University aware of complaint, ready to respond if case opens

A complaint filed this month with the U.S. Department of Justice alleges Oregon State University is violating Title IX of the Educational Amendments of 1972 by inflating women’s athletic team rosters and under-reporting men’s actual athletic participation in order to comply with Title IX.

This administrative and criminal complaint was filed to the U.S. Department of Education and the DOJ on May 9, 2018 by Mark Rossmiller, a Title IX advocate with the Women’s National Law Center. Rossmiller also filed a similar complaint against the University of Washington the same day.

The complaint states OSU is in violation of Title IX due to “knowingly and willfully having falsified, concealed, and covered up materials by fabricating EADA (Equity in Athletics Data Analysis) athletic participation numbers.”

“The institution (OSU) has overstated its track and field, counted male participants as female athletes on Women’s Basketball, Soccer teams,” the complaint states.

When asked about the complaint, OSU Title IX Coordinator Kim Kirkland deferred to Steve Clark, vice president of University Relations and Marketing, for any questions regarding Title IX.

“We are aware of this complaint, which was only brought to our attention when the complaintant sent an email to me containing an attachment related to OSU and another related to a university in another state (WSU),” Clark said.

“We take any Title IX concerns seriously,” Clark added. “As a result of receiving this complaint, we are looking into the allegations.”

As of now, the Department of Justice has not opened an investigation. However, OSU is prepared to respond if it does, Clark said.

“As for this complaint, we have not heard from any agencies regarding this,” Clark said. “We will cooperate with the Department of Justice and the Office of Civil Rights, if they open an investigation.”

The Complaint

Rossmiller’s complaint alleges OSU does not meet the legal requirements of Title IX.

Title IX was one of the first major legal steps to eliminate sex discrimination from schools. The act prohibits sex discrimination in any educational institution or program that receives federal funding. This act extends to all functions of an educational institution which receives federal funding (including OSU), such as admission, scholarships and athletic participation.

If educational institutions do not comply with Title IX, they could face consequences such as withdrawal of federal funding or paying damages.

In order to comply with Title IX’s athletics qualifications, an institution needs to pass a three-prong test which was established by the Supreme Court through Cohen v. Brown University in 1993. An institution must show that it is complying with at least one of the prongs in order to meet the requirements of Title IX. Contact sports, such as rugby, football and wrestling, are exempt from Title IX requirements.

The first prong requires that the sport opportunities provided for students are substantial and statistically proportional to the sex demographics of the school’s population.

In the complaint, Rossmiller alleges OSU does not pass this prong because the number of collegiate athletic opportunities for women is less than the number of women attending OSU, therefore is not statistically proportional.

“The 2015-16 participation gap (the difference between the percentage of women enrolled and the percentage of athletes who are women) of the college was 5.3 percentage points,” the complaint states.

This participation gap, alleges the complaint, is due to a false inflation of women’s athletic participants and a false inclusion of male practice players into the total number.

“Women’s track is overstated by approximately 68 members, and 16 male practice players counted as women collegiate athletes,” Rossmiller said via email. “Removing those 84 fictitious participants, OSU should not be showing a surplus of 30 female athletes, but rather the true hidden disparity.”

Rossmiller claims OSU’s true athletic rosters consists of 294 male athletes vs 208 female athletes, or 58.5 percent male vs 41.4 percent of female participation for the 2016-17 academic year.

If true, this would be in violation of Title IX because the rosters are not proportional to the overall student body. As of fall 2016, the OSU student population consisted of 53.3 percent male and 46.7 percent female. These numbers slightly varied at the end of the academic year, with 53.1 percent male and 46.9 percent female reported spring term 2017, according to the OSU enrollment summary.

“OSU’s non-compliance is ongoing and being covered-up,” Rossiller said via email. “Oregon State University needs to stop breaking federal law and screwing the majority of its student body that are women.”

Several universities across the country have or are counting male practice players as female participants on official roster data.

Male practice players are listed in OSU’s Equity in Athletics Data analysis: 9 male players on the women’s basketball team, 9 male practice players on the women’s soccer team and 7 male practice players for track. However, Rossmiller states these numbers were included in the total number in female participants in order to inflate the number.

OSU received 159 Title IX reports in the 2016-17 academic year, however none were athletic participation disparity related, according to the Office of Equal Opportunity and Access annual 2016-17 report.

History of Title IX complaints

Rossmiller has filed thousands of Title IX complaints against educational institutions in the U.S., according to a Seattle Times article in August 2017. One of Rossmiller’s complaints was filed against the University of Washington, alleging the institution claimed women were participants on the crew team although some of them never practiced or competed.

This complaint led UW to change its method of counting female participation on its rowing team in order to comply with Title IX.

Rossmiller also filed a complaint in 2014 with the U.S. Department of Justice alleging around 120 California educational institutions were failing to provide adequate opportunities for female athletic participation.