate in the indoor and outdoor track seasons only because they want to; rather, as a condition of their membership on the cross-country team, they are bound to continue running in

the winter and spring on the Quinnipiac track teams. Conditioning participation in one sport on participation in another is unique to the women's cross-country team. On no other Quinnipiac squad are players ordered to compete in additional seasons in order to maintain their team membership or scholarship support. Not even the men's cross-country team, which is fundamentally identical in structure and administration to the women's cross-country team, is mandated to compete in the off-season for different teams. Nor could the men's cross-country team condition participation that way: there is no varsity men's indoor or outdoor track team for them to join, and the University has barred male cross-country runners from individually representing the school in winter and spring intercollegiate track meets.

Requiring students to participate on the indoor and outdoor track teams in order to run in the fall cross-country season bears significantly on the quality of an athlete's experience as a track team member. Indeed, it goes to the heart of student amateur athletics: by requiring female cross-country runners to run on teams in the winter and spring, Quinnipiac deprives those students of the discretion to choose which teams they want to join. No other team includes members who participate for the purpose of maintaining their membership with another squad. For sure, some varsity athletes may join or stay on a team for reasons other than the desire to compete: scholarship athletes, for example, may continue playing with a team in order to continue receiving financial aid needed to fund their education. But there is no squad other than women's cross-country where a Quinnipiac athlete must join a second team in order to achieve the goal of competing in his or her favored varsity sport and receiving scholarship aid. Participation on the indoor and outdoor track teams is an additional chore, an added sacrifice of time and energy, for Quinnipiac's female cross-country runners that no other University athletes are asked to make for the right to continue playing on their primary teams. Cross-country is not a sport that inherently requires its players to participate in multiple seasons. If that were true, then the men's cross-country team would also require its players to compete on indoor and outdoor track teams, either on a sponsored varsity team or, at the very least, in their own individual capacities representing Quinnipiac. The University, however, does not permit its male cross-country runners to represent Quinnipiac at winter and spring track meets.

It is because indoor and outdoor track participation is mandatory for the University's cross-country runners that Martin testified that the women's track teams were mere adjuncts to the school's cross-country program — a description whose truth is borne out by the fact that more than half of all the races the indoor and outdoor teams entered were distance events. The women's indoor and outdoor cross-country teams are the only squads that can fairly be described as appendages of another principal varsity team. That sense of inferiority is heightened by the fact that the women's indoor and outdoor track teams can never win a team championship. Unlike the cross-country team, which has won repeated conference championships, the women's track teams can expect to come in no better than third place, according to their coach. Winning a championship is not a prerequisite to providing genuine athletic participation opportunities. But structuring a team to make that goal impossible — here, by minimizing sprint and middle-distance participation, and avoiding field events entirely — does suggest that the participation opportunity is deficient when compared to the experience of other varsity athletes, especially when the track teams' structure is coupled with the requirement that runners participate in track in order to maintain their membership on the cross-country team and receive scholarship aid.

There was no evidence introduced showing that it was common for other cross-country teams to require their athletes to participate in the indoor and outdoor seasons. Although Martin testified that it was common for cross-country athletes to run in all three seasons, she was speaking in terms of what cross-country athletes chose to do on their own volition, and not what they were forced to do by their coaches. I therefore cannot say that Quinnipiac's treatment of its indoor and outdoor track teams as adjuncts to its women's cross-country team — i.e., by forcing cross-country runners to run indoor and outdoor track and structuring those sqauds so they cannot possibly win as a team — is an accepted method for administering Division I varsity track and field teams.

The Quinnipiac women's cross-country team's requirement that its members participate in the indoor and outdoor track seasons recalls roster manipulations similar to those I identified as depriving athletes of participation opportunities in my preliminary injunction ruling. In granting the preliminary injunction, I held that Quinnipiac's practice of setting floors for women's teams rosters artificially inflated the University's number of female athletes and led to an over-counting of Title IX participation opportunities. Biediger, 616 F. Supp. 2d at 296-97. Specifically, the University's requirement that women's team rosters be bigger than necessary led women's teams to keep players on their rosters who would never have genuine participation opportunities over the course of the season, as evidenced by their quitting or being cut shortly after the first day of competition, when the school's EADA reporting data was collected. Id. at 297. In the case of the University's women's indoor and outdoor track and field teams, there is an analogous artificial increase in its rosters: there are more athletes participating on the team than there would have been but for the requirement that cross-country athletes run indoor and outdoor track.

For example, the indoor track team had four cross-country runners who ran no races — three because of injury and one who was red-shirted — and another cross-country runner who ran in only one meet, while the outdoor track team had six runners who did not compete at all because of injury and red-shirting. Had those runners competed only on the cross-country team, their winter and spring would have been an off-season in which, as varsity athletes, they would have had access to trainers and coaches in order to rehabilitate and practice individually. As cross-country runners, their membership on the indoor and outdoor track teams should not have been necessary for them to be recognized as varsity athletes and receive attendant benefits, such as financial aid, training, and physical therapy. Rather, it appears that those injured players remained on the indoor and outdoor track teams because of a rule imposed by their coach and in order for the indoor and outdoor track teams to meet the roster target numbers imposed by the athletics department. That suggests the same kind of roster inflation I previously held to violate Title IX. It may not be as insidious — no female athletes are being booted from their teams after the first day of competition — but it raises the same problem of Quinnipiac counting female athletes who, in effect, are not partaking in genuine athletic participation opportunities but whose "principal role is to provide a gender statistic." Id. at 296.

Unfortunately, the plaintiffs did not establish how many cross-country runners would likely not join either the indoor or outdoor track team if they had the choice. At most, it is certain that the 11 roster spots detailed above — the five non-competitors during the indoor season, and the six non-competitors during the outdoor season — should not have been tallied under Title IX because they did not compete and did not receive any benefits in addition to what they were already obtaining through their cross-country participation. Although the other cross-country runners were obliged to run indoor and outdoor track, it appears that they all were genuine members of the team. In the indoor season, 12 cross-country runners ran between five and seven meets, while another cross-country runner ran four meets; and in the outdoor season, nine cross-country runners ran between five and seven meets, while another three cross-country runners ran three or four meets. The cross-country members accounted for 54.4 percent of the indoor team's races, and 50 percent of the outdoor team's races. When both teams are considered together, the cross-country runners ran 52.2 percent of Quinnipiac's total track events. That is a substantial contribution, and Quinnipiac's Title IX calculation should account for it.

To demonstrate how the participation opportunities of those injured and red-shirted cross-country runners are truly illusory, consider the following hypothetical situation: Imagine that Quinnipiac required every injured or red-shirt female athlete who competes in the fall season to join the women's indoor and outdoor track teams. Those athletes would not be expected to compete in any track meets — rather, they would remain on the injured or red-shirt lists — but, at least nominally, they would be members of the team on the first day of competition. By Quinnipiac's logic in defending its "triple counting" of female cross-country runners, the University should also count my hypothetical injured and red-shirted participants as athletes for Title IX purposes.
Surely, though, it would be unacceptable for Quinnipiac to pump up its women's track team rosters with injured field hockey, soccer, and volleyball players who would never actually compete in the indoor and outdoor track seasons and, for that matter, would never want to enter a race. But that is essentially what Quinnipiac is doing with its injured cross-country runners. The University is requiring women who will not race and who are already receiving varsity benefits to join second and third teams unnecessarily. The only differences between my hypothetical example and what Quinnipiac is actually doing is that cross-country is a running sport somewhat like track, it is not uncommon for varsity running team rosters to overlap at other Division I programs, and the Quinnipiac cross-country and track teams share a coaching staff. Those differences, however, warrant no distinction in the outcome; they do not overcome the central problem of the University padding its rosters with athletes who have no hope of competing or otherwise participating meaningfully during the indoor and outdoor track seasons.

In sum, there are reasons to doubt that all cross-country runners who participate in the winter indoor track season and in the spring outdoor track season receive genuine participation opportunities. The principal reason is the requirement that cross-country runners compete on the indoor and outdoor track teams. That requirement is unlike any condition of participation for other Quinnipiac varsity teams, and, in the case of injured and red-shirted cross-country athletes, it causes the indoor and outdoor rosters to bulge with players who are already receiving varsity resources and benefits, who will not compete or otherwise practice with the indoor and outdoor teams, and who may have no interest in being on those teams' rosters. Although most cross-country athletes may expect to continue running in the winter and spring, it is not necessarily the case that every cross-country runner wants to participate in each competitive season. Lastly, other factors relating to the experience of running indoor and outdoor track — such as the reservation of scholarship funds for certain kinds of athletes, the relatively large rosters sizes for teams that specialize in a small number of events, the minimal number of meets entered in both seasons, and the teams' structural inability to place better than third in the NEC — indicate that the indoor and outdoor track teams are anomalous, and the experience of participating on those squads is different than other Quinnipiac varsity participation opportunities. Those factors, by themselves, are not enough to justify discounting all of the cross-country runners' participation on the indoor and outdoor track teams. But they do further militate in favor of discounting some of the cross-country runners' participation.

Despite raising all of those issues, however, the plaintiffs only succeeded in proving that the injured and red-shirted cross-country runners, who amount to 11 of the 60 roster spots for the combined indoor and outdoor track seasons, should not be counted under Title IX. That number probably should be bigger to reflect the cross-country runners who would not choose to run indoor and outdoor track but who must do so in order to maintain membership on the cross-country team. But the plaintiffs have not demonstrated how much bigger that number should be.

Similarly, the plaintiffs have not succeeded in proving that their identified deficiencies in the indoor and outdoor track programs warrant not counting any cross-country runner for her participation in those seasons. Some triple-counting is warranted because the evidence shows that Quinnipiac's cross-country runners do, in fact, compete in the indoor and outdoor track seasons and appear to be enjoying genuine athletic participation opportunities. Because the plaintiffs have not proven which others athletes who ran in all three seasons should not be triple-counted, I will only subtract the 11 identified non-participants from the roster. In other words, I will count 49 of Quinnipiac's proffered 60 indoor and outdoor track roster spots as genuine participation opportunities.

C. Roster Management

The plaintiffs allege that Quinnipiac is still engaged in the kind of roster manipulation that I held to violate Title IX in my preliminary injunction ruling. They marshal two claims: that the University's roster target numbers do not represent the number of actual participation opportunities, and that the University's system of setting roster targets for its varsity teams creates artificial ceilings for men's squads and floor's for women's squads that deprives women of genuine participation opportunities. The plaintiffs' evidence on the first claim does not establish a Title IX violation. Quinnipiac had no policy in place requiring coaches to hit their roster targets only on the first day of competition. On the contrary, coaches were expected to maintain their roster sizes for the duration of the season and could only deviate from their roster targets with the approval of Thompson, the chief administrator for the University's athletics department. For almost all of the examples that the plaintiffs introduced of alleged roster manipulation, Quinnipiac provided legitimate justifications unconnected to coaches hitting their roster targets. For example, Seeley, the women's hockey coach, gave valid reasons why six players on his roster quit or were cut following the 2009-10 season, and Flynn, the athletics department compliance officer, was able to explain why certain men's teams dropped players following the traditional season and brought on new athletes to take their places in the nontraditional season. Altogether, I find that the evidence does not sustain the plaintiffs' contention that Quinnipiac was engaging in roster manipulation whereby the University's teams cut and added players inappropriately in order to create the appearance of Title IX compliance.

On the other hand, the evidence does support the plaintiffs' argument that Quinnipiac set roster targets that, relative to NCAA and NEC averages, were small for men's teams and large for women's teams. In 2009-10, four of the University's seven men's teams were smaller than the national average by two to four players, and five teams were smaller than the conference average. The only men's teams that were bigger than both averages were the basketball and hockey squads, which are Quinnipiac's premier programs and, therefore, are likely to receive more funding and support from the University. By contrast, eight of the 11 women's teams — that is, every team except the volleyball, indoor track, and outdoor track squads — were bigger than the national average by one to four athletes. The indoor and outdoor track teams' relative paucity in size can be attributed to the teams' failure to carry any athletes participating in field events. Relative to the NEC, seven of Quinnipiac's women's teams — every team except volleyball, ice hockey, and the track squads — were bigger than the conference average.

Those statistics reveal a trend in Quinnipiac's athletics department to field relatively smaller men's teams and relatively larger women's teams. It is true that the differences between the University's rosters and the national averages are, for each team, marginal: no team diverges from the NCAA average by more than four players. Those marginal differences for each team, however, amount to arguably more substantial differences in the aggregate. The following chart, culled from the data in Plaintiff's Exhibit 151, shows the differences between the total roster numbers for Quinnipiac's men's and women's teams (without counting the competitive cheer squad) and the NCAA and NEC averages. In addition, the chart shows the difference between the total roster targets for Quinnipiac's women's teams and the NCAA and NEC averages when indoor and outdoor track and field are not counted. QU TOTAL NCAA AVG TOTAL NEC AVG TOTAL All male athletes 166 176.1 (+10.1) 182.64 (+16.64) All female athletes 244 249.7 (+5.7) 225.78 (-18.22) W/out women's track 184 174.6 (-9.4) 165.78 (-18.22) That chart reveals that the average NCAA Division I school offering the same varsity teams as Quinnipiac would have approximately ten more male athletes, or slightly more than one athlete per team. If the track and field teams are counted, then Quinnipiac would have an above-average number of female athletes, but if the indoor and outdoor track squads are excluded, then Quinnipiac has approximately nine fewer female athletes than the national average, or about one fewer athlete per team. The comparison to the NEC makes the same point more dramatically. An average NEC school offering the same teams as Quinnipiac would have approximately 17 more male athletes, or two more participants per team, and 18 fewer female athletes, which is approximately two fewer participants per team.

Quinnipiac is correct that a policy of imposing roster targets does not, by itself, violate

Title IX. See 1996 OCR Letter ("An institution can choose to eliminate or cap teams as a way of complying with part one of the three-part test."). And the plaintiffs have also not proven how the discrepancies between the sizes of Quinnipiac's teams and average national and conference teams — discrepancies that result in approximately one to two fewer male athletes, and one to two more female athletes, per team — result in the deprivation of genuine participation opportunities for women. At most, the plaintiffs have demonstrated that Quinnipiac has deliberately set its roster targets to achieve Title IX compliance, which OCR permits the University to do.

Even if the Quinnipiac policy of setting roster targets does not provide the plaintiffs a basis for relief, however, it does suggest that any lack of proportionality between the University's athletics program and its undergraduate population is not due to "natural fluctuations in [the] institution's enrollment and/or participation rates." 1996 Clarification at 4. Quinnipiac, rather, has deliberately structured its athletics department to increase women's participation relative to men's, and if the University does not succeed in achieving proportionality, it will not be because of factors external to the administration of its varsity program. In addition, the University's habit of stacking its women's teams lends credence to the plaintiffs' contention that certain members of the indoor and outdoor track teams — namely, the cross-country runners compelled to participate — are not being provided genuine athletic participation opportunities but are counted as team members in order to prop up Quinnipiac's statistics for Title IX purposes.

I conclude, therefore, that the plaintiffs' proof with respect to the University's system of roster management does not entitle them to relief. There is no indication that Quinnipiac is continuing to engage in the manipulation that was the basis for my preliminary injunction ruling. But there is evidence that the University sets below-average roster targets for men's teams and above-average roster targets for women's teams. That roster management technique has not been shown to deprive students of genuine athletic participation opportunities, but only demonstrates that men's teams are marginally smaller, and women's teams are marginally bigger, than national and conference averages. It also shows, however, the purposefulness of Quinnipiac's roster targets. The University set its roster targets with the intent of producing statistics showing that it provides substantially proportional athletic participation opportunities for women. Although that is not necessarily wrong, it does corroborate the plaintiffs' other argument that Quinnipiac was inflating its women's indoor and outdoor track teams with cross-country runners in order to comply with Title IX. More significantly, it supports the plaintiffs' theory that any disparity between Quinnipiac's athletics department and its undergraduate enrollment cannot be attributed to causes such as natural fluctuations in the yearly makeup of the undergraduate population. Rather, the evidence shows that the University's roster targets were carefully chosen and managed, and any shortfall in the number of Quinnipiac's female athletes is attributable to University decision-making and not other external factors.

D. Conclusion

Having analyzed the plaintiffs' three general arguments for why Quinnipiac is not in compliance, I now apply the formal, two-part test that the OCR has promulgated for whether a school provides substantially proportional athletic participation opportunities. First, I will count the total number of athletes; and, second, I will then determine whether that total is substantially proportional to the University's undergraduate female population.

Based on the analysis above, I conclude that at least 41 women must be removed from Quinnipiac's tally of female athletes during 2009-10. Those 41 represent the 30 competitive cheerleaders and the 11 cross-country runners who were injured and/or red-shirted during the indoor and outdoor track seasons. I say that "at least" 41 women must be subtracted because that number likely should be greater in light of Quinnipiac's practice of requiring its female cross-country runners to run indoor and outdoor track. Had that practice not been in place, it is probable that one or more other cross-country runners would have sat out the winter and/or spring track seasons. Because the plaintiffs have not proven who those other runners are, however, I only eliminate 41 female athletes in applying the OCR test. Nevertheless, it is important to note that 41 is likely a conservative estimate of the female athletes who should not be counted.

Quinnipiac's roster count shows that 274 female athletes and 166 male athletes were on their teams on the first day of competition. Forty-one female athletes must be removed from Quinnipiac's count, which leaves 233 female athletes; the total male athletes must be increased by one, to 167, due to the men's ice hockey addition identified by Flynn. That completes the first step of the OCR analysis.

The second and final step is to compare the proportion of women in Quinnipiac's varsity athletics program to the proportion of women in the University's undergraduate population. The University's enrollment data show that in 2009-10, 61.87 percent of Quinnipiac's undergraduates were women. Under the Title IX count, however, 58.25 percent — 233 female athletes out of 400 total athletes — of Quinnipiac's varsity athletes were female. That results in a 3.62 percent disparity.

A 3.62 percent difference represents, in strictly numerical terms, a borderline case of disproportionate athletic opportunities for women. OCR has not established a threshold statistical figure for determining whether a school offers participation opportunities substantially proportional to its enrollment, but instead examines each school on a case-by-case basis. 1996 Clarification at 4. Courts, however, have held that a disparity within two percentage points is proof that an educational institution falls within the substantial proportionality safe harbor. See Equity in Athletics, Inc. v. Dep't of Educ., 675 F. Supp.2d 660, 682-83 (W.D. Va. 2009) (finding no case in which a disparity of two percentage points was held to constitute a lack of substantial proportionality). In light of those holdings, a 3.62 percent difference is, by itself, a relatively thin basis for finding that Quinnipiac was out of compliance during the 2009-10 academic year.

OCR was clear in its 1996 Clarification, however, that raw numbers are only part of the analysis for whether the participation of women in a school's varsity program is proportional to enrollment. In addition to calculating the disparity, OCR considers other factors designed to give context and meaning to a school's shortfall of athletic opportunities for students of a specific sex. Specifically, OCR considers whether natural fluctuations in enrollment contributed to the lack of proportionality, and whether the absolute number of athletic participation opportunities that need to be created to achieve exact proportionality would be sufficient to sustain a viable athletic team. 1996 Clarification at 4.

When those two factors are considered, the 3.62 percent difference indicates that Quinnipiac was not in compliance with Title IX. First, there is no indication that the disparity is attributable to a surge of women enrolling at Quinnipiac. Rather, the 2009-10 undergraduate enrollment was consistent with the University's expectations. Furthermore, the disparity cannot be attributed to any unanticipated drop in female athletic participation or spike in male athletic participation. Quinnipiac carefully selected its teams' roster targets, and the evidence showed

that the University took meticulous steps to ensure that its roster targets were met over the course of the year. There were, therefore, no natural fluctuations in Quinnipiac's enrollment or varsity program that would explain the disparity.

Next, the 3.62 percent disparity represents a shortfall of approximately 38 female athletes. Thirty-eight additional athletes would almost certainly be enough to sustain a new, independent varsity team. There are at least three bases for reaching that conclusion. First, in 2009-10, the biggest Quinnipiac women's teams were the indoor and outdoor track teams, which each listed 30 runners on their rosters — a total that, as explained above, is inflated, but which I will treat as valid for the purpose of conducting this part of the analysis. Based on Quinnipiac's 2009-10 roster targets, the mean size for Quinnipiac's women's teams was 22 members, and the median team size was 24 members. Therefore, it would appear that the additional 38 athletes would certainly be enough to support an additional varsity team, especially when one considers that Quinnipiac's women's rosters tended to be bigger than the national and conference averages.

That number was reached as follows. In order for the 167 male athletes to represent 38.13 percent of the University's varsity athletes, there would have to be 438 total athletes, or 271 female athletes. The difference between the exactly proportional 271 female athletes and the 233 female athletes currently countable under Title IX is 38.

The second reason it can be assured that the 3.62 percent disparity represents enough players to sustain an independent team can be found in the (unsuccessful) actions Quinnipiac took to comply with Title IX. Quinnipiac attempted to meet its Title IX obligations by creating a new sports team, competitive cheer, with 30 participants (which will be increased to 36 participants for the 2010-11 season). Thus, the University's own conduct shows that another viable sports team could be created with the 38 potential athletes who are currently not being offered athletic participation opportunities.

Finally, the University's plans for the 2010-11 year show that 38 female athletes would be sufficient to sustain an independent varsity squad. For this coming year, Quinnipiac plans to eliminate the women's volleyball team and thus subtract its 12 players from 2009-10; add six players to its competitive cheer team; add six cross-country runners; and add five runners to its indoor and outdoor track teams. Assuming that the six competitive cheer players will not be counted because competitive cheer is not a Title IX sport and that, at a minimum, the 16 newly added roster spots for female runners will produce 12 athletes countable under Title IX — in other words, assuming that there remains a disparity of 38 female athletes in 2010-11 — it is certain that an independent sports team could be created from the shortfall of participation opportunities. That independent sports team would be the eliminated women's volleyball squad, a team that, based on Quinnipiac's 2010-11 roster target, requires a mere 14 players to compete.

Application of OCR's 1996 Clarification shows that the 3.62 percent disparity is enough to prove that Quinnipiac has not achieved substantial proportionality and does not fall within the 1979 Policy Interpretation's first safe harbor for Title IX compliance. Although a 3.62 percent is not an overwhelming disparity, it is sufficient to show an absence of substantial proportionality on the facts of this case. The disparity reflects Quinnipiac's deliberate planning and not other external events beyond the University's control, and the number of potential female athletes reflected by that disparity would be more than enough to sustain an additional varsity athletic team. I therefore conclude that, during the 2009-10 school year, Quinnipiac did not offer athletic participation opportunities for women that were substantially proportional to the University's female enrollment. The University was close to achieving that degree of proportionality. Its

decision to gamble on its competitive cheer team being found to be a Title IX sport, and on all of its indoor and outdoor track runners countable under Title IX, however, deprived Quinnipiac of just enough female athletes to meet OCR's first prong for Title IX compliance. I therefore hold, as a matter of law, that Quinnipiac violated Title IX during the 2009-10 academic year by failing to offer equal athletic participation opportunities to its female students.

My ruling would not change to the extent the University argues that, even if it was out of compliance last year, it will be in compliance in 2010-11. I am not convinced that the proffered facts of the upcoming competitive cheer season — namely, an increase in the number and proportion of competitions played according to NCSTA rules, and the creation of an NCSTA championship — are adequate to conclude that, next season, competitive cheerleading will count as a sport under Title IX. Nor am I convinced that all of the additional cross-country, indoor track, and outdoor track runners should be counted as genuine athletic participation opportunities. Those determinations can only be made with a factual record documenting what actually occurred during those teams' seasons. In other words, Quinnipiac's Title IX compliance can only be judged after the completion of the 2010-11 academic year, and not at present, more than six weeks before the year's commencement. Thus, the facts introduced about what Quinnipiac will do in the future do not change my ruling that Quinnipiac violated Title IX and, currently, is not in compliance with the law and its regulations.

IV. Remedy

The plaintiffs have proved that Quinnipiac failed to provide equal athletic participation opportunities to its female students. I now turn to the remedy to which they are entitled. Both parties are in agreement that if I conclude that Quinnipiac violated Title IX then injunctive relief is appropriate. The parties disagree, however, what kind of injunctive relief should be entered. The plaintiffs have requested an injunction that the women's volleyball team continue during the 2010-11 season. But Quinnipiac has requested the right to develop its own compliance plan to be submitted to the court for approval.

Both parties can and should be accommodated. Quinnipiac shall submit a compliance plan describing how it will bring itself into Title IX compliance for 2010-11 and thereafter. Cf. McCormick, 370 F.3d at 301-02 (holding that district court properly entered injunctive relief and ordered the defendants to submit compliance plans for court review). The University is entitled to determine its own method for achieving statutory compliance; the OCR regulations are clear that, although educational institutions must offer equal athletic participation opportunities to both sexes, Title IX gives schools flexibility in deciding for themselves how to best meet that legal obligation. See, e.g., 1996 OCR Letter at 4 ("Ultimately, Title IX provides institutions with flexibility and choice regarding how they will provide nondiscriminatory participation opportunities."). On the other hand, the plaintiffs have proved that the University is currently violating Title IX; cutting the women's volleyball team would only exacerbate that violation. Therefore, any compliance plan that Quinnipiac submits must commit to sponsoring the women's volleyball team during the 2010-11 season. Quinnipiac is not obligated to continue sponsoring the team beyond that point, however, so long as any decision to eliminate women's volleyball is accompanied by other changes that will bring the University into compliance with Title IX.

V. Conclusion

I find in favor of the plaintiffs on their first claim for relief in their first amended complaint (doc. # 101). A declaratory judgment shall issue that the defendant, Quinnipiac University, has violated Title IX and the regulations promulgated pursuant thereto by failing to provide equal athletic participation opportunities to its female students.

Furthermore, Quinnipiac is hereby enjoined from continuing to discriminate against its female students on the basis of sex by failing to provide equal athletic participation opportunities. Therefore:

IT IS HEREBY ORDERED that, within 60 days, Quinnipiac University shall submit to the court a compliance plan detailing how it will achieve compliance with Title IX and its regulations. That compliance plan shall provide for the continuation of the women's volleyball team during the 2010-11 season.

It is so ordered.