San Diego State athletes band together in Title IX fight: 'If women want equality, they have to sue'

Editor's note: This story has been updated to include a clarification.

SAN DIEGO -- The notification that San Diego State was cutting its women's rowing program was delivered, like most bad news in 2020, in a Zoom meeting.

Madison Fisk sat at a desk in her bedroom in the off-campus house she shared with several teammates in November 2020 and listened to her coach explain that their scholarships -- if they had them -- would still be honored, but there would be no team for her senior season. There would be no races or regattas, no team bus rides, no 5 a.m. sunrise workouts. She would no longer have the soaring sensation of a boat in rhythm, nothing to launch her pulse into her throat for those few cherished seconds when she stared back at the taut, determined faces of her closest friends and waited for their oars to hit the water.

Fisk was a coxswain in the Aztecs' top boat, and as such considered herself an extension of their coach on the water.

"While rowing is not my entire identity, it is the thing that makes me the happiest," she said. "I loved being part of something bigger than myself. But more than that, I loved the inexplicable feeling of collectively surrendering to an unknown outcome. It is the moment before the starting gun, the beep, the whistle, and it feels like your heart is on fire. It feels a lot like purpose."

Fisk struggled to pay attention as her coaches walked the team through the logistics of their impending demise. One by one, her teammates' faces in the gallery view on her screen were disappearing, switching to tiny black boxes as they chose to absorb the news with a degree of privacy. She stared back at the window gone dark and tried to figure out what to do next.

San Diego State rowing was one of more than 100 Division I college sports teams that schools have attempted to eliminate since the pandemic began in 2020. And like Fisk and her teammates, many of the impacted athletes quickly turned their energy toward finding a way to save their programs.

Some of them, more than a dozen teams at different schools across the country, sought help from Title IX -- the 50-year-old gender discrimination law that has dramatically reshaped women's sports in America. They hired lawyers to argue that schools already out of compliance with Title IX requirements could not cut any team that would spin them further away from equality.

Those efforts, widely successful, cast an unintended spotlight on a reality that has long been ignored in college sports. A half-century after Title IX was passed and decades after the specifics of what it protects for college athletes were settled, an eye-opening number of the country's richest colleges are failing to follow the law. While pinning down a precise number is difficult, experts in Title IX law and college sports administration agree it's safe to say more than half of Division I schools are failing to follow the law -- and some believe that number could be as high as nine out of every 10.

"It's shocking," Fisk said. "I mean, the number is shocking, but the information definitely isn't. I think it's kind of embarrassing, honestly."

Fisk and her teammates saw the success that other recently cut teams were having with Title IX arguments. Eventually they would gather 17 women who played for the Aztecs and file a lawsuit asking their school for $1.2 million in damages, but first they had to find a lawyer.

Five hundred miles north in a home office in Oakland, Arthur Bryant was in the midst of a professional renaissance in the fall of 2020. The 67-year-old attorney had spent the bulk of his career building a 2,700-member nonprofit legal advocacy group now called Public Justice. He stepped down from his role as executive director in May 2019 in hopes of finding a cause that could land him back in the litigation trenches.

Bryant did not leave his former post with the intention of diving directly back into what was to him the old and familiar territory of Title IX. But when the college sports dominoes tipped over by the pandemic led to a surge in cases that were using the 50-year-old law, he was as well-equipped as any attorney in the country to navigate its nuances and put its power to use.

Title IX stretches far beyond sports, but when applied to college athletes it demands that schools strive for gender equity by meeting three main requirements: equal financial aid, equal opportunities and equal benefits. There are multiple ways in which a school can show that it's complying with Title IX in some of those areas, making it difficult to calculate exactly how many are following the law without a thorough case-by-case analysis for each college. Some of that assessment requires subjective judgments about what constitutes an equal benefit or whether a school is reasonably meeting a demand for different sports opportunities. That ambiguity is a part of what has bred the widespread lack of compliance.

The financial aid prong of the law is the most straightforward and requires that scholarship dollars are distributed proportionately: If 60% of your athletes are women, then 60% of your athletic scholarship dollars need to go to women. According to data gathered by the Department of Education, last year 109 of the 348 (31.3%) athletic departments in the NCAA's Division I failed to meet that standard.

The participation prong of the law is evaluated using a three-part test. A school is following the law if it offers roster spots that are proportionate to its student body gender makeup (i.e. if 55% of its students are women, then about 55% of its roster spots have to be on women's teams). If those numbers are out of proportion, a school can also show it is compliant if it can demonstrate that it is actively working toward correcting the imbalance or if it is "fully and effectively accommodating [the] interests and abilities of the underrepresented sex."

Those last two parts of the participation test require individual analysis and make it difficult to use data to determine how many schools are complying with the law. However, according to the Department of Education data, more than 90% of Division I schools fail the first part of the three-part test.

"What's really the disturbing truth of this is that this law has been in place for 50 years and almost every college and university is still discriminating against its women athletes," Bryant said.

In San Diego State's case, the university's president and athletic director explained when announcing the end of the rowing program that they actually needed to drop a women's sport to make sure their athletics head count more closely matched the gender makeup of the student body. While Title IX has largely been used to fight for increased opportunities for women in sports, a school can also be out of compliance with the law if it is not offering equal athletic opportunities to its men.

However, according to data gathered by the Department of Education, San Diego State was also failing to provide proportionate athletic scholarship money to its men and women. While 57% of its athletes were women during the 2020-21 school year, only 51% of scholarship dollars went to women's teams.

San Diego State declined to answer specific questions about the ongoing case. A university spokesperson provided ESPN with a statement that said, in part, that the NCAA places limits on the number of scholarships it can provide for each sport, which prevents the school from simply awarding more financial aid to its women's teams.

"The truth is that SDSU awards approximately 95% of all possible scholarships permitted under NCAA rules for both its men's and women's teams, with the remaining fraction explained by legitimate non-discriminatory reasons within SDSU coaches' discretion," the statement said. "NCAA rules prohibit all schools, including SDSU, from giving unlimited athletic scholarships. To exceed these limits, as requested by this suit, would make student-athletes ineligible to compete."

NCAA rules cap the number of total scholarships a school can give out per sport -- 20 for rowing teams, 11.7 for baseball teams, 14 for women's soccer, for example. The particular sports San Diego State sponsors appear to make it difficult to follow NCAA rules while providing equal financial aid to their women athletes.

Bryant said in one of his legal filings that San Diego State is responsible for sponsoring sports that allow it to provide equal financial aid to men and women on those teams. He said "compliance with NCAA limits does not authorize or permit its violation" of the law.

Kaitlin Heri first heard about the possibility of a Title IX lawsuit through friends at school who were members of the rowing team. Heri is a pole vaulter for San Diego State's track and field team -- a three-time Mountain West champion who tied the second-highest vault mark in school history this May. At the start of her final year on campus, she spread word to several of her teammates that her friends could use some help.

In September, San Diego State told Bryant and local attorneys in San Diego that the former members of the rowing team didn't have standing for a legal action that would force the school to revise their treatment for current and future athletes. To file a lawsuit on behalf of current and future athletes, the group of plaintiffs must include at least some current athletes.

Carina Clark was also heading into her final year with the track team when she learned about the rowing team's efforts from Heri. She said contemplating the case helped open her eyes to some of the unequal treatment that she had taken for granted as a woman athlete -- fewer athletic trainers than the men's team, differences in their locker room and the meals they received. After consulting with her parents, both of whom were former college athletes, and talking with Bryant in September, she decided to join the rowers and several of her own teammates as plaintiffs in the suit, which was officially filed in February.

"I knew a lot about what happened to the rowing team and how upset they were," Clark said. "It was great that we could also help them while helping future athletes at our school."

Clark and most of her teammates who joined the suit received financial aid that amounts to partial scholarships during most of their years competing for the track team. They reasoned that if San Diego State had been providing a proportionate amount of financial aid to its women's teams, they might have been able to get more scholarship dollars.

"I think that I definitely would've gotten a lot more money my junior and my senior year," said Heri, who received a 50% scholarship during those seasons and a full ride this year.

Heri and Clark knew they might be taking a risk or inviting ridicule by joining the lawsuit. Their team wasn't being cut. Clark said they were confident the legal process wouldn't distract them from trying to defend the team's outdoor track conference title, but they didn't know what kind of reaction they were going to get from their teammates, classmates and coaches.

"I felt a little bit scared," Clark said. "It's a feeling of not wanting to be seen as ungrateful or greedy. When in reality, you're just asking for equal treatment. I've had great experiences at this school. It's changed me for the better. I'll take the things I've learned here with me throughout my life, but there's always changes you can make and improve things for those behind you."

Some coaches were supportive, others were not, according to the athletes. Heri said her team's head coach, Shelia Burrell, mentioned the lawsuit during a team-wide Zoom meeting shortly after it was filed. Heri said Burrell told the team it was an unnecessary distraction and that she was disappointed in the women who were involved. Burrell and San Diego State did not respond to questions about the incident, which had prompted Bryant to add a retaliation claim to their ongoing lawsuit.

Bryant said the apprehension felt by athletes such as Clark and the potential for negative feedback from coaches are a big part of the reason why so many schools remain out of compliance with a 50-year-old law. To file a lawsuit against a school for Title IX compliance, the plaintiffs must include current students who can argue they are negatively impacted by the lack of equality. Athletes who learned their teams would soon be cut during the pandemic had a rare incentive to sue. But in most cases, athletes don't want to risk the awkwardness or risks of picking a public fight with their school.

"No one goes to college planning to sue their school," Bryant said. "The lesson of Title IX's enforcement in 50 years, sadly, is if women want equality, they have to sue. No one else is going to do it."

Bryant was a freshly minted Harvard law graduate living in Philadelphia in 1985 when he was asked to take over the role of lead trial counsel for a gender discrimination lawsuit filed against Temple University by badminton player Rollin Haffer and several other athletes on campus. Haffer's case was the first time that a college athlete took her school to trial for a Title IX violation.

After three weeks in court, and before a judge could rule on the case, Temple agreed to settle the suit and improve its women's sports program. In the years that followed Bryant helped lead legal efforts in several other Title IX disputes against universities such as William & Mary, Brown and Oklahoma. He said in most cases he never needed more than the threat of an impending lawsuit to persuade schools to improve conditions for their women athletes.

"I wasn't sure what would happen exactly after Temple, but I thought the word was out that schools had better pay attention to this closely," Bryant said. "I expected 35 years ago that by now all the schools would be in compliance."

Bryant was just settling into his new role with the Bailey Glasser law firm in 2020 when a wave of schools started cutting sports programs during the pandemic. Over the past two years, he has taken on clients from 10 colleges who were hoping to use Title IX to save their teams. He has two pending cases, but to date Bryant says he's undefeated in more than two dozen Title IX fights during his career. Like in the 1980 and early '90s, Bryant said the majority of colleges in the past two years agreed to reinstate teams and to develop a plan to reach Title IX compliance with just the threat of litigation.

The success rate that Bryant and other attorneys have had in the past couple of years in athletics Title IX cases speaks to the overall problem, says Donna Lopiano, a longtime college sports administrator who now teaches sports management and runs a sports management firm.

"They're out of compliance, and they all know that they're not in compliance," Lopiano said when asked why schools quickly acquiesce to legal pressure. "It's fish in a barrel."

Lopiano, Bryant and other Title IX advocates believe schools would be more likely to get into compliance if someone other than the athletes were willing to hold them accountable. Despite naming gender equity as a core principle in its constitution, the NCAA does not require schools to comply with Title IX as a condition of its membership in the association.

An NCAA spokeswoman said the association "supports" its members with education and programming about Title IX, but she did not answer a question about why the NCAA does not make compliance with the law a part of association rules.

The NCAA's member schools would have to vote to make Title IX compliance a requirement for all schools, and Lopiano says most aren't motivated to do that because they know they're not currently in compliance. She suggested Congress should intervene by amending the law to force associations such as the NCAA or conferences to make Title IX compliance a part of their membership requirements.

The Department of Education, which is tasked with enforcing Title IX through its Office for Civil Rights, collects data from collegiate athletic departments to monitor its compliance. It also investigates schools for violations if someone files a complaint. The federal government, though, has never proactively filed a lawsuit against a school for failing to follow Title IX law.

Secretary of Education Miguel Cardona told ESPN his office is focused on trying to build a culture of compliance because relying solely on the OCR's limited number of investigators to enforce the law will never be enough. Cardona acknowledged there is still a great deal of work to be done, but said everyone including students, families, educators and administrators has to be responsible for pushing for more change.

"It really is all of our effort," Cardona said. "... It shouldn't be that the federal government has to watch, it's everyone's job. So promoting Title IX coordinators, communicating with families, with students that they're there to support them is part of the strategy we have to make sure that all students have access."

Bryant argued that just one proactive lawsuit from the federal government filed against a major university athletic department could have a big impact in getting others to take their responsibility to provide equal treatment more seriously.

"It would be great to build the culture, but he's kidding himself if he thinks that's what's going to do it," Bryant said. "Does the police officer by the side of the road as people are going by at 100 miles per hour say, 'I'm trying to build a culture where people will stop speeding'? No. You pull over people violating the law and you hold them accountable. ...The way you build the culture of compliance is you enforce the law."

Without active enforcement, the burden to hold colleges accountable has been carried almost exclusively by athletes who make the decision to sue their schools.

"That's what makes it so unfair," Lopiano said.

Madison Fisk graduated from San Diego State last month with a degree in economics. She'll start work on a master's degree next year at Loyola Marymount, where she has a scholarship from the rowing team for her final year of eligibility as a college athlete. It's likely that she'll still be in a legal battle with her alma mater when she arrives on her new campus.

Fisk, Heri and Clark all said they added the extra stress of a lawsuit to their final semester on campus because they wanted to do something to help the women who will follow after them.

"This is something that could last beyond me and make an impact for decades to come," Clark said.

Their plan to try to effect change includes a new wrinkle to their legal battle. Bryant and his clients are pushing to make San Diego State the first school to pay monetary damages for their alleged lack of compliance. In their lawsuit, the 17 plaintiffs argue that women athletes on campus would have received an additional $1.2 million in financial aid if the school had been following the law. The suit asks the university to pay that amount to its plaintiffs.

Bryant said he hopes that forcing a school to cut a seven-figure check might do something his past Title IX victories have not been able to accomplish: persuade other schools to change their ways before facing a similar lawsuit.

"What we have learned in all of the decades of doing Title IX litigation is that what these schools often care most about is money." Bryant said. "Apparently just making them comply going forward presents no real risk. [Other schools] can just keep violating until somebody sues them and makes them comply. But if they're going to have to start paying for the money they're cheating women out of, hopefully they'll say, 'We don't want this risk. We don't want to have to pay the money going forward. Let's fix it now.'"

For Fisk, the financial part of her lawsuit is an "unfortunate" but necessary measure because "clearly the consequences aren't harsh enough" for schools that violate Title IX. Their case is one of several battles that will be working their way through the legal process later this month when past, present and future women college athletes celebrate the significant progress ushered in by the law in the last half-century. Fisk said she is aware of both the large steps forward and the distance yet to be covered to reach equality. Her goal -- her new purpose out of the boat -- is ambitious and simple.

"I wanted our team to be the last one that was cut," Fisk said. "I didn't want to see any other athletes stripped of their opportunities the way we have."

ESPN investigative reporter Paula Lavigne, producer Lyndsey Armacost and researcher John Mastroberardino contributed to this report.

Clarification: This story has been updated to clarify that while Title IX has largely been used to fight for increased opportunities for women in sports, a school can also be out of compliance with the law if it is not offering equal athletic opportunities to its men.