In Title IX dispute, EMU offers to add lacrosse instead of softball; athletes cry foul

While officials at Eastern Michigan University have reinstated women's tennis, they still are balking at reinstating softball, arguing the program is too cost-prohibitive and does little to help bring the school more in compliance with Title IX.

Instead, the Ypsilanti-based university has proposed adding women's lacrosse instead.

Athletic director Scott Wetherbee, in a three-page letter sent late last month to federal Judge George Steeh, argued that adding a lacrosse team instead of softball would not only be cheaper for the university, but also add to the school's female student-athlete numbers, since lacrosse rosters are significantly larger than softball rosters.

"This approach allows us to provide more athletics participation opportunities for female students, in the most efficient and sustainable manner possible with regards to financial resources," Wetherbee wrote.

Lawyers for two female student-athletes who sued after the university announced the elimination of four sports last spring aren't buying Wetherbee's argument and have accused the university of stalling in order to get its desired result. As the court battle enters its ninth month, no matter the end result, there will be no Eastern Michigan women's tennis or softball this competitive season.

In late September, Steeh of the U.S. District Court Eastern District of Michigan, in Ypsilanti, ordered the reinstatement of women's tennis and softball, writing in the preliminary injunction that "financial hardship" isn't an excuse to bypass the spirit of Title IX — legislation that dates to 1972 that, in part, demands equal opportunities for male and female athletes, based on a school's gender breakdown.

Two female student-athletes, one tennis player and one softball player, sued in June, after the university announced in March it was cutting the two women's programs plus men's wrestling and men's swimming and diving, in an effort to save the athletic department an estimated $2.4 million annually.

Lawyers for the athletes and the university have held several conference sessions to discuss the best path forward since Steeh issued his ruling, and initially both sides reported good-faith negotiating and progress. This fall, Eastern even held informal meetings for athletes interested in playing tennis or softball, seemingly a sign reinstatement was in the works. (The tennis meeting drew one participant, softball 18.)

Then, in November, Eastern announced it was bringing back tennis for the 2018-19 season — with a return to the Mid-American Conference scheduled for 2019-20. It rehired the former coach, Jayson Wiseman, but now won't return to competition until the 2019-20 season, since it only has two players on the active roster, one being one of the plaintiffs, Marie Mayerova.

Likewise, even if Eastern brought back softball immediately, it wouldn't be able to play this season, which gets under way this month.

"EMU is throwing every argument it can think of to avoid having to bring its program into compliance, but plaintiffs will not let EMU continue to wiggle out of their statutory obligations," wrote the lawyers for Mayerova and softball player Ariana Chretien, "because getting away with non-compliance for over four decades is more than these women can tolerate and it will not be tolerated any longer.

"... EMU keeps making the same arguments and hoping for different results."

Wetherbee, in his letter, estimates the annual cost for softball at $870,000, and include between 17 and 20 student athletes. He estimates lacrosse would cost $650,000, and include between 33 and 36 student athletes. Either program would be allowed 12 scholarships, to be divided up as the respective coaches see fit. Thus, there would be more out-of-pocket tuition money coming from lacrosse, another financial benefit.

Plus, adding more female student athletes, the university argues, would start to close the Title IX gap. In the 2016-17 filing with the U.S. Department of Education, nearly 60 percent of Eastern Michigan students were female, while less than 45 percent of Eastern Michigan student athletes were female. Wetherbee says that has changed drastically, with 52 percent female as of fall 2018, compared to 45 percent in fall 2017.

"... Re-starting a softball program will not create sufficient female participation to achieve substantial proportionality under Title IX," wrote Wetherbee, who was hired as Eastern's AD in June 2017 — and acknowledged to The News last spring he might've passed on the job if he knew such deep cuts were coming. 

"Thus, the university would be back where it started."

Wetherbee also argues in his letter that it would be easier to maintain a full roster for lacrosse than softball, given the participation trends in the respective sports. (That said, Eastern Michigan is currently the state's only Division I university without a softball team; only three of six, not counting Eastern, have women's lacrosse.) He also argues that with the estimated savings from lacrosse versus softball, the university would be able to add to its female athlete population in other sports, notably rowing and track and field.

The MAC doesn't offer lacrosse, so Eastern Michigan probably would participate in the Southern Conference, of which Central Michigan and Detroit Mercy are members.

Wetherbee did not immediately return a message seeking comment. University spokesman Geoffrey Larcom said, "It's best to let the court filings speak for themselves, given the ongoing litigation. Note that there will, of course, be more court actions." Wetherbee's letter and the university's 17-page objection to Steeh's preliminary injunction were filed Jan. 25.

A lawyer for the plaintiffs didn't immediately respond to a request for comment. But in a 14-page response to Wetherbee's letter and the university's objection, dated Feb. 1, they made their stance clear, calling for Steeh to reject the proposal.

"Colleges and universities across the country have tried to fight efforts to bring their programs into compliance for decades and the courts continue to strike down these meritless attempts," the plaintiffs' lawyers wrote. "... It is time for EMU to avoid taking a long hard look at its athletic department and stop trying to take the 'easy' way out."

tpaul@detroitnews.com

Twitter: @tonypaul1984