Letter to Editor About New OU AD

An open letter to Jim Schaus, the new athletic director at Ohio University, from alumbus Herb Fitzer:

Dear Mr. Schaus:

I read with interest the article in the Columbus Dispatch today about you taking the helm of the Ohio University athletic program. The part of the story about your aging parents struck a chord with me--my parents are aging as well--and I feel a sort of kinship with you, as do thousands of people with aging parents. I feel that there is a parallel to be drawn about aging parents and the stewardship of OU athletics.

You speaking lovingly about your concern for your mother alone with your ailing father--and how your move to Athens will bring you closer so you may help out with his care if need be--and I pray, as I pray daily for my own father's health that you never have to make an uncomfortable decision regarding the care of your father. You as am I, are your parent's legacy, they, as are my parents, are your history and tradition. You are to be commended for your concern and care for the folks that made you who you are today.

Ohio University also has a history and your legacy at your new position will be your stewardship of the athletic program. The decisions that you make at Ohio University, similar to the decisions that you make about your parent's health care, will profoundly affect the future of many young people who have the desire to pursue both an athletic and academic career at Ohio University. Where will you spend money--how will you spend money? And,how can you best use the resources of Ohio University and the taxpayers of Ohio in the most responsible and judicious manner?

There is no real need to delve into the storied tradition of the "minor" or "orphan" sports offered at Ohio University. There have been a multitude of All-Americans, Olympians and honored alumni from those sports. Ohio University's legacy in these sports is people like Stan Huntsman and Elmore Banton--who have made their mark both at Ohio University and away from their alma mater. The question for you, Mr. Schaus is whether the legacy of the student/athletes in these sports is relevant to the future of Ohio University? I know that you do not have a crystal ball, but how many Stan Huntsmans and Elmore Bantons, or maybe even people more outstanding than them, have been banished from your campus or will never visit your campus because you no longer offer men's track and field or swimming?

How many times in your life did your parents do without a "night out" or eat hamburger in order to allocate funds into something that you needed? Or did they have steak and tell you that the sports equipment or lab fee that you needed for school was someone else's problem? I will bet that it was the former, not the latter. So, my question to you Mr. Schaus, is this, will your stewardship of Ohio University be most similar to the loving, thoughtful way that you handle the care of your parents or will it be the "my way or the highway" style of your predecessor? The taxpayers of Ohio are waiting to see if Ohio University got a real leader or just another athletic director who will take care of football and basketball and continue the wasteful, wonton ways of Kirby Holcutt?

Sincerely, Herb Fitzer

OU has New AD. Is He Pro-Track?

Ohio names Wichita State AD to head its athletics department

From the Athens News

April 7, 2008

Ohio University named a new athletics director this afternoon (Monday), hiring a man who held the same position for the past nine years at Wichita State University in Kansas. President Roderick J. McDavis announced the hiring of Jim Schaus, 47, as director of athletics at a press conference in the Convocation Center.

Schaus replaces Kirby Hocutt, who took the AD job at the University of Miami in Florida.

Since assuming control of the department July 1, 1999, according to an OU Athletics news release, “Schaus has reached the goal of making WSU one of the most competitive programs in the Missouri Valley Conference, a fact highlighted by WSU's four-straight MVC all-sports trophies. The four-straight awards were highlighted by a WSU record seven conference titles in 2005-06, as well as 20 Valley team titles in the last four years.”

The release continued in this vein, stating, “In addition, all Wichita State sports that sell tickets were ranked nationally in attendance during the past two years, which is undoubtedly a direct result of Schaus' efforts to upgrade institutional athletics facilities.”

In 2007, the release said, Wichita State won MVC team titles in women's cross country, women's indoor track and field, women's outdoor track and field, women's tennis and baseball. Nationally, men's basketball rose to a #8 national ranking, while the baseball team made its 25th NCAA Tournament appearance, playing host to an NCAA Super Regional for the first time since the format was restructured. Another highlight was the women's tennis team's first national ranking last season, while finishing the season 27-3, the most wins in school history.

“In order to create a solid foundation in his first year,” according to the release, “Schaus restructured the WSU athletics department in an effort to create a business-like atmosphere, and in the process hired five head coaches and five new administrators.” The department also completed the $7.8 million Eck Stadium-Home of Tyler Field project during his first year.

Schaus came to WSU with substantial background in athletics administration, with stints in collegiate athletics at Oregon, Cincinnati, Texas-El Paso and Northern Illinois.

In 1987, Schaus received his master's degree in athletics administration from West Virginia. In 1983, he earned his bachelor's degree from Purdue.

Hocutt is Out!

As I predicted last year, Kirby Hocutt, the Athletic Director at OU, used his position as a stepping stone to get a better job outside of Appalachia. He wanted to improve the football and basketball teams at the university and student's expense to amplify his resume. Now, apparently he is seen as a viable option at a major university athletic department where their basketball and football teams are central - most likely the University of Miami.

With Hocutt on his way out the door, it is absolutely imperative that the Ohio University community, namely the student body, demand from President McDavis that Hocutt's successor will bring back Ohio track. This can be achieved through letters to the editors, letters to the OU administration, and most importantly resolutions from Student Senate and Graduate Student Senate.

Articles:
http://www.thepost.ohiou.edu/Articles/News/2008/02/07/22766/

Email President McDavis at mcdavis@ohio.edu
Email the Board of Trustees at trustees@ohio.edu
Email the President of Student Senate at senate@ohio.edu
Email the Student Senate listserv at everyone@mystudentsenate.com
Email the President of Graduate Student Senate at gss@ohio.edu
Email the Graduate Student Senate listserv at gss-l@ouvaxa.cats.ohiou.edu
Email AD Kirby Hocutt to tell him that you are glad that he is leaving at hocutt@ohio.edu

New RunOhio Editorial On OU Track

KEEPING TRACK

Rod O'Donnell
January 2008
RunOhio

Ohio University Athletic Department's Worst Decision
January 25th will mark the first anniversary of one of the worst decisions that the Ohio University Athletic Department ever made - dropping the men's track and field program.

As I biked through the beautiful Ohio campus last summer and passed the track complex, a feeling of sadness and anger overcame me; sadness because the experience of thousands who were directly or indirectly involved with the program will never be duplicated by young men again, and sadness because, when a program is dropped, the acknowledgment of its very existence is lost. There is no mention of teams at Marshall or West Virginia on their respective school websites. As the years go by and those who competed are no longer here, the teams will be forgotten. In a generation or two, all victories, rewards, league championships, and All-Americans will be forgotten. Future generations will not even know that the sport existed unless they go into the archives. This is unfair to the men like Stan Huntsman, Elmore Banton, Les Carney, and many others who worked tirelessly as coaches or athletes to make Ohio University and its track and field program one of the best in America.

The pride of athletic alumni is strong. In a recent article in the Ohio publication, OHIO TODAY, former members of the baseball team met to remember and honor their late coach, Bob Wren, who symbolized everything good about Bobcat athletics. One alum put it this way, "When Coach Wren was around the golf outing, he used to say, 'You honor each other by being here.'" Unfortunately, former track team members will not have such opportunities. Young men throughout southern Ohio and the region will not experience the feeling of such pride.

In conflict with the feeling of sadness that I felt on that bike trip, I also felt a sense of anger towards those who made this unfortunate and devastating decision. The uncaring administrators who made the final call did not see the far- reaching consequences of their actions. This writer in a recent phone call from the university concerning fund raising repeated an example of a consequence of this action. In a calm, professional manner, I simply stated that I would never give another dime to Ohio University, unless the men's track program was reinstated. I hope others will join me in this action.

Sadly, as the years go by and the emotions soften, I fear that many will allow the memories to fade and their actions diminish. I am certain that this is exactly what the "executive branch" is counting on. Unfortunately, this trend has occurred at some schools that have experienced the loss of their programs.

The National Federation of State High School Associations recently released information concerning the number of participants in high school sports. According to this group, outdoor track has shown a six-year INCREASE of participants of 10.2%, with 544,188 boys taking part. According to the NFHS boy's track and field ranks third, behind football and basketball, in the number of student athletes participating in a high school sport. Also, there are more high schools that offer boy's track and field than football. Wouldn't you think that University administrators would reevaluate their misguided decision as they deny opportunities to a sport that spans all levels of diversity at state universities?

In closing, I would like to point out another example of the financial impact of dropping a sport. According to Bob Parks, the ultra successful former coach at Eastern Michigan University, the track team at Western Michigan, where he served as an assistant, had a roster of 100 young men, with 90% paying for their educations. That would be nearly one million dollars by today's standards. Ohio may not have had 100 on their roster, due to another bad idea, roster management, but the majority of those on their roster were paying for their tuition, room, board, and books. Many of these athletes would not have attended Ohio if it had not been for the track program.

If you care about our sport and its future, don't let the fight to bring back track and field at Ohio University, Bowling Green State University, University of Toledo, Western Michigan University, Ball State University, Marshall University, West Virginia University, or any other institution, end after the initial emotional reaction occurs. Track and Field, "The Mother of All Sports," has been in existence for thousands of years. Don't let poor decisions of a few individuals extinguish the flame.

Yours in track,

Rod O'Donnell

Editor's note: Rod O'Donnell has served as the head cross- country coach and track and field coach at both Caldwell and Hudson High Schools. He has also led teams from Kent State, Marshall University, and Rio Grande College. In 13 years of coaching high school cross-country, Rod has coached seven District Championship teams, and four Regional Champion teams. He has had eight State Meet appearances where his teams have placed 14th, 8th, 7th, 5th, 10th, 2,nd with two first place finishes. In addition, one of his runners, Wesley Smith was the 2002 State Champion and Footlocker runner-up. While at Hudson, Coach O'Donnell has had 17 State Meet qualifiers as well as the State Meet Champion in both the 3200 M. and 1600 M.

While at Kent State, he was named MAC Coach of the Year twice. Rod had 27 NCAA qualifiers in track and cross-country and 11 All-Americans. At Marshall, Rod was also named Coach of the Year twice in the Southern Conference. His teams had 25 Conference Champions and three NCAA qualifiers. He started the women's cross-country program at Marshall, in addition to starting the cross-country program at Caldwell High School in 1971. In 1973, his team won the State Championship and had a dual record for three years of 38-0. Overall, Coach O'Donnell has a high school dual record in track of 71-21 and 81-6 in cross-country.

Rod is always willing to help others in the field, and he has written many articles and has spoken at many clinics, encouraging others to given back to the sport.

Editor's note: Articles on Ohio University and other Mid American Conference universities dropping Men's Track and Field:

Bringing Back OHIO Track web site: http://bringin gbackohiotrack.blogspot.com

Help Save Track and Field in the MAC http://www.runohio.com/news/03-14- 07Ohio_U.html

Ohio University Men's Track and Field http://www.runohio.com/news/03-12- 07Ohio_U_Track.html

Track & Field coaches, athletes and friends Please get involved to SAVE TRACK & FIELD - http://www.runohio.com/news/01-31- 07_Save_track.html

Ohio University the latest to Drop Men's Track and Field http://www.runohio.com/news/01-26-07.html

Keeping Track - http://www.runohio.com/news/03-30- 07Keeping_track7.html

Keeping Track - http://www.runohio.com/news/10-23- 06Keeping_track.html

Will Ohio Track and Field be Saved? http://www.runohio.com/news/05-09-07-OU.html

Bringing Back Ohio Track Billboard on Rt. 33 in Athens

The community of student-athletes, alumni, coaches, former coaches, family members, and Track fans came together to send a strong, public message to the Ohio University administration. The message is on a 16' x 8' billboard along Rt. 33 in Athens, Ohio.


Note: If anyone has taken a photo of the billboard, please email it to one of us. Thanks.

Letter to Post

Your Turn: OU student-athletes are ‘last to be informed, first to be ignored’

Published Thursday, October 25, 2007.

We were amused to read that the editors of The Post have declared the OU sports cut saga to be “Done. Ended. Finished. Kaput.” Posties, it seems you have missed most of the story about OU’s sports cuts since day one.

First of all, our lawsuit against Ohio University and the U.S. Department of Education has yet to be filed. Our attorneys from EIA (Equity in Athletics) are currently working on the JMU (James Madison University) lawsuit in the 4th District Circuit Court in Virginia. Our lawsuit will be filed sometime later this year in the 6th District Circuit Court (Ohio and Michigan).

Concerning the Office of Civil Rights’ recent rejection of the complaints filed by the cut men’s teams — we harbored little hope that these would succeed. It was primarily a cost-free avenue for us to let the U.S. Dept. of Education know that there was a problem with the proportionality prong of the three-part test of Title IX compliance and that it needs fixed.

But what is most disturbing is that most people (including the media) seem to have no clue that the good intentions of the Title IX proportionality prong are being perverted by nefarious collegiate athletic administrators as a method of “strategically reallocating” funds into revenue-producing sports. More specifically, men’s Olympic sports - which typically produce little revenue - are frequently being cut as camouflage to hide even more aggressive cuts to women’s athletics. So long as more male sports and participants are cut than female, it seems to the general public that men’s athletics are taking the greater loss to comply with Title IX. This disingenuous little ploy has developed into an alarming national trend that NCAA President, Dr. Myles Brand, is fully aware of. In a recent edition of ESPN’s Outside The Lines, he expressed his dismay with universities that act in such manner. Coincidence or not, his interview includes a clip of the Ohio football team in action. The ESPN pod cast of this OTL segment may be viewed at the following website: http://sports.espn.go.com/broadband/ivp/index?id=2914881

The Ohio University sports cuts appear to be a textbook example of this trend. From public records we obtained from the OU athletic department, it appears that the OU saved over $450,000 by cutting one women’s sport, but saved less than $20,000 by cutting three men’s sports. The net result is a loss of about 2 percent of the overall OU athletic department budget for women’s athletics. In terms of athletic financial assistance for student-athletes, women lost 12 full scholarships (all from lacrosse) and men lost 1.8 scholarships (all from Men’s Swimming & Diving). This is a net loss of over $200,000 annually in scholarship money dedicated for women only. And of the four coaches who lost their jobs, two full-time and two GAs, three were women - two full-time coaches and one GA. Does this sound like a victory for Title IX? Has anyone at The Post contacted Donna Lopiano of the Women’s Sports Foundation to ask her opinion of OU’s sports cuts? Perhaps The Post editors should also check to see if there are any OCR complaints filed by female athletes at OU!

Perhaps the worst part is that the OU athletic department’s financial woes will continue. The department has incurred an annual debt of around $1.2 million each of the last few years. The total amount saved through the sports cut is less than half of this amount annually. The athletic department will most likely continue to incur annual debts of around $700,000 - $800,000. “Tough decisions” needed to be made — unfortunately, they weren’t. In May of 2006, Lamar Daniel assessed the OU athletic department for Title IX compliance. OU Athletic Director Kirby Hocutt referred to Mr. Daniels as “an expert, a man who spent over twenty years in the Office of Civil Rights,” but Mr. Daniel’s recommendations as to which sports to cut in order to save money and comply with Title IX weren’t followed. That lack of courage leaves the department begging for more student fee money and forces the football players to suffer injuries at the hands of BCS teams while playing more “money games” to keep the department afloat.

It’s unfortunate that student-athletes are just pawns in the collegiate athletics game, last to be informed, first to be ignored. Their input means little to college presidents and athletic administrators whom have abandoned an educational model for leading their institutions and replaced it with a business model. But it is for the student-athletes’ sake that our struggle will continue well into the future. In the words of a good friend, “Fighting for what’s right is never wrong.”

Done? Ended? Finished? Kaput? I think not!

Patrick Eaton writes from Uniontown, Ohio.

XC Team Rebuttal Letter to the Editor

BTW: All of these "rebuttals" are to the Post editorial

Cross country team speaks up about administration’s sports cuts

Published Thursday, September 27, 2007.

Ignorance. Naivety. Robotic. Unprofessional. Those are just a few words that come to mind after reading Tuesday’s editorial in The Post. One of the golden rules of journalism is to report the entire story. However, over the past eight months, The Post and its writers have repeatedly been nothing but a voice/puppet for the administration. Where has investigative journalism gone? You would think that the students who are being educated at a school so well-respected for its journalism program would have the urge to question some of the decisions made by the Ohio University administration. Keep in mind that this is the same administration that employed someone responsible for embezzling $31,000 while simultaneously explaining OU’s budgetary problems to its athletes. Instead, The Post, much like the administration, would rather sweep the whole ordeal under the proverbial rug and act as though it never happened.

Not only have The Post writers merely reported the “facts” given to them by the administration, but they, along with the suits in the Convo, have failed to grasp the intricacies of how the cuts would affect those athletes who still remain here; that is something that we runners have grown accustomed to. We were told that our experience would improve, but we continue to wonder when we will be treated like real Division I athletes.

Too many people have claimed that they understand the reasons behind the decisions made, but in reality they know very little. In light of this, what gives The Post the right to tell us when to end our fight or when to tell us to stop being bitter?
The OCR’s (Office for Civil Rights) initial finding does not put a close to this issue. Appeals will be filed and new information that has been discovered since the initial complaint was filed will be unveiled. There is also an ongoing investigation that OU did violate Title IX and discriminated against women; that OCR complaint is still open.

This is an issue that we will not let die. You will continue to see us around campus wearing our t-shirts, and we will continue to fight to get our track team back. The mentality of a distance runner is unwavering and undeterred by small setbacks; we never give up. Our efforts to reinstate the men’s program will continue long after Mr. McDavis and Mr. Hocutt have left Ohio; we just hope that is sooner rather than later.

Trials of Miles, Miles of Trials.

More Rebuttal Points from Women Alumni on the Current Situation

* The discrimination occurred during the summer class sessions of June and July, 2007 at Ohio University as well as during the summer class sessions of 2006.

* Ohio University Athletic Department is the discriminating party, which includes Kirby Hocutt (AD), Amy Dean (Senior Assoc. AD, and Robert Andrey (Assoc. AD of Bus. Operations)

* Allowing a head count bias to exist for the ‘major’ or ‘most important sports’ (i.e. – football, basketball, and volleyball) for summer school athletic aid has resulted in a violation 34 C.F.R. Section 106.37 (c). Male varsity athletes have received a disproportionately higher amount of summer school athletic aid than female varsity athletes at Ohio University.

* Witnesses would include women’s student athletes in ‘minor’ sports at Ohio University for the 2007-08 year.

* We believe the discrimination is based on sex because the the Ohio University Athletic Dept. does not want to pay for summer school athletic aid for a significant number of female athletes – but is eager to pay for the entire football team.

Remedy: Eliminate the head count bias created by football that allows far more access to summer school athletic aid for male athletes than for female athletes. Also: require the Ohio Athletic Department to have a representative speak to each women’s athletic team about the availability of summer school opportunities each spring.

Rebuttal Letter from Track/CC Alumni

I disagree with a recent letter concerning what ails the OU Athletic Department.
What ails OU Athletics is symptomatic of what ails most Division I collegiate athletic departments, not to mention our country as a whole these days. And that is the sense of entitlement and ‘I deserve better’ attitude that so many coaches, administrators, and some athletic supporters have. The common denominator in all this is money. It’s always ‘show me the money’ or ‘we need more money’ to be successful. And if success comes, it’s always ‘we need more money to continue being successful’. Where are the moral limits in such spending? It seems to me that the OU Athletic Department has become a run-away freight train fueled by special interest.

The bottom line is that Ohio’s sports cuts decision has significantly decreased the opportunity for local student-athletes and minorities to receive educational value and potentially earn scholarship money to attend college via sports like track and field. Track and field is the third most popular sport in Ohio (and the nation) in terms of participation levels. And anyone who read the sports pages of their local papers during the last few months probably noticed numerous photos and articles of the diverse group of students participating as track and field athletes. During the past five years there have been sixteen athletes from local schools (within half an hour drive) on the OU Track & Field team, and five of these students were from Athens County and received athletic-scholarship money. That’s as much as all the other sport teams combined! Who would want that kind of opportunity to be denied of the local students in future generations? Not only are many of the track athletes of local origin, but some of the coaches are as well. Of the two current part-time coaches for the women’s (and former men’s) track team one is a graduate of Vinton County High School, and the other coach serves as a junior high math teacher for Trimble Local School District. Both of these coaches are paid around $10,000 per year (less than the $12,000 bonus paid to the Head Football Coach for winning the MAC East Division!) but yet do a great job serving as “full-time” coaches.

Perhaps it’s time to ‘down-size’ or ‘right-size’ the men’s football and basketball teams to save money and produce success! Did any OU administrators consider that idea? A coach or athlete who cares more about money than about the love of the game and community will never be truly successful. Big-shot coaches and administrators now-a-days have no vested interest in their local communities. They all anticipate moving on to higher paying jobs at other universities the first chance they get, or threatening to leave their school if they don’t get a hefty raise for a good season. Playing the ‘money game’ in regards to retaining quality coaches is a game that OU is never going to win. The funds are going to be inadequate no matter how many sports you cut and the demographics to substantially increase those funds simply aren’t there. There are great coaches out there who aren’t expensive, but it takes intelligence and skill to find them.

In other words, not big-shots, just coaches with great knowledge of the fundamentals of their sport and who have had success with limited resources at the NCAA Division II or III, or even high school level. More importantly is that these coaches provide educational value to their athletes and don’t feel ‘trapped’ in Athens or at Ohio University. They need to truly love the local communities, the people in them, and the school, not just say that they do - until the next better job comes along!

Post: OU Athletic funding for football tops other MAC schools

YourTurn: OU Athletic funding for football tops other MAC schools

Published Thursday, August 9, 2007

I would like to disagree with the assertion that Ohio University athletics needs more money to attract quality athletes and coaches, presumably allowing the athletic department to rekindle the success it had during the 1960s.

Thanks to the Equity in Athletics Disclosure Act, all universities are now federally required to submit a yearly report of their athletic revenues and expenses for each sport offered by a university. The public can review this information at: http://ope.ed.gov/athletics/InstDetail.asp

According to this Web site OU spent $22,964 per male basketball athlete during the 2005-06 school year. This is more than what someone earning $11 an hour, working forty-hour weeks, makes in a year. The football team spent $10,117 per athlete for 2005-06. What’s remarkable is that these amounts do not include the students' athletic scholarships.

It also does not take into account their coaches’ salaries. It also does not take into account the salaries of athletic department administrators, academic compliance coordinators, athletic trainers or any other support staff such as secretarial, strength and conditioning, equipment, and facilities/grounds staff. Nor does it take into account the supplies and operating expenses the support staff used directly for athletics.

Although it is difficult to determine an exact amount on such a figure, it appears the yearly amount spent on a male basketball or football athlete at OU could be more than $50,000 — possibly more than $100,000.

And wouldn’t it be nice to go to Hawaii to compete, like the OU golf team did at the Kauai Invitational this past year? The EADA information also reveals that the OU women’s volleyball team’s operating expenses were almost twice the MAC average and that the operating expenses for Ohio Football during the 2005-06 school year were more than the operating expenses for the entire men’s sports program — six sports — offered at Central Michigan University. Ironically CMU was the team that beat OU for the MAC title last December.

Yet OU administrators had the audacity to cut a sport like men’s track and field, with yearly operating expenses of $491 per male athlete, so the athletes and coaches of these other teams could have more. Try telling that to track-and-field team member Eric Bildstein, who spent a year and a half rehabilitating for the 2007 track season after his Humvee hit a roadside bomb while he was in Iraq. Bildstein serves in the Marine reserves.

I would say that OU athletes in the major sports were already receiving a “high-quality student-athlete experience,” and if staying in less than superior quality hotels is the worst thing they ever experience in their lives they can consider themselves blessed!

Drew Frum is a former track athlete who writes from Youngstown, Ohio

ESPN Covers Title IX Problem, JMU

ESPN ran a short segment on the impact of Title IX on Olympic sports. The video covers JMU's situation, where Equity in Athletics is suing the university and U.S. Department of Education.

Click here to watch it.

ANews Letter from Captain Kemp

From the Athens News:

Letter: Local businessman should learn more about sports cuts before sounding off

Monday, July 9th, 2007

I was the very fortunate recipient of a copy of a recent letter to the editor that was published in The Athens NEWS.

It was written by long-time Athens resident and businessman John Wharton, on the Ohio athletic department cuts that have affected so many current students, as well as alumni, of our great Ohio University.

As a former student-athlete, and now NCAA track and field coach, I was appalled at Mr. Wharton's stance. For him to refer to the cuts as "tough but fair" reveals his lack of knowledge on the issue.

He stated that Ohio must concentrate its efforts on bettering athletic experience for the student-athletes that were retained, and that the funding should go to training and academic facilities, among other places.

What Mr. Wharton failed to mention is that over one million dollars was put into renovating all of these facilities over two years ago. They were already benefiting the student-athletes that lost their so-called better "experiences."

He spouts off nonsense about Title IX and aspirations of competing at an elite level.

Ask the women's lacrosse team, which no longer exists, how they feel about the Title IX compliance.

Ask the head coach of track and field if he feels that the meager $15,000 that was saved by cutting the men's track team will be enough to put the rest of the programs at Ohio onto that "elite level" about which Mr. Wharton thinks he's talking.

After looking at the facts surrounding this incident, it is obvious to those of us involved with this business that the people holding the axe at Ohio do not understand the term "elite."

The cutting of these sports is an absolute sham that was not well thought out, and is barely a temporary solution for a permanent problem. President McDavis, Mr. Hocutt, and now Mr. Wharton should all be ashamed of themselves for supporting such poor athletic administrative actions.

Mr. Wharton should speak with some of those affected by these cuts, and gain some knowledge on the issue, before jumping to the aid of the Ohio administration.

Then maybe he can print a retraction of his letter with an apology to the real Ohio community that can see these cuts for what they really represent: a futile attempt at being "tough but fair."

Justin A. Kempe (former OU track and field athlete)

Duke University

Durham, N.C.

EIA Lawsuit in Chronicle of Higher Education

June 12, 2007
Lawsuit Seeking to Overturn Title IX Rules Expanded to Include James Madison U.

An advocacy group called Equity in Athletics Inc. sued the U.S.
Department of Education in March, and last week it announced it would add James Madison University, its Board of Visitors, its president, and its athletics director to the lawsuit.

The group argues that the department’s regulations that allowed James Madison to comply with federal gender-equity law by eliminating 10 sports teams (seven of them men’s) are “unconstitutional.” The three-part test for compliance with Title IX of the Education Amendments of 1972 — the landmark gender-equity law typically invoked to open up athletics opportunities for women — discriminates against men and should be abolished, the group says.

Equity in Athletics had asked James Madison to postpone the cuts pending the outcome of the lawsuit. University officials declined. So the advocacy group decided to sue them, too.

“We regret that JMU has left us no choice but litigation,” the group’s president, John Licata, said in a written statement.

The amended lawsuit alleges that the cuts violate not only the Constitution’s equal-protection clause but also the Virginia Human Rights Act and other state laws. Similar lawsuits have proved unsuccessful, but gender-equity advocates worry that this case might find a sympathetic court. —Sara Lipka

There are also comments on this article here.

Former Track Coaches to Meet with Hocutt

Former OU Track Coaches Stan Huntsman and Elmore Banton, and I believe maybe one more former coach, are meeting with AD Kirby Hocutt this Friday. As soon as I hear something on their progress I will let everyone know.

Great Article in Athens News on How OU is Losing Money by Cutting Men's Track

Letter: Did cutting track and field really save the university money?

By Garrett Downing
Athens News Campus Reporter
Monday, June 4th, 2007

Over four months have passed since Ohio University decided to discontinue four varsity sports at the end of their 2007 campaigns, but those affected by the cuts are continuing to challenge the university's rationale for the unpopular cuts.

They say that contrary to the university's position, cutting some of the sports came only because of the need to comply with the Title IX gender-equity legislation, and did not save the university any money.

"It all boils down to Title IX for this sport," assistant track coach Mitch Bentley maintained.

Athletics Director Kirby Hocutt, however, said that eliminating women's lacrosse, men's indoor and outdoor track and field, and men's swimming and diving was necessary to address growing financial concerns within the department and also bring the university into compliance with federal Title IX provisions.

Hocutt acknowledged that the need to comply with Title IX did factor into the decision of which sports to cut, but the finances were the top concern.

"When you get down to it, this is a financial issue," Hocutt said. "If Title IX was not an issue, we would have still been in a position to discontinue athletic programs because of the financial state of our department."

Hocutt confirmed, however, that some of the real savings are coming from avoiding the significant investment needed to improve the quality of experience for the three men's sports. In other words, the university is saving money by not having to proceed with necessary and costly improvements in the sports.

While the OU administration said that the sports cuts have helped shrink the department's deficit, some are arguing that eliminating the men's sports is actually costing the university money.

With the track program, the department is saving no scholarship money because all of the scholarships are being retained by men's cross-country. The current system distributes scholarships between indoor/outdoor track and field and cross-country.

(The cross-country team is retaining all five scholarships, which is the maximum number of scholarships allowed by the NCAA, Hocutt said.)

Men's swimming and diving had very few scholarships to work with because the program was on a freeze with scholarships. Last season, it did not even sponsor two full scholarships.

The track-and-field and swimming-and-diving coaches will remain on staff to coach the women's programs, which results in no salary savings for coaching personnel. While eliminating the men's sports did remove the operating expenses, track and field has one of the lowest budgets of any college sport.

Also, by cutting the programs, the athletics department forgoes some of the Sports Sponsorship grants awarded by the NCAA.

The NCAA awards the university $22,000 for each sport that it sponsors above 14. Eliminating four sports results in annual lost revenue of $88,000. Records show that the university received $156,862 from the NCAA last July for the seven sports above 14.

Hocutt and Rob Andrey, associate athletic director for associate and internal operations, acknowledged that the financial savings for track and field and swimming and diving were not the key components of the cuts, but only part of a larger solution.

"Is the financial savings on the elimination of men's track and field significant? No it's not," Hocutt said "But the financial investment required was going to be very significant to get men's track and field to a level where it needed to be." Hocutt also said that eliminating the sports would improve the overall athletic experience for the sports that the university continues to sponsor.

Those affected by the cuts, however, are still waiting to see if the experience improves.

"I have been told it is going to (improve), and that is something we certainly expect to happen," head swimming and diving coach Greg Werner said. "It is interesting that we talk about improving our environment, yet the decision absolutely has worsened our environment in some aspects."

Werner noted that removing the men from the swimming-and-diving team has hurt the training atmosphere and the support system.

The majority of the financial savings came with the elimination of the women's lacrosse program. The athletics department identified lacrosse early in the process because of the significant savings of cutting the program, Hocutt said.

The department saved money by eliminating the 12 scholarships and the coaches' salaries of the lacrosse team. Also, the Mid-American Conference does not sponsor women's lacrosse, which made for a more expensive travel budget.

Because nearly all of the savings came from lacrosse, some people have argued that cutting the men's sports came only on the grounds of the proportionality clause of Title IX.

In order to comply with Title IX mandates, the athletics department must satisfy a three-pronged test, doing one of the following: 1. The number of student athletes must be proportionate to the male-to-female ratio of the student body. 2. Demonstrate a history of adding women's programs. 3. Satisfy the interests and abilities of women.

The department realized that it was not in compliance with the law, and needed to add another women's sport, or cut some men's sports. Due to the financial situation, adding sports was not feasible, and they had to resort to cuts, Hocutt said.

Men's track and field has been a target of sports cuts around the country partly because the male athletes of indoor and outdoor track count twice when counting total athletes (once for indoor and once for outdoor) for the purpose of Title IX compliance.

Deciding to cut men's sports to comply with Title IX, even without significant financial savings, proves that the law needs to be re-examined, Bentley said.

Hocutt said that the cuts, along with the addition of new policies within the department--such as increasing revenue -- will place the department in a much better financial situation in years to come. The department plans to operate with at least a balanced budget, if not a surplus, by 2011, Andrey said.

Newsweek Covers EIA Lawsuit Against U.S. Dept. of Ed

School Athletics: Is Title IX Fair?
While federal law made sports more accessible to women, critics charge it works against male athletes.

By Alexandra Gekas
Newsweek

May 20, 2007 - In 1972, Title IX of the Education Amendments was made law. It requires that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” giving equal opportunity to women in school activities for the first time. But while Title IX opened doors for women in all arenas of the educational system, it was taken most literally when applied to athletics programs. Requiring that schools have an equal number of male and female players, whatever the proportion of interest, forced some schools to cut back on male athletics programs, like at James Madison University in Harrisonburg, Va., which is being added to a suit against the U.S. Department of Education by Equity in Athletics Inc., after the university announced it will permanently cut 10 men's teams to comply with anti-sex-discrimination laws. NEWSWEEK’s Alexandra Gekas spoke with Jessica Gavora, vice president for policy of The College Sports Council and author of “Tilting the Playing Field” about the arguments against Title IX.

NEWSWEEK: You have spoken out critically against Title IX. I assume you are not against women being able to play sports, so what is it that you are opposed to?

Jessica Gavora: I am not against Title IX, I am only against what it has become through its implementation. The law has been hijacked and has put government into the role of coercing schools to make it look like men and women are participating in athletics at the same rate. Doing a proportionality test forces schools to manipulate their rosters to make the gender ratios match that of the student body. And this is hard for lots of schools to do. Men and women don’t turn out to play sports at the same rate. They don’t show the same interest in sports, not to mention that these colleges and universities are increasingly female so schools end up having to make that gender ratio match. They end up cutting their men’s teams and limiting the size of the teams that do exist to make it look like men and women are equally participating in sports.

Do you advocate getting rid of Title IX?

I do think we still need title IX. I think that everybody in our educational institutions deserves protection against sex discrimination. I think that’s an important part of equality in this country. But we need to change the way we are judging schools. They need to be able to offer sports on the basis of student interest. That’s why we applauded the student interest survey, [which surveyed the student body based on interest in athletics, allowing for representative sports teams] because right now we have this very arbitrary numerical formula that we are applying and it’s hurting athletes. Not just male athletes, but female athletes on small roster squads. Women who play smaller roster sports don’t get the same opportunity.

What do you think needs to be changed in Title IX to make it work better?

This is the real sticking point right now; it’s the only area that needs improvement. Title IX speaks to lots of things, equal facilities, practice times and all these other comparisons for complying with the law that are perfectly fine. It’s this participation question. How do we decide what’s fair when we’re segregating our athletics by sex? This is the only controversial question with Title IX as far as I’m concerned and it needs to be settled with an interest survey. Women today are aware of their options, they’re very athletic; they know what they want to do. They should be able to say what they want to do. We don’t apply this same test, [which requires the gender ratio of athletics to match the gender ratio of the student body] to any other area of education. We don’t apply it to engineering, and I would probably say it’s more important that we have more female engineers than female equestrians.

What do the people on the other side of the issue argue?

The people on the other side of this believe that it isn’t the role of the university to accommodate the interests of women; they believe it’s the role of the university to create interest. They believe it is the role of the university to educate women on how athletic they are.

What do female athletes say?

I know that I’ve heard from lots of female athletes who are starting to say that this law has outlived its purpose. They don’t understand what this law means because they’re seeing it limit the opportunities of the men they travel and train with and who make them better athletes. And they think it’s insane. There’s a big generational divide here. Some of the women who are of the “if you build it they will com”’ mentality are older women and they lived at a time and went to college at a time when women were being given the short end of the stick in a major way. But these women today have had a very different experience and they don’t agree with what this law is doing to their male colleagues.

Is it a financial issue? Are schools trying to allocate funding and cutting teams because they can’t afford them all?

It is not a financial issue. The formula for compliance, the proportionality does not say that schools have to spend an equal amount of money on the boys and the girls. It’s a body count quota. It says 55 percent of your athletes have to be women if 55 percent of your student body is women. So we see schools practice what they call “roster management,” which means they limit the size of the men’s team. They turn away male walk-ons who don’t cost them money, who don’t travel with them and who just want to play. They turn them away because of the body count quota. Time after time we see schools eliminate a team and alumni come forward and say they will pay for the team and the school will say no because they can’t have the male bodies on their rosters.

What about the big-money sports, like college football teams, that have 80 players when they only really need 30. Do you think they are taking up spaces for smaller men’s sports?

Some people like to say it’s all football, because schools are spending all their money on football teams, but that’s not what this is about. Those football players aren’t taking any opportunities away from females. The money they spend on football is not the reason they can only have 15 guys on their baseball team, when if they took their walk-ons they could have 50. Women don’t come out and play for the team without scholarships the way men do. Women have a lot more things they want to do. Look at the gender balance for every extracurricular activity and they’re all dominated by women, except sports. Women have more diverse interests; men are more maniacally interested in sports. Some people say that’s gender heresy but I don’t think that’s a bad thing.

This mostly applies to college sports, but how is it relevant to high schools?
This proportionality has so far been pretty much confined to colleges and universities and it would really be a tragedy if it were applied to high schools. Like I said, look at who’s doing what extracurricular activity in high schools and then tell me we need to force equality of participation in sports. You’re going to hurt a lot of boys because a lot of girls are busy after school doing other things, so I think it would be terrible if we expanded this to high schools.

URL: http://www.msnbc.msn.com/id/18758554/site/newsweek/

Good Article on the Title IX Crisis

The Title IX Crisis: Leadership Needed from Ueberroth and Masback

By James Dunaway

Spring 2007

Yes, you, Peter Ueberroth, and you, Craig Masback.

In the past 30-odd years, the very admirable idea of Title IX has been twisted into a form that threatens the future of the United States' performance in the Olympic Games.

Since the enactment of Title IX in 1972, and the bureaucratic promulgation of "guidelines" which have gradually hardened into fiat law, university after university has dropped participation in a number of men's varsity sports, citing Title IX as the reason.

The worst hits have been taken by men's wrestling and gymnastics. More than 400 collegiate wrestling teams have been discontinued, and according to the NCAA only 17 Division One men's gymnastics programs are still competing. Seventeen!

Track and field and swimming have also been hard hit. Among the men's swimming programs dropped are UCLA and Miami, which between them have produced 27 Olympic medals. The scores of major discontinued men's track programs include Southern Methodist, Bowling Green, West Virginia, Western Michigan--and most recently Ohio University and James Madison.

Since 1896, United States athletes have won a total of 2,089 Olympic medals. More than ha1f, 1,095, have been won by male athletes in just four sports--men's track and field (605 medals), men's gymnastics (58), men's swimming and diving (316), and wrestling (116)--the very sports that have suffered the most from the restructuring of collegiate sports brought about by the current Title IX "rules." If that isn't a crisis for the USOC, what is? Where is the USOC going to be if the four sports that have won 52.4% of all U.S. Olympic medals go out of business?

The James Madison announcement brought a strong reaction from Equity in Athletics, a non-profit organization which seeks to change the rules which universities say is the reason why so many men's programs have been chopped.

Equity in Athletics is doing something about the crisis--suing the U.S. Department of Education to get those rules changed.

I believe that you, Peter Ueberroth, and you, Craig Masback should be doing something, too.

First, you and the leaders of every NGB involved with an Olympic sport must recognize that this is a crisis. Get it off the back burner and start thinking about ways to solve the problem.

Second, USOC and USATF should take an interest in the Equity in Athletics lawsuit. EIA has taken a different legal route from the prior Title IX cases that have failed, and the USOC and all the NGBs ought to have their lawyers study the approach EIA has taken and file strongly supportive amicus curiae briefs.

If you don't do something about Title IX, it sure as hell will do something about you. -- James Dunaway

EIA Op-Ed in USA Today

EIA is the organization suing the U.S. Department of Education, James Madison U., and Ohio University over illegal enforcement of the proportionality rule, established in 1996, that does not have legal merit.

Repeal unwise standards

By Larry Joseph Mon May 7, 6:37 AM ET

With controversial subjects such as Title IX in sports, it is worth noting areas of wide agreement, which give perspective to the narrow dispute. Title IX's athletics regulations have three components: scholarships; other benefits, such as facilities; and which sports to field. There is no dispute over scholarships and other benefits.

Within the third component, no one disputes regulations adopted in 1975 requiring schools to equally accommodate the interests of both genders. Everyone is for "equal." But we disagree on what it means. The dispute centers on whether schools must provide equal opportunity, based on interest (the 1975 standard) or equal participation in proportion to their overall ratio of men to women (a standard adopted in the 1996).

Under the 1975 standard, schools would not dream of cutting, say, men's track but not women's if there was interest in the sport among both genders. Indeed, the Ford administration adopted that standard to prohibit schools from supporting a team for only one gender when both genders showed interest. That standard applied equally to sports traditionally played by only one gender. If a school fielded sports played predominantly by men, such as wrestling, it would also field sports played predominantly by women, such as field hockey. And vice versa.

The 1975 standard drove the tremendous growth in women's sports, and no one proposes its repeal.

Under the 1996 standard, however, schools that already meet the 1975 standard nonetheless feel compelled to cut down to enrollment proportionality. Increasingly, those cuts include small-roster women's programs such as gymnastics and tennis. Dishearteningly, such schools could keep their existing programs, but for proportionality's pressure to produce equal results, something neither required nor allowed in other areas such as nursing, dance or math.

Even when schools cut teams for purely financial reasons, proportionality exacerbates the cuts and targets men and small-roster women's teams. And schools often refuse alumni offers fully to endow teams cut for "financial" reasons. The proportionality requirement is to blame, and its repeal is essential to equity and athletics.

Larry Joseph is a counsel to Equity in Athletics Inc., a non-profit group suing the Education Department over the interpretation of Title IX.

OU track bids adieu

OU track bids adieu

From staff reports

The Ohio University track and field teams finished its existence at home over the weekend with a bang, winning 24 events to close the door on the track and field program. Ohio's participation in the Ohio Open was the last home meet before the program is cut and served as preparation for the Mid-American Conference Outdoor Track and Field Championships in Oxford on May 10-12th.

The Bobcats saw three athletes make NCAA regional provisional marks in throwing events. Eric Bildstein threw the hammer 55.97m, Chelsea Stephan tossed the javelin 44.71m and Bahiyjaui Allen launched the shot put 14.5m. All were good for first place in the respective events. The women had an abundance of success with 11 first-place awards earned. Chanelle Harmon took first in the 100m and 200m dashes while Kari Summers owned the 800m dash with a time of 2:20.41. Anne Beecham finished the 1500m race in 4:55.08, Melissa Wiley won the 100m hurdles at 14.87 and Bahiyjaui Allen won the discuss toss as well as the shot put. Chelsea Stephan's javelin and Jessica Tanner's hammer throw of 164-08 rounded out the top honors.

For the men, Scott Mayle was a quadruple-crown winner in the 100m and 4x100, high jump and long jump. Mayle dominated the 100m dash with a time of 10.88, leapt 6-06.75 on the high jump and bounded 23-09.00 in the long jump competition. Mayle also anchored the 4x100 relay team that took first place. Eric Bildstein tripled his luck with a first place finish in the discus (164-07.00), hammer throw (183-07.00) and javelin (186-11.00).

Logan Singleton won the 5000m race, Dan Bailey was first in the triple-jump (45-05.75), Austin Schiele won the 1500m race (3:56.13) and Curtis Leuenberger was first in the 200m race (21.67). Brad Hershey won the shot put competition with a throw of 48-01.75 and the Bobcat relay team won the 4x100m and 4x400m relay races.

Ohio men shine in final home meet

Track & Field: Ohio men shine in final home meet

’Cats save the best for last, win 13 events with high emotions
Jason Fazzone / Assistant Sports Editor / jf104004@ohiou.edu

With arms draped over each other’s shoulders, members of the Ohio men’s track and field team took one last victory lap around Goldsberry Track, bowing collectively when they reached the finish line.

Saturday’s Ohio Open was the last regular season home meet for the team, and the emotions were high.

“Being the last time at home, it pulls on you pretty hard,” coach Clay Calkins said.

The Bobcat men appeared to save the best for last, winning 13 events and providing a storybook ending by taking first place in the 4x400-meter relay, the final race of the day.

“It was important to us,” Dan Bailey, who was part of that relay team, said. “It was the last men’s relay team at Ohio University to compete at a home meet, and ending it on top — it doesn’t get any better than that.”

Scott Mayle won three individual events — the 100-meter dash, the high jump and the long jump — and the senior anchored the 4x100-meter relay team that finished first.

Fellow senior Eric Bildstein won three events as well, taking the discus, hammer throw and javelin competitions. Bildstein’s mark of 55.97 meters in the hammer throw qualified him for NCAA regionals.

Bildstein was one of three Bobcats to meet the regional provisional mark Saturday. Women’s team members Chelsea Stephan qualified in the javelin with a throw of 44.71 meters, and Bahiyjuai Allen made the mark in the shot put with a throw of 14.50 meters.

“Everybody did better than expected today,” Calkins said. “We had three regional qualifiers in the throws today, which is good to see. Any time you hit those kinds of marks, you know you’re doing the right things.”

Five other members of the men’s team won their respective individual events, including Bailey’s victory in the triple jump, Curtis Leuenberger’s win in the 200-meter run and Austin Schiele’s first place finish in the 1,500-meter run.

One last run for men's track

One last run for men's track

By Garrett Downing
Athens News Campus Reporter
Monday, May 7th, 2007

Members of the Ohio University men's track-and-field team threw their arms around one another's shoulders and took one last lap around the track at Peggy Pruitt Field on Saturday. They joked and smiled as they came cruising past the finish line to the cheers and camera flashes of family and friends.

The victory lap provided a bright moment in a season that has been clouded with controversy and hardship. The Bobcats set aside the emotions surrounding the program's final home track meet, and finished on top. The men concluded Saturday's Ohio Open with a victory in the 4x400m relay, one of 13 first-place finishes on the day.

"It has been a roller-coaster ride emotionally," senior thrower Eric Bildstein said. "We have done a great job considering the adversity we have had to face both physically and mentally."

While the year has brought success to the program, including several new records and one of the top teams in the Mid-American Conference, the athletes have competed with the always-present reminder that next season does not exist.

"It is rough," senior All-American long-jumper Scott Mayle said. "Even though this is my last year, it is still rough to think about the rest of the guys that aren't going to be able to run next year."

Sporting shirts reading "I got Hocutt," the student athletes took a final jab at Athletics Director Kirby Hocutt, who announced on Jan. 25 the decision to eliminate four varsity sports at the end of their 2007 campaigns. Along with men's indoor and outdoor track and field, the administration also cut men's swimming and diving and women's lacrosse.

The administration has justified the cuts as necessary measures to comply with federal Title IX legislature and eliminate a growing financial deficit within the athletics department.

The financial situation is so grim that the university had to ax one of its most storied programs. Since its inception in the early 1900s, the track-and-field team has produced an Olympic medalist and several All-Americans, and won more individual national titles than any other OU varsity sport.

"You have to put that aside at a certain point because you can't let your anger get the best of you," Bildstein said. "You still have to relax and throw, run and jump the best that you can."

With more meets left this season, including MAC and Regional championships, the team tried to muffle the emotions and focus on performance. But for the team to ignore the feelings of competing in a program's last home meet is almost impossible.

"I'm sure that it is weighing on everybody's mind," head coach Clay Calkins said. "It is sad to see that this is going to be the last chance to do this."

The seniors led the Bobcats in Saturday's meet, as Mayle and Bildstein captured first place in three individual events. Dan Bailey, Austin Schiele, Logan Singleton, Curtis Leuenberger and Brad Hershey also earned first-place finishes. The 4x100m and 4x400m relays also finished in first.

Saturday's success matched the strong performances that the Bobcats have been putting forth all season, demonstrating their resilience in the face of a strenuous situation.

"It really says a lot that we have been able to put all of that behind us," Bildstein said. "This is one of the best teams that we have ever had, and I want everybody to see that. It just sucks that this is the last year that anybody is going to see us again."

As the members of the men's track and field team crossed the finish line for their final victory lap, it concluded the program's historic run, leaving a legacy for others to admire.

"Hopefully people remember us for doing it right and finishing in the end, despite all of the things that happened," Bildstein said. "No matter what, we were able to finish, and finish correctly."

Last Track Meet

Track: The end of a prestigious run

Rob Hardin / Senior Staff Photographer / rh124104@ohiou.edu

Ohio’s Austin Schiele competes in the men’s 3,000-meter steeplechase during the Southern Ohio Cup on March 31. Schiele and his teammates will compete in the Ohio men’s track program’s final home meet tomorrow.

When the last runner crosses the finish line at the Ohio Open tomorrow, it will not just be the end of a meet — it will be the end of an era.

Tomorrow’s competition marks the final home meet for the men’s track and field team as it prepares for the Mid-American Conference Championships next Thursday in Oxford.

On Jan. 25, Director of Athletics Kirby Hocutt announced that four varsity sports would be eliminated, including men’s indoor and outdoor track and field, ending one of the most storied programs in the school’s athletic history.

Since its inception in the early 1900s, the men’s track and field program has won more individual national titles — six — than any other program at Ohio. Track and field athletes have been named All-Americans 28 times and have won 94 Mid-American Conference titles.

During the 1966-67 season, sophomore Emmett Taylor won the first national title in the program’s history in the 440-yard dash, but he said that wasn’t the greatest moment in his career.

“Winning the second national championship that I ran in (was). It was more exciting than the first because I had left my shoes in the hotel that I was staying in,” said Taylor, who won his second national title in 1968 in the 200-meter. “One of my best friends lent me his shoes, and I ran the race in those.”

Just as impressive as the team’s success on the field has been the team’s exemplary status off it.

Elmore “Mo” Banton became Ohio’s first black head coach in 1980 and stayed with the program for more than 20 years. In all of those years and all of the kids he coached, he said not many ever caused problems.

“I think back on my years at OU, and in 23 years, I bet I couldn’t come up with five kids that I had trouble with,” Banton said. “That’s a small number when you compare the amount of kids on a track team.”

The Bobcats became one of the founding members of the MAC in 1946, but they didn’t experience much success until Stan Huntsman took over 10 years later.

Huntsman helped develop 15 All-Americans, and the athletes he coached placed at the NCAA championships 10 times. He coached his team to a school-best eighth-place finish in 1968. He later became the program’s only member to be named to the National Track and Field Hall of Fame.

Despite his success on the field, Huntsman said that his greatest achievement at Ohio had nothing to do with helping the team gain national prominence.

“I think my biggest accomplishment was being a good positive teacher and coach and a big influence on the student-athletes,” Huntsman said. “I’m real proud with how the alums that I coached turned out.”

Taylor, who started his own business after his track career, and is now retired and living in Las Vegas, said that his days at Ohio helped him become a better person.

“It helped me immensely for the training I did and to grow as an individual. It made me a better human being,” Taylor said. “I had an easier time meeting people, so it made it easier for me to talk to people and just to be more aggressive in life.”

Eric Bildstein, a fifth-year senior, set the school indoor record in the 35-pound weight throw during the 2004 season. Bildstein said that being on the track team enhanced his overall college experience.

“OU is a great place to go to college,” Bildstein said. “Being able to compete with the Ohio colors on was just great. It just made college so much more worthwhile.”

Banton, who won a national title in cross country for the Bobcats, said that coming to Ohio was the best moment in his life.

“The greatest thing to happen to me was going to OU. It was not my first pick back in those days, and I’m glad I did,” he said. “I learned a lot about coaching, and then to come back and coach (at Ohio) was just the greatest thing.”

Long Dispatch Story on OU Track!

Running on empty: Ohio University's decision to ax track and field leaves athletes hurt, disillusioned

Thursday, May 3, 2007 4:02 AM

ATHENS, Ohio -- To the naked eye, everything appears normal as the Ohio University men's track and field team goes about its daily workout at Pruitt Field. The place teems with distance runners and sprinters huffing and puffing their way around the quarter-mile track and others stretching or conferring with coaches.

This, however, isn't a normal day. It hasn't been a normal season for the Ohio track team, either. It has been a passion play pitting angry and disillusioned athletes, ex-athletes, former coaches, students and some fans against an administration they say worries only about the almighty dollar.

On Saturday, the collegiate athletic careers of most of these Bobcats will end with the Ohio Open in Athens. After the school year, the university will discontinue men's outdoor track and field and three other intercollegiate sports -- men's indoor track and field, men's swimming and women's lacrosse -- for budgetary reasons and to conform to Title IX, the federal law that mandates that women athletes receive equal opportunities as men.

Athletic scholarships will be honored for the remainder of every athlete's term of eligibility, but that is of little consolation.

"I feel for my teammates. This is an awful situation," said Kevin Dean, a junior distance runner and audio production major from Granville. "I wouldn't think of transferring. I'm staying because I love Ohio University. I have so much pride in my school. That's why this decision is so hard to take. It's such small change to fund our program. We don't get the special steak dinners like the football and basketball teams."

Ohio's decision to eliminate sports isn't a new concept in the Mid-American Conference. In 2007-08, the 12-school league will field only four men's swimming teams, five men's indoor and six men's outdoor track teams.

NCAA president Myles Brand recently called the extermination of athletic teams "a troubling issue."

"Title IX encourages participation and in no way requires or even suggests that programs be cut," Brand said at a forum sponsored by the Chronicles of Higher Education. "The best answer is to use resources more wisely so that more students can participate, not fewer. Athletic departments need to learn how to balance their budgets."

Two years ago, when he was hired as Ohio athletic director, Kirby Hocutt walked into a situation that could best be described as a festering wound. Former AD Thomas Boeh had stripped the swimming team of scholarships and cut men's track scholarships from eight to five. The women's lacrosse team was eating $479,897 out of the budget with trips to faraway places such as Baltimore, San Francisco and Louisiana for conference games.

University president Roderick McDavis and Hocutt have said the athletic department will have a deficit of approximately $4.3 million.

"The first sign that there were serious financial issues came three or four years ago when men's track and field and men's swimming and diving were de-emphasized," Hocutt said. "That was one of the first mandates I received when I was hired -- to be fiscally responsible. I had to make a decision that benefited the entire athletic department, while at the same time I knew it would affect student-athletes. When you look at these young athletes and see the hurt and disappointment, that hurts."

Critics of the university's actions say the budget for men's outdoor track and field is small change, with a budget of less than $28,000. At least $22,000 could be paid for through a yearly NCAA sponsorship program for universities that field more than 14 athletic teams. The men's swimming team budget is $40,975.

Hocutt said it doesn't make sense to have teams that can't compete at a high level because of lack of scholarship money.

"It still gets back to the quality of experience we're providing," he said. "Was our current track and field budget where it needed to be? No. Was our current swimming and diving budget where it needed to be? No. It was going to take a significant investment in those programs to have the success we expect. It's not healthy working this way."

Hocutt said the athletic department has been borrowing from other programs since the late 1990s to help fund three women's sports -- soccer, golf and lacrosse. By fielding 16 teams instead of 21, he said the university would be able to compete, not just play.

This season, Ohio track and field athletes rank in the top five in the MAC in 10 of 22 events. Craig Leon and Chris Campbell are first in the 10,000 meters and discus, respectively. Last year, the indoor team was last in the MAC championships and the outdoor team was next to last.

Track coach Clay Calkins and assistant Mitch Bentley have offered several options to save the team. One was a "phase-out," which would enable current athletes to compete until their eligibility runs out. A second was to seek private benefactors and corporations to endow scholarships. A third was to discontinue indoor track and drop the numbers in men's outdoor track from 50 to 30. The university rejected each option.

"The thing is, this is such an economical sport," Calkins said. "The university gets a lot of bang for its buck with track and field. We've already been cut scholarship-wise. We never thought it would come to this. Track and field in the MAC is just getting slain."

In a letter, the student government condemned the university's decision to cut sports. A group called Equity in Athletics has threatened a lawsuit against the university if the cuts aren't postponed.

Former Ohio track and field coach Stan Huntsman, a member of the U.S. Track & Field hall of fame and head coach of the 1988 U.S. Olympic team, ordered that his plaque be removed from Ohio's hall of fame as a protest. Former Bobcats track star Les Carney, who won a silver medal in the 1960 Rome Olympics in the 200 meters, said he might do the same.

Huntsman, Carney and former Ohio track coach Elmore Banton will meet with McDavis on June 15 about keeping the program alive.

"It doesn't make sense when you look at the big picture," Huntsman said from his home in Austin, Texas. "This cuts off the history of a successful program and successful kids. I'm not going to go away. I'm going to start a campaign. The issue is simple: it's about money. The university has a desire to go big-time in football. We're trying to become the Boise State of the MAC."

Critics point out the Ohio football team lost $181,000 playing in the GMAC Bowl against Southern Mississippi. They say more than $85,000 was spent on "inspirational graphics" in football meeting areas, $39,890 was spent to keep the lights on in Peden Stadium during 57 visits by recruits and annual salaries of the offensive and defensive coordinators are $89,629.

Hocutt countered by saying Ohio ranked at the bottom in the conference before Frank Solich was hired as football coach before the 2005 season. The GMAC was the team's first bowl since 1968 and the nine victories in 2006 were the second most in school history.

"Ohio University has made a commitment to be successful in all 16 sports, and football is one of them," Hocutt said. "It begins with hiring quality coaches. We have invested in our football program."

Kent State athletic director Laing Kennedy said Ohio probably didn't have much choice than to cut. Kent has 18 programs but through the years has axed ice hockey and men's and women's swimming.

"I respect Kirby Hocutt," Kennedy said. "Kirby walked into this management problem and now has to try and solve it. I believe they had no other choice."

Minnesota athletic director Joel Maturi said universities must begin looking 10 to 12 years ahead to save teams. When Maturi was athletic director at Miami University in 1999, the school kept men's golf and men's outdoor track by endowing scholarships. When he was hired by Minnesota in July 2002, men's and women's golf and gymnastics were about to be dropped. Each was saved when $2.7 million in private money was raised in 10 months.

"We were fortunate to buy ourselves time," Maturi said. "At Minnesota, football, (men's) hockey and men's basketball are the only sports that pay for themselves. If this were a business instead of a college, the University of Minnesota wouldn't be here."

Maturi said he cut wrestling at Miami for the same reasons Ohio is cutting.

"I remember seeing us lose to Central Michigan 62-0 in wrestling," he said. "That was absolutely awful. We had two scholarships. Was that a quality experience? We just couldn't continue like that."

That others have suffered before them is little consolation to Ohio athletes whose sport has nearly vanished. Distance runner Nate King, a sophomore from Hilliard Davidson majoring in special education, said the university dropped a bomb on the team's lap.

"They were so fuzzy about things for so long," he said. "It makes no sense to me. They say we'll still have cross country, but what good high school runner is going to come here for cross country knowing there is no indoor or outdoor team?"

The Ohio Open usually is a celebration. On Saturday, it could be a wake.

"It sure will hit home," said Bentley, the assistant coach. "It's going to hurt."

mznidar@dispatch.com

Columbus Dispatch Covers EIA Suit Against OU, DoE

Group threatens to sue OU over cutbacks: Varied interpretations of Title IX's real purpose create compliance flap

ATHENS, Ohio -- Ohio University says it won't reverse its decision to eliminate four varsity athletics programs despite a warning from a group in Virginia that it might sue if the cuts aren't postponed.

The university announced in January that it planned to drop men's indoor and outdoor track, men's swimming and diving, and women's lacrosse to trim nearly $700,000 from the athletics budget and bring the school into compliance with Title IX, federal legislation that guarantees students equal opportunities regardless of gender.

But the recently formed Equity in Athletics argues that the cuts violate the spirit of the federal law.

In March, the group filed a federal lawsuit against the U.S. Department of Education based on the elimination of 10 sports programs at James Madison University in Virginia. The Education Department enforces the gender-equity rules at all universities that receive federal money.

Equity in Athletics describes itself as a nonprofit coalition of athletes, coaches, parents, alumni and fans. In a letter to OU officials this month, the group maintained that Title IX never was intended to be based solely on headcounts.

The group's argument is that Title IX was designed to make sure men and women got equal opportunities to compete in college athletics based on their relative levels of interest. However, its officials said, later policy readings have replaced that standard with a benchmark of participation reflecting enrollment levels for each sex.

Such "balancing" is unconstitutional, the group contends, and can sometimes lead schools to cut smaller programs, both men's and women's, in an attempt to reach overall gender balance based on enrollment ratios.

"We would argue these are quotas," said Larry Joseph, an attorney for the group. "(Title IX) is an equal opportunity statute, not an equal result statute."

"I feel very confident that we have not violated any federal law," countered OU athletic director Kirby Hocutt.

Based on OU's understanding of the law, the university was out of compliance with Title IX before making the athletics cuts.

The cuts also were needed for budgetary reasons, and to allow OU to maintain quality in its remaining sports programs, Hocutt said.

"Our decision remains final, and it was obviously a very difficult decision to have to recommend and make," he said.

Branden Burns, an 18-year-old freshman swimmer from Kent, Ohio, is spearheading the campaign at OU to save the threatened programs.

Burns said he met this month with OU President Roderick McDavis and proposed a plan whereby the programs would raise money to support themselves and be gradually phased out of varsity status over three years rather than shut down at the end of this academic quarter.

In the meantime, he said, he and other student athletes hope the coalition wins its federal court case.

"If EIA wins its suit, then the cuts here at OU would be illegal," he said. "So (our plan) could save the university some headaches down the road."

Joseph said his group would like to work out an arrangement with OU under which the university would postpone the cuts long enough for a federal court to rule on the group's legal challenge.

In exchange, he said, his coalition would leave OU out of any federal litigation as a defendant.

"We're giving the schools a choice," he said. "Sit on the sidelines and defer the cuts, or be a defendant."

jamesbphillips@dispatch.com

ANews Covers EIA Members at OU

OU student-athletes join group's effort to force Title IX changes

Thursday, April 26th, 2007

With the addition of 20 Ohio University students, the Great Lakes Chapter of Equity in Athletics Inc. is growing by the day as new people join to save the recently cut varsity-sport teams at Ohio University and to restore what they feel is federal Title IX's original intent of eliminating discrimination in athletics.

"So far our voices and suggestions have been tossed aside. However, we have not yet begun to fight," vowed OU freshman swimmer Branden Burns.

According to its Web site, EIA is a coalition of students, alumni, parents and coaches who want to preserve broad-based, equitable sports programs. EIA is a national group, containing Virginia, Pennsylvania and Great Lakes chapters. The Great Lakes Chapter is made up of members from Ohio and Michigan.

Burns said that he and other OU students became involved with EIA after Burns consulted Title IX experts within the academic community, the U.S. Department of Education, and NCAA officials on the status of OU's Title IX compliance.

"All agreed that these cuts were not necessary to comply with Title IX and that the university used Title IX as a scapegoat," said Burns.

After conversations with local experts, Burns said he contacted EIA to explain OU's situation, and soon joined the organization and began discussing ways to save the athletic programs with EIA attorney Larry Joseph.

"As a member of EIA, I work with other EIA members to strategize and organize ways in which we can save our teams," said Burns. "I joined EIA because they had already started in the battle to save programs at JMU (John Marshall University in Virginia), and they have the experience and know-how when dealing with Title IX situations like the one we have here at OU."

Burns, a swimmer for the recently cut men's swimming and diving team at OU, acknowledged that the university's recent decision was disappointing. "I realize that this has been a tough situation for all parties involved," said Burns. "However, the decision to cut four sports was a terrible decision." (The three other cut sports include women's lacrosse and men's indoor and outdoor track and field.)

The athletes affected by these cuts, Burns added, represent the best and the brightest students this institution has to offer. "These cuts, if they stand, will have a far more negative affect on this institution than I think the administration realizes," said Burns. "This has caused student moral to go down, and this then affects student retention and new student recruitment."

Emily Wylam, swimmer for the OU women's swim team, which survived the cuts, said the decision was devastating to everyone who was involved. "I don't think that it was correctly gone about by the administration," said Wylam. "I think it was very hidden in their agenda, and they didn't truly consider the feelings of the athletes they'd be affecting."

In hopes for a compromise, Burns and other EIA members have suggested many solutions to the OU administration, including a "Phase Out" plan, as an alternative to abruptly dropping the sports after the current seasons.

"We have given many suggestions on how OU can do this with a positive outcome for both the university and the students affected," said Burns.

Burns said the Phase Out plan would allow the freshman class to finish out their eligibility on the team, and proposes funding for the teams for the next several years through alumni and local fundraisers and donations. This proposal would buy the teams extra time while EIA's case proceeds through litigation. The organization is hoping that its lawsuit against the federal Department of Education will result in such eliminations of sports teams that occurred at OU being ruled unconstitutional.

"We love OU, and we don't want OU to get trashed all over his. However we are fighting because we want to stay here," said Burns. "We want to go about this as professionally and politely as possible, but if it cannot be done that way, then unfortunately it will most likely have to go to litigation.

In the April 17 letter to John Burns, OU's director of legal affairs (no relation to Branden Burns), EIA attorney Joseph said students were not the only local party to question the sports cuts. "Even members of OU's Board of Trustees privately have expressed the concern that OU did not handle these cuts well procedurally, and now EIA-GL has raised significant substantive questions as well," wrote Joseph.

In the letter, EIA refers to its lawsuit against the U.S. Department of Education in the U.S. District Court for Western Virginia "and its Great Lakes Chapter's intent to file a similar lawsuit over the OU cuts." The Great Lakes Chapter asked OU to postpone its plans to cut the athletic programs, and threatened to file a lawsuit against OU if the university doesn't comply with the group's demand.

The letter maintains that if OU maintains its sports cuts, the university is violating both the U.S. Constitution and Title 1X, which according to the press release, creates an equal athletic opportunity, based on the assessed relative interests of both genders.

Branden Burns said that EIA is also out to invalidate the 1996 "three-part test." This calls for "equal athletic participation, based on enrollment, with no need to assess either gender's interest." Joseph said in his letter that like many universities, OU now relies on the three-part test. This, however, does not constitute a valid or current interpretation of Title IX, he argued.

"For a school ostensibly acting in part to save money and in part to comply with Title IX, going through with the planned cuts will not achieve either goal," stated attorney Joseph in his letter to OU legal director Burns.

Currently, Branden Burns and other EIA members are working to save the sports teams by contacting alumni for support and meeting with the Board of Trustees and President McDavis, along with creating and proposing plans to save the cut sports teams. Burns stressed that EIA and its members are not out to get OU. "EIA's fight is with the Department of Education and not with OU," he said. "We do have a problem with their cuts; however, we see the predicament that they are finding themselves in."

Branden Burns encourages all OU students to join EIA and support the cause.

OU has limited its response to EIA's letter and threat of a lawsuit with a short statement from its Board of Trustees chair. In the statement, issued last Friday, Trustees Chair R. Gregory Browning said, "We will not reverse the decision. It is consistent with the law and good public policy."

In general, the university has justified the cuts both on the basis of gender equity and budgetary limitations.

EIA Letter to OU Legal Affairs Director

Click here or read below.

Lawrence J. Joseph, esq.
2121 K Street, NW, Suite 800 - Washington, DC 20037
Tel: 202-669-5135 - Fax: 202-318-2254
www.larryjoseph.com

VIA FEDERAL EXPRESS AND EMAIL

April 17, 2007

John F. Burns, Esq.
Director of Legal Affairs
Pilcher House
Ohio University
Athens, Ohio 45701

Re: Title IX

Dear Mr. Burns:

On behalf of the Great Lakes Chapter of Equity in Athletics, Inc. (“EIA-GL”), this advises Ohio University (“OU”) that EIA-GL intends to file a federal lawsuit to challenge the U.S. Department of Education’s “Three-Part Test” under Title IX of the Education Amendments of 1972. We write now both to ask OU to postpone its plans to eliminate its swimming, track, and lacrosse teams and to put OU on notice of EIA-GL’s legal position.

By way of introduction, EIA-GL’s membership includes OU students, parents, and alumni associated with the teams that OU has scheduled to cut. Both EIA-GL and its members recognize that OU has acted to date under the misunderstanding that its proposed cuts comply with Title IX. As explained in the enclosed complaint in Equity in Athletics, Inc. v. U.S. Department of Education, No. 5:07-0028-GEC (W.D.Va.), however, Title IX neither requires nor allows such cuts. Quite the contrary, Title IX prohibits them.

Neither EIA-GL nor its OU members have any desire to sue OU. Our quarrel is with the federal standards and the federal regulators, who have misled OU and EIA-GL’s members alike. Significantly for OU’s attempt to comply with Title IX, EIA-GL will ask the court not only to vacate the Three-Part Test prospectively, but also to declare it void ab initio and to find that it never lawfully took effect. In essence, OU is steering itself to a mirage, not a safe harbor. Put another way, we are not trying to move OU’s goal post: that goal post does not exist.

Although OU undoubtedly believed that the Three-Part Test constitutes a current and valid interpretation of Title IX’s implementing regulations, it is not. We are confident that the Sixth Circuit will agree for several reasons, including the following:

Ø Prior Title IX Decisions Will Not Control. Although the Sixth Circuit already has ruled in favor of the Three-Part Test, Horner v. Kentucky High School Athletic Association, 206 F.3d 685, 694 (6th Cir. 2000), such prior decisions will not control here for four reasons: (a) they misconstrue the Department of Education’s authority, as made clear by supervening Supreme Court precedent; (b) they improperly defer to the Department, as made clear by supervening Supreme Court precedent; (c) they did not consider the administrative record and procedural requirements that would apply if the Department or its predecessor intended to adopt the Three-Part Test as a standard for Title IX compliance; and (d) the Fourteenth Amendment prohibits such quota-driven cuts, even if Title IX does not.

Ø The Department Lacks Authority to Issue Disparate-Impact Requirements. The relevant precedents that uphold the Three-Part Test rely explicitly or implicitly on the federal agencies’ authority to issue disparate-impact regulations under the intentional-discrimination statutes like Title IX and Title VI. In Alexander v. Sandoval, 532 U.S. 275, 281-82 (2001), however, a supervening decision of the Supreme Court ruled that agencies lacked such authority. Indeed, in April 2001, Sandoval rejected as dicta the very authority on which the federal government previously had relied as support for agencies’ authority for such regulations under Title IX. Compare id. with U.S. Dep’t of Justice, Title IX Legal Manual, 64 & n.48 (Jan. 11, 2001) (www.usdoj.gov/crt/cor/coord/ixlegal.pdf).

Ø The Three-Part Test Does Not Warrant Deference. The decisions that uphold the Three-Part Test rest on controlling “Chevron” deference to the Department of Education’s interpretation of Title IX. In United States v. Mead Corp., 533 U.S. 218, 227-28 (2001), however, a supervening decision of the Supreme Court re-established the lesser standard of “Skidmore” deference for regulatory regimes that (like Title IX) provide the same authority to more than one agency actor.

Ø The Three-Part Test Is Procedurally Invalid. As the enclosed complaint explains, the Three-Part Test (as subsequently reinterpreted by the Department in 1996 and 2003, purports to change a regulation that required equal opportunity, based on the genders’ relative interest, into equal participation based on enrollment. Even if such a standard was substantively lawful, that change would require notice-and-comment rulemaking. The Department’s predecessor recognized as much, and expressly did not take the steps required to implement such a change. Oblivious to the fine distinctions that its predecessor made in 1979, the Department’s 1996 and 2003 actions purport to create a legal requirement that the Department simply cannot create by memorandum.

Ø The Three-Part Test Is Not in Effect. Like its Title VI template, Title IX provides that agencies must act by rule, regulation, or order of general applicability, and provides that such actions do not take effect until approved by the President. 42 U.S.C. § 2000d-1; 20 U.S.C. §1682.[1] The legislative history makes clear that such approval meant signed by the President in the Federal Register.[2] 110 Cong. Rec. 2499-00 (1964) (Rep. Lindsay). As demonstrated by the partial list in the margin, Congress repeatedly cited the presidential-approval requirement as the bulwark against bureaucratic overreaching.[3] As the administrative record for the Three-Part Test demonstrates, the Department’s predecessor expressly did not seek to comply with any of the applicable procedures (including presidential approval) because the Three-Part Test was neither binding nor a test for Title IX compliance.

Ø Quotas Are Unconstitutional in Any Event. In its one departure from Title VI, Congress included Title VII’s restriction against preferential treatment based on imbalances with the total population, 20 U.S.C. §1681(b), which is “designed to prevent…. undue ‘Federal Government interference…. because of some Federal employee’s ideas of…. balance.’” United Steelworkers of Am. v. Weber, 443 U.S. 193, 206-07 (1979) (citations omitted). Although that provision allows courts and agencies to consider “statistical evidence” in a specific “hearing or proceeding,” 20 U.S.C. §1681(b), it “would be contrary to Congress’ clearly expressed intent” to allow “quotas and preferential treatment [to] become the only cost-effective means of avoiding expensive litigation.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 993 (1988) (plurality); accord Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 652-53 (1989). Thus, even if the Three-Part Test is a grammatical interpretation of the Title IX regulations, it is not a lawful one: “outright… balancing [] is patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003); Truax v. Raich, 239 U.S. 33, 36-38 (1915) (“If [rights] could be refused solely upon the ground of [class membership], the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words”). As a state school, moreover, OU must comply with the Equal Protection Clause even if the Department’s memoranda somehow authorize quotas under Title IX. Communities for Equity v. Michigan High School Athletic Association, 459 F.3d 676, 681-90 (6th Cir. 2006) (Title IX’s private action does not displace constitutional equal-protection action under 42 U.S.C. §1983).[4]

Finally, as you may know, the administrative record on the Three-Part Test surfaced in litigation against the Department initiated by the National Wrestling Coaches Association (“NWCA”), in which the Department prevailed. The government’s successful defense in NWCA hinged on standing, with the D.C. Circuit’s accepting the Department’s argument that NWCA did not establish redressability because NWCA did not establish that independent parties (i.e., schools), not before the court, would change their actions if NWCA prevailed. Cf. Bennett v Spear, 520 U.S. 154, 169 (1997) (“While… it does not suffice if the injury complained of is th[e] result [of] the independent action of some third party not before the court, that does not exclude injury produced by determinative or coercive effect upon the action of someone else”) (citations and quotations omitted, emphasis in original). The Department will not have that argument here: either the relevant schools will publicly defer their planned cuts, or they will not be independent parties not before the court.[5]

Even members of OU’s Board of Trustees privately have expressed the concern that OU did not handle these cuts well procedurally, and now EIA-GL has raised significant substantive questions as well. Significantly, plaintiffs can prevail against improper procedures, even if they ultimately would lose on their substantive claims. Carey v. Piphus, 435 U.S. 247, 266-67 (1978) (“right to procedural due process is ‘absolute’ [and] does not depend upon the merits of a claimant’s substantive assertions”). At the very least, therefore, OU should reconsider its cuts under the regulations’ equal-opportunity standard, as distinct from the Three-Part Test’s equal-participation quota.

Like many schools before it, OU has relied on the Three-Part Test. Unlike the schools that preceded it, however, OU would face a legal challenge from a plaintiff armed with the administrative record of the Three-Part Test. We hope that OU will recognize that this is simply not OU’s fight. Instead, for the sake of its students, we urge OU to postpone the cuts to allow EIA-GL time to establish what Title IX and the Equal Protection Clause require.

For a school ostensibly acting in part to save money and in part to comply with Title IX, going through with the planned cuts will not achieve either goal. First, given the out-of-state students (and tuition) that OU stands to lose, postponing the cuts may generate more money than it costs. Second, the cuts will involve OU in litigation, which it could avoid by postponing the cuts. Third, of course, if EIA-GL prevails, OU will face not only the costs associated with bringing the teams back, but also a significant award under the Civil Rights Attorney's Fees Awards Act of 1976. Fourth, and finally, although an EIA-GL member has filed an administrative complaint with the Department of Education’s Office of Civil Rights, he has authorized EIA-GL to indicate that he will withdraw his compliant if OU postpones the cuts. Even if postponing these cuts was not the right thing to do and the lawful thing to do, it would still be the most cost-effective thing to do.

Recognizing that we have presented you with a lot of information, we will do everything we can to assist you in understanding EIA-GL’s position. Ultimately, however, OU has the responsibility to comply with the law. As this short letter and the enclosed complaint demonstrate, OU should have serious questions whether the planned cuts indeed comply. The upcoming meeting of OU’s Board of Trustees presents an opportunity to revisit the cuts. If the Board does not act favorably, the time to resolve this matter outside of litigation will pass quickly. Notwithstanding the short time available, EIA-GL and its members will do everything in their power to work with OU.

Please do not hesitate to contact me – or to have anyone from your staff contact me – with any questions about this matter.

Very truly yours,

/signed/

Lawrence J. Joseph

Enclosure

cc: Dr. Roderick J. McDavis, President, Ohio University (via email w/o Encl.)
Dr. R. Gregory Browning, Chairman, Board of Trustees (via email w/o Encl.)
Board of Trustees (via U.S. Mail w/o Encl.)


[1] See, e.g., 118 Cong. Rec. 5803 (Title IX would have the same procedural protections afforded under Title VI) (Sen. Bayh). id. at 5808 (“These [procedural] provisions parallel Title VI of the 1964 Civil Rights Act”) (fact sheet submitted by Sen. Bayh); Sex Discrimination Regulations: Hearings Before the Subcomm. on Postsecondary Education of the House Comm. on Education and Labor, 94th Cong., at 170 (1975) (“the setting up of an identical administrative structure and the use of virtually identical statutory language substantiates the intent of the Congress that the interpretation of Title IX was to provide the same coverage as had been provided under Title VI”) (prepared statement of Sen. Bayh).

[2] In 1980, the President delegated the rule-approval and enforcement authority to the Attorney General. 45 Fed. Reg. 72,995 (1980) (Executive Order 12,250).

[3] See 110 Cong. Rec. 5256 (Sen. Humphrey); 110 Cong. Rec. 6544 (Sen. Humphrey); 110 Cong. Rec. 6562 (Sen. Kuchel); 110 Cong. Rec. 6749 (Sen. Moss); 110 Cong. Rec. 6988 (explanatory memorandum by Rep. McCulloch, inserted by Sen. Scott); 110 Cong. Rec. 7058 (Sen. Pastore); 110 Cong. Rec. 7066 (Sen. Kuchel); 110 Cong. Rec. 7067 (Sen. Kuchel); 110 Cong. Rec. 7103 (Sen. Javits); 110 Cong. Rec. 11,941 (letter from Attorney General Kennedy, inserted by Sen. Cooper); 110 Cong. Rec. 12,716 (Sen. Humphrey); 110 Cong. Rec. 13,334 (Sen. Pastore); 110 Cong. Rec. 13,377 (Sen. Allott).

[4] EIA-GL will not raise a merely collateral attack on the Three-Part Test. See Miami University Wrestling Club v. Miami University, 302 F.3d 608, 614 (6th Cir. 2002). Instead, by suing both the federal government and a relevant school or schools, EIA will directly attack the Three-Part Test. Cf. Smith v. Robinson, 468 U.S. 992, 1012 & n.15 (1984) (nothing prevents federal courts with jurisdiction over a controversy from reaching constitutional issues).

[5] In dicta, the D.C. Circuit also agreed with the Department’s argument that students lack a cause of action against the Department because they have an adequate remedy against schools. That argument will not work in the Sixth Circuit. Selden Apartments v. U.S. Dept. of Housing & Urban Dev., 785 F.2d 152, 157-58 (6th Cir. 1986) (“the review provisions of the [APA] are made applicable to agency action taken pursuant to civil rights laws by 42 U.S.C. §2000d-2”); accord Schlafly v. Volpe, 495 F.2d 273, 282 (7th Cir. 1974).