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What’s different about the lawsuit seeking to restore men’s gymnastics at the U of M

The suit against the U claims male student-athletes are being discriminated against under Title IX, the law prohibiting sex-based discrimination in education programs receiving federal money.

Minnesota Golden Gophers gymnast Shane Wiskus competing in the parallel bars event at Maturi Sports Pavillion.
Minnesota Golden Gophers gymnast Shane Wiskus competing in a parallel bars event at Maturi Sports Pavillion.
Mandatory Credit: David Berding-USA TODAY Sports

This is how these things often go: After a university or college announces it’s dropping several non revenue-generating sports, boosters and athletes complain, and eventually an aggrieved athlete (or several) files a lawsuit. Then, like magic, the university reverses course, restoring some or all of the programs rather than go to court.

That’s what happened six months ago at Stanford, which planned to eliminate 11 sports  because of COVID-19 revenue shortfalls. Athletes from five of the endangered women’s sports sued under Title IX, the law prohibiting sex-based discrimination in education programs receiving federal money. The suit claimed athletic opportunities at Stanford already disproportionately benefited men, and the cuts would further widen the gap. Another suit accused the university of fraud and breach of contract for not telling recruits they planned to drop the sports. 

Within a week, Stanford announced all 11 sports would remain, citing improved finances and more robust fund-raising potential. The first lawsuit was settled in August, with Stanford agreeing to review its programs to ensure Title IX compliance and make that plan public by next Oct. 1.

Which brings us to the doings in Dinkytown.

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Thirteen months ago, the University of Minnesota Board of Regents voted to eliminate men’s gymnastics, indoor track and field and tennis while reducing some women’s roster positions. The given reasons were twofold: To save $1.6 million annually and to address Title IX compliance issues. 

Though gymnastics and tennis boosters quickly raised $3 million, augmenting endowments that partially fund scholarships, the U repeatedly declined to reconsider the decision. Finally, the inevitable: a lawsuit was filed by gymnast Evan Ng on Oct. 29 in U.S. District Court. 

The suit claims the U had no compliance problem and didn’t need to cut men’s gymnastics. The U was served with the suit last week and has 21 days to respond, though it could ask for more time. At stake is the U’s traditional broad-based athletics program; it sponsored 25 sports before the cuts, 12 for men and 13 for women. 

Whether the suit spurs the Regents to change their minds remains to be seen. The cuts haven’t generated as much outrage outside the affected sports as seen in other parts of the country, and the U clearly wants to move on. 

But there’s one big difference between the Stanford suit and this one: the way it applies Title IX. 

Basically, the suit against the U claims male student-athletes, not the women, are the ones being discriminated against — a rarer interpretation but permissible under the law, according to Erin E. Buzuvis, a law professor and associate dean at Western New England University who specializes in gender issues in education and athletics.

Caleb Trotter, an attorney representing Ng for the Pacific Legal Foundation, said he plans to seek a temporary injunction to reinstate men’s gymnastics while the case is being heard. (Trotter said a favorable decision couldn’t come fast enough for the Gophers to compete in 2022 since the season begins in January.) 

U spokesman Jake Ricker said the school had no further comment beyond a statement it released Oct. 29, which said the suit “isn’t just about the university. It is a broad challenge to how Title IX has been implemented by the U.S. government across colleges and universities nationwide to achieve equal opportunity.”  

The PLF is a donor-funded, libertarian firm. Attorneys work pro bono, not charging clients. Three years ago, it represented high school boys in Minnesota and South Dakota seeking to join girls-only competitive dance teams. Only one case went to court, and the firm ultimately prevailed in both instances.

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“For a long time, we’ve been involved with issues of equal opportunity,” Trotter said. “We’ve had a number of cases through the years challenging high schools or high school associations or universities where stated attempts to comply with Title IX or address instances of discrimination, they’re actually explicitly engaging in that very discrimination. That’s how we view this case.” 

The complaint centers on the U’s use of proportionality to comply with Title IX. Proportionality, Buzuvis said, is the first of three “prongs” used to judge compliance. It means the percentage of athletic opportunities at your school must approximate the gender makeup of your student body. (The law doesn’t require an exact 1:1 match.) 

So if you’ve got 50 percent men and 50 percent women, and the men have 60 percent of the opportunities, you’ve got a problem. It’s also a problem if women have 60 percent of the opportunities, though that’s rare, Buzuvis said. (Calculating “opportunities” isn’t as simple as counting male and female athletes. If the same distance runner competes in cross country, indoor and outdoor track, Buzuvis said, it counts as three opportunities.) 

Athletic director Mark Coyle has said the cuts were made to better align U athletics with the 2019-20 student population, roughly 54 percent female and 46 percent male. 

“Our position in this lawsuit is that Title IX does not require that, first, that the statute actually prohibits sex discrimination,” Trotter said. “And by creating such a sex-based quota, they are in fact engaging in sex-based discrimination.” 

Trotter also claims the U violated Ng’s rights under the Equal Protection Clause of the 14th Amendment, which also prohibits discrimination based on gender. “I think the primary thing that would be of interest is to really get into and hear from athletic director Coyle,” Trotter said. “What was the mindset and the thinking going on behind the scenes for these decisions?”

Buzuvis said Trotter’s argument isn’t unique. “It’s definitely been litigated in many other cases where men’s teams try to challenge their team’s elimination by bringing challenges, either under Title IX or to Title IX,” she said.

“Challenges to Title IX have not succeeded. Challenges under Title IX, it just depends how the numbers work. It’s plausible that if they’ve over-cut, then they might have a compliance problem, and might have to restore a team in order to equalize compliance.”

Even if the court sides with Ng, Buzuvis said that wouldn’t necessarily save men’s gymnastics. The court could let the U choose how to resolve any opportunity imbalance. “A team that small, it’s hard to imagine that would make a big swing in the percentages either way,” she said. “Maybe they just trim some women’s rosters a little more to make the numbers slightly better. It doesn’t necessarily lead to restoring the team.”

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Trotter conceded that as well. “This decision, if we win, would only prohibit them from making sex-based decisions, which they have so clearly done in these instances,” he said.

Some boosters believe Coyle considered reducing the U’s athletic offerings for some time, citing termination language inserted in certain coaches’ contracts covering the possible elimination of their sports. Then, they claim, he used the pandemic and Title IX as excuses to do it. “It is not uncommon for schools to blame Title IX when they cut teams,” Buzuvis said, adding she wasn’t specifically talking about the U.

Last week, the U announced it amended football coach P.J. Fleck’s seven-year contract, extending it through 2028 and bumping his annual pay to $5 million beginning next season. The agreement, which awaits Regents approval, puts an additional $1 million in Fleck’s bank account through 2026, when the original deal was supposed to expire more than half the annual savings from cutting the three sports. 

That afternoon, former men’s gymnastics coach Mike Burns began cleaning out his office in Cooke Hall.