Cheerleading and Title IX

The modern perception of cheerleading has commonly existed in two role characterizations: the supportive eye-candy for male sports demanding an attractive form and enthusiasm and the athletic aerial gymnastics demanding coordination and cooperation. While the former role will more than likely always persist in society, many cheerleading proponents want the latter role to nurture a new respect for the required athleticism of cheerleaders. Further more proponents believe that a critical element to this role transition is recognition of competitive cheerleading as an official NCAA sport. Whether or not such a desire is appropriate demands analysis.

To begin proponents already have one strike against them in the form of the court case “Biediger v. Quinnipiac University”. In March 2009 the Quinnipiac University women’s volleyball team sued the university to prevent the termination of their program in favor of competitve cheerleading. The crux of the case revolved around whether or not the new cheerleading squad would qualify as a viable athletic opportunity under Title IX. In July 2010 U.S. District Judge Stefan Underhill ruled that the competitive cheerleading program proposed by Quinnipiac University was not a valid substitution for the volleyball program for Title IX compliance. Due to this ruling, the first and still only judicial precidence with regard to collegiate competitve cheerleading, termination of the volleyball program would have left Quinnipiac University below their Title IX requirements. Thus, Quinnipiac University currently maintains their volleyball program and have continued their competitive cheerleading as well.

Based on this ruling the first step proponents need to address is the reasoning used by Justice Underhill to come to the conclusion that competitive cheerleading did not meet the requirements to qualify as a sport under Title IX. The core statement of Title IX is:

"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..."

Title IX extends to elements beyond athletics in a collegiate environment, but most legal challenges invoking Title IX involve athletics. Athletic compliance with Title IX typically involves meeting one of three elements (commonly referred to as prongs):

1. Prong one - Providing athletic participation opportunities that are substantially proportionate to the student enrollment;
2. Prong two - Demonstrate a continual expansion of athletic opportunities for the underrepresented sex;
3. Prong three - Full and effective accommodation of the interest and ability of underrepresented sex;

While any of the prongs can be used to meet Title IX compliance, prong one is almost exclusively used because of its quantitative nature over the more qualitative elements, which dominate the second and third prongs. This quantitative nature of prong one compliance could explain some of the attractiveness of competitive cheerleading to colleges because of the typical high participation to overhead cost ratios.

Before discussing the deficiencies cited by Justice Underhill, it is important to address an element to the argument that is not directly applicable to the core argument regarding Title IX compliance, but could be a diction distraction. Some individuals question whether or not competitive cheerleading can be regarded as a sport. Typically two arguments are used to classify whether or not a particular activity is a sport. First, does that particular activity invovle significant physical movement. Second, is the outcome of the activity dependent primarily on the merits of those participating [does not use outside officials (judges) to determine the outcome].

Competitive cheerleading can be classified as an athletic physical activity which uses judges to determine winners and losers; it passes the first element, but not the second. However, while some believe the subjectivity of judges eliminates the ability to classify an activity as a sport it is difficult to justify such thought when transparent and universal criteria is used for judgment. Think of it similar to gymnastics in that there are transparent assigned difficulty rankings to a participant’s program; if scoring by the judges were more transparent (rationalities for why certain points were subtracted) then it would be difficult to argue that such a system does not conform to the both points of contention. For example a ‘bad’ ruling by a judge in a valut jump could be viewed in the same light as a ‘bad’ foul call by an official in basketball.

With the issue of ‘sport or not a sport’ out of the way, why did Justice Underhill rule against competitive cheerleading as a Title IX valid athletic opportunity? The key issue is what is considered a ‘genuine’ opportunity to participate in a varsity sport. In addition to meeting one of the aforementioned three prongs there is also another element that must be met established by the Office of Civil Rights 2008 letter: the sport must be recognized by the NCAA as a ‘legitimate’ sport and participants in that particular sport must receive experiences similar in nature to those participating in other sports. At Quinnnipiac University or any university, competitive cheerleading does not meet either of these two elements. This lack of compliance is exactly what Justice Underhill used for his reasoning.

While the purpose of the squad was determined to be competitive over strictly entertainment and the team followed NCAA rules with regards to funding, coaching structure, medical clearance, training, access to facilities and support staff, all of these elements were essential to demonstrate similar varsity experience, the competition itself failed. Despite Quinnipiac University and others establishing the National Competitive Stunt and Tumbling Association (NCSTA) as a planned governing body (later renamed the National Collegiate Acrobatics and Tumbling Association (NCATA)) at that time the NCATA was still a hollow entity with no real inter-collegiate association and no system of governance, strategy or scheduling power with an ability to impose consequences for non-compliance.

This lack of organization and structure was on full display for the court during the Quinnipiac competitive cheerleading ‘season’ in 2009-2010 when the competition faced what amounted to 1 university competitive cheer squad (Maryland), ‘all-star’ teams from private gyms without university affiliation, entertainment-based (‘sideline’) teams and high-school teams. In addition to the myriad of different types of cheerleading squads that were opponents, various different scoring systems were used among all of the competitions. Clearly other varsity collegiate sports do not have their teams compete against high-school teams or non-university affiliated teams that would count officially towards their record using different rules per competition.

Based on interpretation of Title IX and the reasoning of Justice Underhill’s ruling supporters of competitive cheerleading should be encouraged because all that appears lacking is the number of universities competing and an official organizational structure. The chief problem between these two elements is the ‘go first’ mentality. While some universities, most notably the University of Maryland and University of Oregon, have attempted to make competitive cheerleading a sport, their action has not catalyzed significant followers in the collegiate community. To deal with this problem universities must coordinate their actions both on establishing competitive cheerleading programs and developing the proper scheduling and rule structure which will govern the activity. The NCATA is expanding in this regard, but there are some reservations about its sanctioning deferment to USA Gymnastics as somewhat of a ‘cop-out’.

Unfortunately for competitive cheerleading proponents, neither one of the above two issues cited by Justice Underhill is the major problem. Recall that Quinnipiac University established competitive cheerleading as a replacement for women’s volleyball, not as a supplement for female sports in the university. Once again the issue comes down to money. Any realistic scheduling structure for an official ‘season’ of cheerleading will demand the inclusion of public universities. However, with state-based monetary support for public universities closer to a floor than the average it is likely that universities will have to act similar to Quinnipiac University, competitive cheerleading will have to replace another female sport. The probability that a large number of universities will be willing to undertake such an action, which more than likely will lead to more lawsuits, does not bode well for competitive cheerleading in the near future. For example the NCATA recently had their first ‘National Championship’ (again not one sanctioned by the NCAA) with six participating universities: Maryland, Oregon, Quinnipiac, Baylor, Fairmont State and Azusa Pacific. Clearly six teams does not a conference make let alone an entire sport.

That said, interestingly enough proponents of competitive cheerleading may have an unusual ally. Recall that this blog has demonstrated the futility of arguing that collegiate football and male basketball players should receive additional funds apart from their scholarships. One of the major obstacles for paying college players is the equal funding protection offered under Title IX. Could Title IX limitations be eliminated if this additional pay for male college athletes in high revenue grossing sports was offset by the establishment of another female sport, perhaps competitive cheerleading? Note that based on current funding concerns it is more than likely that the funds for both player salaries and competitive cheerleading would have to come from outside sources (boosters). It is certainly an issue that warrants further investigation, especially the issue that under Title IX only the same dollars need to be spent within athletic scholarships.

However, it must be mentioned that other significant obstacles remain to paying college players including the insistence by the NCAA that their players are amateurs and should not be paid like professionals. Overall as it currently stands unless a large number of universities in most of the major collegiate athletic conferences are willing to terminate existing women sports that are already officially recognized as sports by the NCAA in favor of competitive cheerleading, it does not look promising that competitive cheerleading will become an officially recognized NCAA sport in the near-future.