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Arezou Mansourian; Lauren Mancuso; Nancy Nien-Li Chiang v. Board of Regents of the University of California At Davis; Lawrence Vanderhoef

August 3, 2011

AREZOU MANSOURIAN; LAUREN MANCUSO; NANCY NIEN-LI CHIANG; CHRISTINE WING-SI NG; AND ALL THOSE SIMILARLY SITUATED,
PLAINTIFFS,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA AT DAVIS; LAWRENCE VANDERHOEF;
GREG WARZECKA; PAM GILL-FISHER; ROBERT FRANKS; AND LAWRENCE SWANSON, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

The opportunity for students to participate in intercollegiate athletics is a vital component of educational development. Such participation helps young adults develop leadership, confidence, determination, grace, discipline, and a myriad of other qualities that will serve them long after they leave college. All students, regardless of gender, should have equal access to participation in athletics. Indeed, both the Constitution and federal law require it.

This case arises out of plaintiffs Arezou Mansourian ("Mansourian"), Lauren Mancuso ("Mancuso"), and Christine Wing-Si Ng's ("Ng") (collectively "plaintiffs") claims that defendants Regents of the University of California (the "University" or "UC Davis"), Larry*fn1 Vanderhoef ("Vanderhoef"), Greg Warzecka ("Warzecka"), Pam Gill-Fisher ("Gill-Fisher"), and Robert Franks ("Franks") (collectively, "defendants") deprived them of the equal opportunity to participate in varsity*fn2 athletics while they were students at UC Davis, in violation of both Title IX and the Equal Protection Clause of the Constitution. Specifically, plaintiffs assert that they were wrongly deprived of their opportunity to participate in intercollegiate wrestling. Through this suit, plaintiffs seek money damages and declaratory relief. Defendants assert that, at all relevant times, the UC Davis athletic program and each individual defendant complied with constitutional and federal mandates regarding gender equity.

The court held a fifteen day bench trial from May 23, 2011 through June 15, 2011. Considering the evidence presented therein, the evidence submitted through stipulation, and the parties' written submissions thereafter, the court enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT*fn3

I. Plaintiffs

1. Plaintiff Christine Wing-Si Ng ("Ng") entered UC Davis in Fall 1998 and graduated in September 2002. (Am. Pretrial Conference Order ("Pretrial Order") [Docket # 549], filed May 4, 2011, ¶ 6.)

2. Plaintiff Arezou Mansourian ("Mansourian") entered UC Davis in Fall 2000 and graduated in June 2004. (Id. ¶ 7.)

3. Plaintiff Lauren Mancuso ("Mancuso") entered UC Davis in Fall 2001 and received her degree in September 2006. (Id. ¶ 8.) Pursuant to a stipulation of the parties, her relevant time period at UC Davis is from Fall 2001 to December 2005. (Trial Transcript ("TT") 554:1-4; 2325:6-17.)

II. History of Gender Equity in Intercollegiate Athletic Participation Opportunities at UC Davis

4. UC Davis is a campus of the University of California system that receives federal funds for its educational programs and is subject to Title IX of the Education Amendments of 1972 ("Title IX"). (Pretrial Order, Stipulations, ¶ 1.)

5. The record is undisputed that since 1970, female students at UC Davis demonstrated great interest in athletic opportunities. (See JX 14, 15; PX 7, 391.) Indeed, hundreds of female students participated each year during the 1980s, 1990s, and 2000s in club team sports such as archery, badminton, bowling, cycling, crew, fencing, equestrian, lacrosse, rifle, ski, water polo, and sychronized swimming. (TT 1155:22-1156:5; 1410:12-20; see PX 17, 391.)

6. However, at all relevant times, females were the underrepresented sex in UC Davis' intercollegiate athletics program. (Pretrial Order, Stipulations, ¶ 1.)

7. Before the passage of Title IX, UC Davis had a philosophy, set forth in "The Davis View" to offer intercollegiate athletics to the greatest number of students possible. (TT 1836:14-18.)

8. As early as May 27, 1970, UC Davis applied this philosophy to conclude that it was desirable to expand both its women's and men's intercollegiate athletic programs. (JX 14, at FP.0749.)

9. Based on the best recollection of those involved in the campus athletic program, when Congress enacted Title IX in 1972, UC Davis supported 7 intercollegiate sport teams for women: basketball, field hockey, swimming, softball, tennis, volleyball, and track & field. (Pretrial Order ¶ 14.)*fn4

10. In January 1972, the UC Davis Women's Intercollegiate Athletic Subcommittee, made up of students belonging to the Women's Athletic Association (including defendant Gill-Fisher), prepared a report for the Intercollegiate Athletic Advisory Board. The report was designed to show the current philosophies, practices and needs of the women's intercollegiate athletic program at UC Davis, as well as trends at the local, regional, and national level. (JX 15; TT 1616:10-1621:10)

11. The report recommended that the campus add women's gymnastics and badminton as intercollegiate sports. (JX 15; TT 1616:10-1621:10.)

12. In 1974, UC Davis added women's gymnastics as an intercollegiate sport. (Pretrial Order ¶ 15; TT 1821:10.) There is no evidence that women's badminton was ever added as an intercollegiate sport.

13. In or about 1976, Gill-Fisher chaired a committee to evaluate UC Davis' compliance with Title IX. (TT 1613:24-1615:22.)

14. In July 1978, Gill-Fisher co-authored a UC Davis Title IX compliance review, which recommended, inter alia, that women's cross-country be considered an intercollegiate sport for 1978. (JX 16; TT 1622:5-1623:12)

15. In 1978, UC Davis upgraded women's cross-country to intercollegiate status. (TT 1622:20-1623:6.)

16. Subsequently, UC Davis discontinued women's field hockey at the end of the 1982-1983 school year. (Pretrial Order ¶ 17.)

17. The discontinuation of women's field hockey was done for legitimate, non-discriminatory reasons; interest in the sport as well as viable competitive opportunities at the intercollegiate level were decreasing.*fn5

18. In the 1980s, interest in field hockey was on a downward slope as the number of teams nationwide decreased and the interest in field hockey in California high schools decreased. (TT 1821:11-15; 1838:16-1839:4.)

19. In the 1980s, only seven colleges in California played field hockey at all. Over that decade, NOR-PAC, the conference in which UC Davis played field hockey, decreased in size from seven schools to three schools. (TT 2461:2-5; 2462:21-2464:9.)

20. Further, finding fields suitable for field hockey was a pervasive problem because field hockey requires an even, manicured surface that makes it difficult for field hockey teams to share fields with teams from other sports. (TT 2461:14-2462:19.)

21. At the same time, interest and competition was increasing rapidly in women's intercollegiate soccer. (TT 1821:11-15, 1838:4-1839:3; 1625:3-1627:7.)

22. UC Davis evaluated the high schools, junior colleges, and universities in its area and saw many schools were offering soccer, with the result that UC Davis had a solid recruiting base and expectation of competition in women's soccer. (TT 1626:21-1627:7.)

23. As such, women's field hockey was replaced by women's intercollegiate soccer in the fall of 1983. (Pretrial Order ¶17.)

24. Thereafter, sometime in the late 1980s, UC Davis appointed Dennis Shimek as its Title IX Compliance Officer.*fn6 (TT 2331:5-9; 1858:2-16.)

25. In 1989, UC Davis commenced a comprehensive Title IX review, which formed the foundation for UC Davis' subsequent progress in program expansion for women student-athletes. (JX 17; TT 1630:9-1633:6; 1826:3-1827:2.)

26. The review made findings that UC Davis was not in compliance with Title IX under any of part of the three prong test.*fn7 (JX 17, at 10-17.) Specifically, when compared to the enrollment rates of male and female students, the data collected in the review confirmed that UC Davis was offering men hundreds more athletic participation opportunities than women relative to enrollment.*fn8 (JX 17, at 3763.)

27. In accordance with the philosophy espoused in "The Davis View," UC Davis preferred trying to add women's teams rather than eliminate men's teams in attempting to comply with Title IX. (TT 2342:24-2343:8; 646:2-12.)

28. As such, the review resulted in a recommendation that UC Davis establish steps to increase women's participation opportunities. (JX 17, at 10-17.)

29. Moreover, beginning in 1990, and continuing through 1992, then Assistant Athletic Director Pam Gill-Fisher recommended that UC Davis eliminate the junior varsity football team to save funding and decrease the disparity between men's and women's intercollegiate athletic participation opportunities. (TT 1637:10-1638:19.)

30. The January 10, 1991 Report on Intercollegiate Athletics, prepared by athletic department administrators, reported that women were receiving 300-400 fewer participation opportunities than men for each year from 1986 to 1991, and recorded a drop of 120 female participation opportunities from 1989 to 1991 alone. (PX 13, at DEF 1266.)

31. On June 27, 1991, Gill-Fisher submitted a Title IX review to then Athletic Director Jim Sochor, noting the discrepancy in male and female participation rates and that no steps had been taken to increase athletic participation opportunities for women. (JX 18.)

32. On December 20, 1991, Gill-Fisher submitted an update regarding Title IX compliance from June to December 1991, noting that participation opportunities remained a problem. (JX 19; TT 641:23-643:7.)

33. On June 5, 1992, Gill-Fisher prepared the next Title IX review, again noting that participation opportunities were a major concern. (JX 66.)

34. In November 1992, Gill-Fisher wrote a Title IX compliance memorandum to then Athletic Director Keith Williams ("Williams"), warning of backsliding on movement toward Title IX compliance. In order to deal with participation ratios, the memorandum recommended, inter alia, eliminating all junior varsity teams, establishing roster caps for all sports, and adding women's crew and women's golf. Gill-Fisher also warned that UC Davis needed to implement a plan to address participation ratios or risked facing an OCR complaint or potential lawsuit. (JX 22; TT 1646:2-1649:9.)

35. In December 1992, Gill-Fisher alerted then Vice Chancellor for Student Affairs, Bob Chason, to participation ratio issue and potential solutions, including capping men's rosters and adding women's sports. (JX 23; TT 1389:2-1389:25.)

36. Junior varsity football and men's junior varsity basketball were dropped following the recommendation from Gill-Fisher. (JX 26; TT 1638:10-14; 649:11-651:12.)

37. On May 27, 1993, Gill-Fisher wrote a strongly-worded Title IX report to Athletic Director Williams, again expressing major concern with participation ratios. Specifically, the report noted that while football was mandated to have 180 participants, it still had 250. The report also noted that there were 40 women on a national championship club water polo team and that there was strong interest in forming an intercollegiate women's crew team. Gill-Fisher stated her opinion that the University was not providing women with participation opportunities as required by law. (PX 25.)

38. Also in May 1993, Williams prepared a preliminary draft of a plan to address several Title IX concerns. The draft plan included expansion of women's sports opportunities combined with elimination of junior varsity football within the coming year.*fn9

The draft plan also noted that the current year participation ratios were 68% men and 32% women, but contemplated a 3-5 year timeline for achieving participation ratio compliance. (JX 25; TT 670:13-674:2.)

39. In 1992-1993, UC Davis was facing massive budget cuts that would have eliminated, among other things, state funds for athletics, resulting in a total program cut of about 70 percent. (TT 652:19-654:19; 1190:13-1192:16.)

40. In response, UC Davis worked with student organizations to propose student referendums for additional fees to preserve the athletic program. (TT 653:1-5; 1193:24-1195:18.)

41. In 1993, students passed a referendum that provided for three years of additional student funding. (TT 1196:5-11.)

42. In 1994, students passed a second referendum (the "SASI" referendum) that provided for sufficient fee increases to preserve the current program and add three new women's sports. (TT 690:6-24; 1196:12-1197:9.)

43. UC Davis elevated women's water polo, lacrosse, and crew from club status to varsity status. (Pretrial Order ¶ 23.)

44. The addition of the three new intercollegiate sports established 131 additional participation opportunities for women in the 1996-1997 school year, the first year those new teams competed. (JX 89; TT 1393:8-10.)

45. In December 1996, Gill-Fisher sent then Athletic Director Warzecka a memo, warning that although the addition of the new sports would improve the participation ratio for women's athletic opportunities, it would not alone solve the participation opportunity discrepancy. She recommended analyzing the size of the men's teams to determine whether they were carrying more student-athletes than necessary for competition. (JX 35; TT 1661:13-1663:3; 1019:3-1020:2.)

46. In December 1997, Dave Wampler of the UC Davis Administrative Athletic Advisory Committee ("AAAC") sent then Associate Vice Chancellor for Student Affairs Franks and Warzecka a letter, noting the continuing disproportion of women's participation rates based upon the "NCAA Gender Equity Survey, UC Davis 1996-1997." The AAAC recommended that the size of most men's sports teams be reduced. (JX 37; TT 1020:10-1021:8.)

47. In November 1998, the difference between the female enrollment percentage and the female athletic participation percentage was almost 12 percent. (JX 89.) Warzecka had a goal of achieving a participation ratio disparity of only 5 percent. (PX 54; TT 1022:20-1026:3.)

48. UC Davis implemented a roster management program for men's intercollegiate teams as part of its efforts toward achieving substantially proportionate athletic participation opportunities. Roster management was needed because some of the men's teams were unnecessarily large in relation to how many competitors they needed, and the large numbers put a strain on the budget; trimming the excess participants helped address the participation ratio. (TT 2064:20-2068:18; JX 35.)

49. In December 1998, UC Davis Provost and Executive Vice Chancellor Grey appointed Gill-Fisher and members of a Title IX workgroup to advise the athletic department about Title IX issues. A multi-year plan was to be established and monitored by the workgroup. (PX 59; TT 2025:9-2028:10.)

50. At the same time, Title IX reporting switched to a more collective approach involving the Title IX workgroup. Warzecka testified that the change was made because he viewed Title IX compliance as a University-wide issue, not the responsibility of one individual. (TT 2026:19-2028:10; see also TT 2366:18-2367:9.)

51. In the 1998-1999 school year, UC Davis declared women's indoor track & field as a separate intercollegiate sport. (TT 2049:23-2050:9.)

52. Although women had been competing in indoor track & field events as UC Davis student-athletes prior to the 1998-1999 school year, (1) additional funding was allocated to expand the number of indoor track & field venues UC Davis women were able to travel to and compete at; (2) the NCAA changed its reimbursement rules allowing UC Davis to be eligible for reimbursement of indoor track & field championship expenses; and (3) the EADA reporting template began listing indoor track & field as a separate sport from outdoor track & field. (TT 2046:18-2050:19.)

53. As such, the court finds that indoor track & field was elevated to varsity status in the 1998-1999 school year, and participation opportunities for female student-athletes increased as a result of this addition.*fn10

54. In May 1999, the Title IX Workgroup prepared a draft 3-year plan for UC Davis athletics, noting that the participation rate of women athletes had risen to about 48 percent, but was still less than the 55 percent female undergraduate enrollment. The plan projected that further roster management of men's teams would reduce the discrepancy of female athletic participation to 5 percent in the next school year. Ultimately, despite the application of a men's roster management program, increasing female enrollment at the University kept the discrepancy at 6 percent for 1999-2000. (JX 43; TT 2028:13-20-2033:9.)

55. As of October 2001, there were intercollegiate teams for women at UC Davis in 13 sports: basketball, cross-country, gymnastics, lacrosse, rowing, soccer, softball, swimming/diving, tennis, outdoor track & field, indoor track & field, volleyball, and water polo. (Pretrial Order ¶ 18.)

56. As of that date, there were intercollegiate teams for men at UC Davis in 12 sports: baseball, basketball, cross-country, football, golf, soccer, swimming/diving, tennis, outdoor track & field, indoor track & field, water polo, and wrestling. (Id.)

57. In 2001, the Title IX Workgroup prepared the Equity in Athletics Plan, which set forth a goal of achieving Prong One compliance via roster management and, if the female undergraduate population continued to increase, by adding new women's sports. (JX 48, 49; TT 2054:21-2059:1.)

58. In December 2003, the Title IX Workgroup issued a Gender Equity Strategic Review in the form of a table. The review set a plan to "act on" club sports interest in obtaining varsity status, to "review" the student body regarding its interest in athletics, and to "evaluate" the athletic program to ensure it was complying with Title IX. (DX GG; TT 2366:18-2370:14.)

59. In 2004, the Title IX Administrative Advisory Committee (formerly the Title IX Workgroup) issued a new review, now titled the ICA*fn11 Strategic Plan 2004-2007, in a format to conform to NCAA membership committees' forms. The plan set out the action of adding women's golf and continuing to implement and review roster management. (DX MM; TT 2059:5-2060:10.)

60. In 2004, UC Davis added women's golf as an intercollegiate sport. (TT 2159:7-2160:12; JX 81.)

61. As of December 2005, there were intercollegiate teams for women at UC Davis in 14 sports: basketball, cross-country, golf, gymnastics, lacrosse, rowing, soccer, softball, swimming/diving, tennis, outdoor track & field, indoor track & field, volleyball, and water polo. (Pretrial Order ¶ 19.)

62. As of that date, there were intercollegiate teams for men at UC Davis in 12 sports: baseball, basketball, cross-country, football, golf, soccer, swimming/diving, tennis, outdoor track & field, indoor track & field, water polo, and wrestling. (Id.)

63. In 2003, UC Davis announced that it would reclassify from NCAA Division II to NCAA Division I; the process took four years to complete. (Id. ¶ 26.)

A. Applications for Addition of Women's Sports Teams

64. UC Davis monitored undergraduate interest in athletics by looking at participation in club sports and intramurals. (TT 2341:7-2342:16.)

65. However, it did not conduct a survey of student interest prior to 2004, did not conduct an analysis in writing, and had no formal policy for evaluating and assessing interest. (TT 1410:21-1411:13; 1736:23-1737:3; 2190:7-25; 2192:11-24.)

66. Further, there is no evidence that UC Davis had an established process by which it assessed interest by high school students, outside athletic associations, or other academic institutions.

67. Indeed, aside from the two times they solicited varsity applications in 1994 and 2003, UC Davis did not implement a formal system for assessing interest in specific athletic opportunities from 1972-2005. (TT 1253:22-24; 1279:13-19; 1410:21-1411:1; 1411:2-13; 1736:23-1737:3; 2192:1-24.)

1. Women's Cross-Country*fn12

68. In response to requests made from intercollegiate athletic coaches, UC Davis upgraded women's cross-country to varsity status in 1978. Specifically, Sue Williams, who became the women's varsity cross-country coach, provided information supporting the upgrade to then Athletic Director, Joe Singleton ("Singleton"). Singleton sought information regarding whether cross-country had a viable pool of potential athletes, whether Sue Williams could create a potential schedule with similar institutions, and whether cross-country was competitively viable. (TT 1511:5-1512:11; 1622:20-1623:6.)

69. Gill-Fisher recommended the upgrade in the July 1978 Title IX review. (JX 16; TT 1622:5-1623:12.)

2. Women's Water Polo, Lacrosse, and Crew

70. UC Davis solicited proposals for new women's varsity sports in 1995 and again in 2003. (Pretrial Order ¶ 22.)

71. In January 1995, a sport selection advisory committee chaired by the acting Athletic Director was formed to evaluate teams and identify the three women's sports to be added. (TT 696:3-25.)

72. The campus developed a detailed, analytical process for selecting the new sports, which involved input from persons outside of the Athletic Department. The process involved a series of steps: (1) the committee would prepare materials for interested parties to use in preparing new sport proposals, including a description of the relevant criteria; (2) the intercollegiate athletic administration would provide support to groups interested in making a proposal, or intercollegiate athletic staff would develop the proposal themselves if no representative group was available for a potential new sport; (3) proposals would be circulated to a number of campus committees and organizations; (4) the sport selection committee would meet with groups making proposals; (5) the sport selection committee would receive comments from interested committees and organizations; (6) the sport selection committee would summarize comments and assist the Athletic Director in making final recommendations; and (7) the Athletic Director would submit new sport recommendations to the Associate Vice Chancellor for Student Affairs. (JX 31.)

73. The committee developed a detailed set of criteria to evaluate the new sport proposals, including impact on gender equity, interest in the sport at various levels, sport sponsorship and competitive opportunities within conference or NCAA, availability and cost of appropriate facilities, equipment and operating expenses for the sport, use of training rooms, coaching requirements, minimum roster numbers for a successful program, and anticipated success at the NCAA level. (JX 31; TT 696:3-700:5; 1727:14-1729:13.)

74. In 1995, the following women's club teams submitted applications to be elevated to varsity status at UC Davis: water polo, lacrosse, crew, badminton, and field hockey. (Pretrial Order ¶ 23.)

75. After receiving input from various constituent groups and the sport selection committee, UC Davis elevated women's water polo, lacrosse, and crew to varsity status. (Id.; TT 707:6-708:9; 1200:5-16; JX 34.)

76. The decision to add these sports was responsive to the developing interests and abilities of female students at UC Davis. (TT 1657:22-1660:24.)

77. Viable women's club teams already existed for all three sports, and each had increasing rates of participation at both high school and collegiate levels. (TT 705:3-5; JX 28-30 & 33-34.)

78. Specifically, the women's water polo club team had won championships at the club level, and the sport was on the NCAA list of emerging sports for women. (TT 1487:5-1489:4; JX 28.0945-46; JX 30; JX 34.)

79. Women's lacrosse had high participation rates at UC Davis (ranging from 40-100 women over the five years before it was elevated to varsity), and nationwide high school participation in women's lacrosse had dramatically increased 131% over the previous five years. (JX 29, 34.)

80. Crew for women had large sports club participation at UC Davis, first-rate facilities at Lake Natoma and the Port of Sacramento, and a PAC-10 championship. (JX 28, 33-34.)

81. Although it was a close call in comparison to lacrosse, field hockey was not chosen. The majority of the committee believed that nearby competition in lacrosse would likely be more plentiful because more colleges in UC Davis' region had club teams that might be moving up to intercollegiate status. (TT 708:19-709:25.) Field hockey also had much more stringent and expensive field requirements than lacrosse. (TT 723:22-724:25.)

3. Women's Indoor Track & Field

82. In 1993, the women's intercollegiate track & field coach, Deanne Vochatzer ("Vochatzer"), approached the Athletic Director, Keith Williams ("Williams") about the issue of adding indoor track & field as a varsity sport. She believed it would be beneficial to the members of the outdoor track & field team and would aid in recruiting. Mr. Williams approved of having student-athletes compete in indoor track & field events, but given the financial crisis occurring at the time, required Vochatzer to find funds within her existing team budget to do so. (TT 1562:6-1563:17.)

83. Shortly after defendant Warzecka became Athletic Director, Vochatzer raised the issue of indoor track & field with him and requested additional funds in order to take female student-athletes to indoor track & field events. (TT 2049:4-9.)

84. The facility in Reno where many of the indoor track & field events were held had fallen into disrepair, and thus it was necessary to travel further distances to competitions, such as Seattle and Idaho. (TT 1565:2-1566:4.)

85. The NCAA began reimbursing championship expenses for indoor track & field for Division II schools in the 1996-1997 school year. (TT 1566:5-14.)

86. Warzecka agreed to provide more funding so the team could compete in more indoor track & field competitions and NCAA indoor track & field championships. (TT 2048:11-2050:19.)

87. The first year UC Davis was able to report indoor track & field as a separate sport on its EADA report was 1998-99. (JX 4, at B52.) UC Davis began reporting indoor track & field as a separate sport in its 1998-1999 EADA report. (Id.; TT 2046:11-2047:9; see also JX 89.)

4. Women's Golf

88. The process for adding women's golf was based on the same process that was used to add the three sports in 1995-96. (TT 1726:5-16.)

89. The process of program expansion began again in 2002. (TT 2364:23-2365:20; TT 2129:17-2131:2; DX EE.)

90. In April 2003 information was disseminated to club sport teams, students, and other members of the campus community regarding the process and criteria to be used for selection of a new intercollegiate sport for women. (TT 1726:17-1727:13; 1730:11-14; 2135:17-2136:17; JX 74.)

91. The criteria for assessment of potential intercollegiate sports included impact on gender equity, interest in the sport at various levels, sport sponsorship and competitive opportunities within conference or NCAA, availability and cost of appropriate facilities, equipment and operating expenses for the sport, use of training rooms, coaching requirements, minimum roster numbers for a successful program, and anticipated success at the NCAA level. (TT 1727:14-1729:13; JX 74.)

92. The following women's club teams submitted applications for varsity status at UC Davis: field hockey, rugby, horse polo, and bowling. (Pretrial Order ¶ 24.)

93. A proposal to add golf as a varsity sport for women was submitted by Associate Athletic Director Bob Bullis. (Id.)

94. The 1995 process, upon which the 2002-2003 process was based, specifically stated that an intercollegiate athletic employee would prepare the proposal if no representative group was available to prepare a proposal for potential new women's sports. (JX 31, at RPD1.2187.)

95. The addition of women's golf at UC Davis had been discussed multiple times before the 2002 process, including as early as November 9, 1992. (TT 1656:4-13, 1730:1-1732:8; JX 22.)

96. Indeed, Warzecka had received an inquiry from the President of California National Organization for Women ("Cal NOW") in December 1998 suggesting the addition of women's golf. (JX 41.)

97. Further, there was high participation in women's golf at California high schools and junior colleges, and the sport was attracting numerous e-mail inquiries from prospective students. (TT 1734:15-1735:7.)

98. Defendant Warzecka recommended to Vice Chancellor for Student Affairs, Judy Sakaki, that golf be added as the next intercollegiate sport for women because: (1) golf was already played as a championship sport in the Big West Conference, and UC Davis was therefore required by conference rules to add conference championship sports before adding other sports; (2) competition was plentiful because 451 colleges had intercollegiate women's golf programs; (3) women's golf had an NCAA championship in all three NCAA divisions; (4) golf was offered for women at 639 high schools and 27 junior colleges, providing a strong recruiting base; (5) UC Davis was receiving numerous e-mail inquiries about the availability of women's golf; (6) the Davis community indicated strong interest and financial support for women's golf; and (7) a local golf club course was available. (TT 2160:1-2163:11; JX 81.)

99. In June of 2004, UC Davis announced that it would add women's golf as a new varsity sport. (Pretrial Order ¶ 25.)

100. Head coach, Kathy DeYoung, was appointed at that time and spent academic year 2004-2005 building the team. This included developing a budget, constructing a schedule of competition, obtaining equipment, and spending time with the golf programs at Washington, UCLA, and Berkeley to learn how top programs operate. (Id.; TT 2164:7-2165:4; 2259:15-2260:5.)*fn13

101. The team commenced competition in the fall of 2005. (Pretrial Order ¶ 25.)

102. Under all the relevant circumstances, the court finds the addition of women's golf was responsive to the developing interests and abilities of female student-athletes.

103. There were a number of legitimate reasons UC Davis choose not to elevate the other sports that sought intercollegiate status when it elevated women's golf.

104. With respect to field hockey, although there was a longstanding club team, UC Davis did not have an adequate turf facility to host intercollegiate field hockey competition. (TT 2137:2-20; JX 80.) Further, none of the schools in the Big West Conference, which UC Davis was joining, had varsity field hockey teams, and there were only three teams in all of California. (TT 2147:11-2151:11.)

105. With respect to rugby, women's rugby was designated an emerging sport by the NCAA, but there was no conference with existing competition for a schedule, and only one other intercollegiate team in the country. (TT 2138:1-6; 2158:13-22; JX 78, at 5.)

106. With respect to horse polo, there was a lack of regional competition, a lack of local facilities for competition, and the sport would have required considerable expenses for maintaining and transporting horses. (TT 2138:10-2139:1.)

107. With respect to women's bowling, UC Davis had an existing club and a facility, but it was not an NCAA sport and the only existing intercollegiate competition was in the Southeast, necessitating considerable travel costs and lost student class time. (TT 2139:2-2140:10, 2144:25-2146:18.)

108. Accordingly, these sports were not chosen for elevation to varsity status.

B. Equity in Athletics Disclosure Act ("EADA") Reports*fn14

109. EADA reporting began in 1995-1996. (JX 1; TT 1823:24-1824:1.)

110. Pursuant to the requirements of the EADA, UC Davis has submitted a report to the Department of Education, Office for Civil Rights, each fall since 1996 setting forth: (1) undergraduate enrollment numbers at UC Davis by gender; and (2) the number of male and female participants on intercollegiate sport teams on campus. (Pretrial Order ¶ 20.)

111. The parties agree that Joint Exhibit 89 accurately reflects the relevant information provided on the EADA reports for each year from 1995 through 2006.

112. In 1995-1996, there were 211 total female participants in varsity athletics.*fn15 The difference between the female enrollment percentage and the female athletic participation percentage was 20 percent. (JX 89.)

113. In 1996-1997, there were 348 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 11 percent. (JX 89.)

114. In 1997-1998, there were 383 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 11 percent. (JX 89.)

115. In 1998-1999, there were 426 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 7 percent. (JX 89.)

116. In 1999-2000, there were 424 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 6 percent. (JX 89.)

117. In 2000-2001, there were 407 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 7 percent. (JX 89.)

118. In 2001-2002, there were 361 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 9 percent. (JX 89.)

119. In 2002-2003, there were 389 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 7 percent. (JX 89.)

120. In 2003-2004, there were 373 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 6 percent. (JX 89.)

121. In 2004-2005, there were 363 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 6 percent. (JX 89.)

122. In 2005-2006, there were 401 total female participants in varsity athletics. The difference between the female enrollment percentage and the female athletic participation percentage was 5 percent. (JX 89.)

123. Between 1998-1999 and 2001-2002, UC Davis eliminated 65 female participation opportunities. (JX 89.) 31 of these eliminated participation opportunities arose as a result of the elimination of the women's water polo and women's lacrosse junior varsity (or "B") teams, which were dropped in 2000-2001 due to lack of sufficient competition at the intercollegiate level. (JX 5, 7; TT 1840:3-1842:2.)

124. The women's water polo coach requested the change regarding the junior varsity team because fewer colleges were sponsoring "B teams," thereby decreasing the opportunities for junior varsity players to play in games. (TT 1494:2-1495:6.) The women's water polo coach helped re-establish the UC Davis club team, which went on to have considerable success in competition. (TT 1495:7-1496:7.)

125. The women's junior varsity lacrosse team was also discontinued at the request of the coach, Elaine Jones, on the basis of lack of competition from other colleges. (TT 1634:8-1635:10; 1665:11-1666:25; 2073:4-2074:3; 2076:21-2077:8.)

126. The lack of competition was a legitimate reason to drop the JV teams. (TT 1834:23-1835:8, 1835:21-1836:10.)

127. However, UC Davis did not replace the dropped opportunities. (JX 17.)

128. By 2005, actual athletic participation opportunities for female students were at their lowest point since 1997. (JX 89.)

C. Expert Testimony*fn16

129. Plaintiffs' expert Dr. Donna Lopiano ("Dr. Lopiano") is a nationally and internationally recognized, leading expert in gender equity in athletics. (JX 85; TT 760:21-761:3; 761:25-762:22; 763:4-773:23; 775:3-778:17.) Dr. Lopiano has served as an expert witness in over 30 cases, including in seminal cases addressing Title IX and the Equal Protection Clause in athletics, such as Cohen v. Brown University and Haffer v. Temple University. (JX 85, at 6-7; TT 776:14-777:4.)

130. Dr. Lopiano is currently the Chief Executive Officer of Sports Management Resources, a consulting firm. (JX 85.) She was the Chief Executive Officer at the Women's Sports Foundation. She has also been a coach of multiple sports and an athletic director for more than 18 years at the University of Texas at Austin. (JX 85; TT 764:17-23; 766:2-2-767:5.). She was active in the development of regulations to implement Title IX and various policy interpretations and guidelines promulgated by the Department of Education's ("DOE") Office for Civil Rights ("OCR"), including the OCR's 1979 Policy Interpretation, the OCR's 1996 Clarification of the Three-Prong Test, and the OCR's 2011 Clarification of Prong Three. Dr. Lopiano also assisted in the development of the 1980 and 1990 versions of the OCR Investigator's Manual and trained staff at OCR regional offices on various issues related to Title IX in athletics. (TT 775:3-776:13).

131. The court found Dr. Lopiano to be qualified as an expert witness in this matter on the issues of gender equity in athletics, Title IX, athletic administration, and roster management. (TT 777:17-23.)

132. Defendants' expert Dr. Christine Grant ("Dr. Grant") is also a nationally and internationally recognized, leading expert in gender equity in athletics. (JX 83; TT 1794:3-1800:5.) Dr. Grant has served as an expert witness in several cases, including in seminal cases addressing Title IX in athletics, such as Cohen v. Brown University. Before this case, Dr. Grant has always testified on behalf of student-athletes. (JX 83; TT 1803:14-1804:13.)

133. Dr. Grant is a Senior Associate at Sports Management Resources, a consulting firm. She has also been a coach of multiple sports and was an athletic director for 27 years at the University of Iowa. (JX 83; TT 1785:13-1788:13; 1789:19-23.) She was also active in the development of regulations to implement Title IX and various policy interpretations and guidelines promulgated by the OCR, such as the OCR's 1979 Policy Interpretation and the OCR's 1996 Clarification of the Three-Prong Test. (TT 1800:6-1803:8.)

134. The court found Dr. Grant to be qualified as an expert witness in this matter on the issues of gender equity in athletics, Title IX, athletic administration, and roster management. (TT 1811:4-1812:6.)

135. Dr. Grant has known Dr. Lopiano since the 1970s. Indeed, during the pendency of this case, Dr. Grant was hired by Dr. Lopiano's consulting firm, Sports Management Resources. (TT 1792:11-23.)

136. This is the first case in which Dr. Grant and Dr. Lopiano have been on opposite sides of a case. (TT 1793:22-24.)

1. Proportionality

137. Schools exercise total jurisdiction over the proportion of males and females in their athletic programs. They control and predetermine the number of males and females participating in the programs through their selection of which sports to offer male and female students and by making decisions about the quality of the coaching and the quality of the program. (TT 994:22-995:7; 1880:4-1881:10.)

138. As used in this case, the "proportionality" measure compares the percentage of women enrolled at UC Davis with the percentage of women participating in the intercollegiate athletic program. (TT 819:16-820:3.) A university provides equal participation opportunities in intercollegiate athletics if women occupy the same percentage of athletic opportunities in the intercollegiate athletic program as their enrollment percentage. (TT 820:19-821:12).

139. The number of participation opportunities that a school would have to add for women to achieve actual proportionality (equity with what is provided to male students proportionate to enrollment) is known as the participation gap. (TT 823:14-827:23.)

140. Both Dr. Grant and Dr. Lopiano testified that, in the Title IX context, "substantial" proportionality is reached if the participation gap is less than the size of a female sports team that could be added.*fn17 (TT 820:19-821:12; 1876:14-1877:8.)

141. An institution may not rely on a set percentage from actual proportionality for this measure because that will translate into a different number of actual participation opportunities depending on the size of a school. (TT 1877:2-8).

142. Dr. Lopiano used the athletic participation numbers set forth in UC Davis' EADA Reports for each year from 1995-1996 through 2004-2005 to calculate the participation gap between male and female students. (JX 1-9.) She then identified the number of actual female participation opportunities that UC Davis would have had to have added to reach gender equity in terms of intercollegiate participation opportunities, as follows:

Year Female Female Female % Female Male Add'l

Enroll- Enroll- Athlete % Disparity Athletes Athletes Female ment ment % # # Athletes needed #

1995-1996 9,352 52% 32% -20% 211 441 267

1996-1997 10,054 53% 42% -11% 348 472 184

1997-1998 10,118 54% 42.7% -11.3% 383 513 219

1998-1999 10,596 55% 47.8% -7.2% 426 466 144

1999-2000 10,446 56.6% 50.5% -6.1% 424 416 119

2000-2001 11,783 56% 49.2% -6.8% 407 420 128

2001-2002 12,494 56.2% 47.3% -8.9% 361 403 156

2002-2003 11,331 56.4% 49.2% -7.2% 389 401 130

2003-2004 11,660 55.9% 50.1% -5.8% 373 371 97

2004-2005 12,834 55.34% 50.25% -6.1% 363 368 101

(JX 84A; TT 823:14-830:17.)

2. History and Continuing Practice of Program Expansion

143. A school must have both a history and a continuing practice of intercollegiate athletics program expansion for women if it wants to claim program expansion under Title IX. (TT 830:18-831:40; 832:20-833:18; 1877:18-1878:12.)

144. The number of intercollegiate participation opportunities added is determinative of whether a school has engaged in program expansion for female students, not the number of teams added. (TT 788:6-11; 1884:10-13.)

145. Roster management of men's teams is not program expansion for female students. (TT 858:20-859:8; 1901:16-21.)

146. If a school eliminates participation opportunities for female students, it must replace those opportunities and continue to expand. (TT 834:13-835:10; 1898:14-24.)

147. Despite agreeing upon these general principles, plaintiffs' expert, Dr. Lopiano, and defendants' expert, Dr. Grant, offered conflicting testimony on the issue of whether UC Davis adequately expanded the women's intercollegiate athletic program.

148. Dr. Lopiano testified that UC Davis did not have a continuing practice of program expansion because it dropped female participation opportunities between 1998 and 2005 without replacing them. (TT 834:18-835:10; 837:5-840:21; 842:10-15).

149. Dr. Lopiano opined that UC Davis had not adequately expanded participation opportunities for women because (1) UC Davis did not add a woman's team for nine years; and (2) over those nine years, there was an overall net decline in actual participation opportunities for female student-athletes. (TT 837:5-19; 846:16-847:8; 854:15-856:6).

150. Dr. Grant testified that an institution must expand every 2-3 years to rely on Prong Two. (TT 1896:9-25). She opined, however, that despite UC Davis' net loss in participation opportunities between 1998 and 2005, defendants adequately expanded their women's program.

151. She testified that UC Davis should be given a nine-year "credit" for the three teams added in 1996, as though UC Davis had added one every 2-3 years. (TT 1908:5-9; 1903:10-13).

152. Dr. Grant also testified that the decline in participation opportunities from 1998-99 to 2001-02 was due to cutting two JV teams for legitimate reasons and normal fluctuations in the size of women's teams that, in fact, fluctuated upwards in 2002-03 and 2005-2006. (TT 1905:15-1907:8; 1933:22-1934:5; JX 89.)

153. She asserted that the fluctuation in women's athletic participation rates under the circumstances, where the percentage of women undergraduates enrolled at UC Davis was growing, did not indicate an end to progress by UC Davis toward gender equality. (TT 1835:19-1844:10.)

154. Neither plaintiffs' expert nor defendants' expert testified regarding how to measure or determine a "normal" fluctuation in athletic participation opportunities. At most, Dr. Lopiano testified that if a school was experiencing "normal" fluctuations in participation opportunities, one would see fluctuations going up and down over time, rather than a steady decrease in participation opportunities. (TT 832:20-834:6.) However, there was no evidence regarding how steep such fluctuations may be or over what period of time one should see such fluctuations rise and fall.

III. Participation of Women in Wrestling at UC Davis

155. The court notes that it has previously dismissed as time barred all claims, under both Title IX and 42 U.S.C. § 1983, arising from the elimination of wrestling opportunities in 2000-2001 and for implementation of a policy that required them to wrestle-off against men in 2001 (the "wrestle-off policy"). (Mem. & Order [Docket #226], filed Oct. 18, 2007; Mem. & Order [Docket #509], filed Dec. 8, 2010.)

156. The court clarified that the only viable claims were based upon the more general claims that defendants violated their rights by failing to provide equal accommodation of athletics to women each and every day plaintiffs were students at UC Davis. (Mem. & Order [Docket #509], filed Dec. 8, 2010; Mem. & Order [Docket #594], filed May 18, 2011.)

157. However, the court noted that evidence relating to the elimination of wrestling and the implementation of the wrestle-off policy could be relevant to plaintiffs' broader claims. Despite repeated clarifications regarding the court's prior rulings, during the course of trial, plaintiffs' counsel again erroneously asserted that none of their Title IX claims had been dismissed as untimely. (See Mem. & Order [Docket #594], filed May 18, 2011.)

158. Further, plaintiffs' evidence at trial consisted almost entirely of testimony and exhibits relating to the alleged elimination of women's wrestling and implementation of the wrestle-off policy.

159. Moreover, in their proposed conclusions of law, plaintiffs for the first time assert that UC Davis violated the contact sports provision of the 1979 Policy Interpretation by eliminating and/or failing to provide varsity wrestling opportunities for women.*fn18

160. Accordingly, the court makes the following findings of fact.

A. History of Female Participation in Wrestling at UC Davis

161. A handful of women participated in wrestling at UC Davis for many years before the controversy at the heart of this dispute arose.

162. UC Davis also sponsored a women's division in its annual Aggie Open wrestling tournament. (Pretrial Order ¶ 28.)

163. "Open" wrestling tournaments allow all persons who wish to participate, as long as they satisfy tournament qualifications, such as age. (Id. ¶ 29.)

164. Afsoon Roshanzamir (Afsoon "Johnston" after marriage), a talented female athlete, began practicing with the varsity wrestling program in the early 1990's in preparation for international competition. (Johnston Dep. at 30:20-24; 31:3-32:12; 36:13-24; 37:25-38:6; 39:16-20).

165. Johnston started UC Davis as a freshmen in 1990 and inquired with Bob Brooks ("Brooks"), then head wrestling coach of the men's intercollegiate program. (Johnston Dep. at 30:14-15; 31:5-11.)

166. Johnston testified that she introduced herself, informed Brooks that she was pursuing wrestling on the national level, and stated that she wanted to be a part of the UC Davis team. Specifically, she testified that "if [she] could have a corner of the mat and a workout partner, that [she] would be happy." (Johnston Dep. at 31:14-18.)

167. Johnston practiced and sparred with men, even if they were above her weight class. (Johnston Dep. at 65:1-12; Collier Dep. at 13:14-24 (testifying that he sparred with Johnston when she was 118 pounds and he was 134 pounds).) Specifically, during her freshman year, she practiced with the starting 119 pound male wrestler. (Johnston Dep. at 65:1-12.)

168. Johnston didn't expect to be in the starting line-up, but expected that she would be required to compete against either men or women in open tournaments. (Johnston Dep. at 69:19-25.)

169. During her freshman or sophomore year, Johnston competed unofficially in a dual meet against a female wrestler at Chico State; however, their points did not go against the team score. (Johnston Dep. at 34:15-25.) She wore a UC Davis singlet while competing. (Johnston Dep. at 34:15-25.)

170. Johnston also competed in a men's tournament while she was a student at UC Davis. (Johnston Dep. at 35:1-22.) She also wore a UC Davis singlet in this match. (Johnston Dep. at 35:18-22.) 171. Johnston was provided with locker room and training services and received equal coaching opportunities as the men. (Johnston Dep. at 36:13-24.)

172. Johnston was on the UC Davis wrestling roster and participation lists in the 1992-1993 school year and the 1993-1994 school year. (Pretrial Order ¶ 30.)

173. However, Johnston testified that she only considered herself as being on the UC Davis team/squad her freshman year, 1990-1991. After that, she trained with the UC Davis team, but considered herself only to be a an "unofficial member" of the team. (Johnston Dep. at 42:3-12.) Johnston did not take any steps to form a separate women's varsity wrestling team. (Johnston Dep. at 52:4-7.)

174. Despite being an "unofficial member" of the team, Johnston received locker room and training services and competed in open tournaments, such as the Aggie Open. (Johnston Dep. at 42:16-43:4.)

175. During Johnston's senior year, she practiced and trained with Jennifer Martin ("Martin"), a graduate student at UC Davis. (Johnston Dep. at 43:21-24.)

176. No other female undergraduate students participated in wrestling at Davis during the five years that Johnston was a UC Davis student. (Johnston Dep. at 41:5-17.)

177. After Johnston graduated in 1995, she and Martin continued to workout with the UC Davis wrestling team and received coaching by the head coach of the men's intercollegiate program, Michael Burch ("Burch"), as well as assistant coaches. (Johnston Dep. at 44:9-21.)

178. Stacey Massola was on the UC Davis wrestling roster and participation lists in the 1997-1998 school year. (Pretrial Order ¶ 31.)

179. Former plaintiff Nancy Chiang ("Chiang") was on the wrestling roster and participation lists in the 1998-1999, 1999-2000, and the 2000-2001 school year. Chiang participated in two Aggie Open wrestling tournaments during the time she attended UC Davis. (Pretrial Order ¶ 32.)

180. Abby Schwartzburg ("Schwartzburg") was on the wrestling roster and participation lists in the 1999-2000 school year. (Pretrial Order ¶ 33.)

181. Alexis Bell was on wrestling rosters in the 2000-2001 school year. (Id. ¶ 34.)

182. Samantha Reinis ("Reinis") was on the wrestling roster and participation lists for the 1997-1998 and the 1998-1999 school years. Reinis suffered an injury and did not compete during the 1999-2000 and the 2000-2001 school year, although she did continue to attend practices during that time. (Id. ¶ 35.)

183. Women were listed on the wrestling team squad, participation, or rosters lists for the 1992-1993, 1993-1994, 1997-1998, 1998-1999, 1999-2000, and 2000-2001 school years. (Id. ¶ 36.)

184. Women wrestlers were counted on the EADA reports as intercollegiate/varsity wrestling athletes for the following academic years: 1997-1998, 1998-1999, and ...


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