 Note: This article is an excerpt from our Winter 1987 newsletter, written at a time when we were called the Northwest Women’s Law Center.
Blair v. Washington State University. If you’ve been a Law Center member for several years, you are probably familiar with this case name and some of its history. You may know that it has something to do with discrimination in WSU’s athletics program. But you may not know how the story has ended. The Law Center is proud to announce that it won a decisive victory, which, although failing to make front page headlines, will help assure equality of opportunity for women athletes in our state, and help set precedent for other programs in other states.
First, a short background refresher. Eight years ago, in late 1979, the Law Center was approached by a number of female athletes and their coaches regarding the disparity of treatment between the men’s and women’s athletics programs at WSU. After much discussion, it was decided to take the case, and the suit was filed in Whitman County Superior Court.
Mary Ellen Hudgins, our litigation director, then began a lengthy factual discovery process, finding inequality in women’s sports abundantly clear at every turn. Take locker rooms: While each men’s athletic team had its own separate locker room (complete with Cougar color-coordinated decor and personalized dressing tables and lockers), the women’s athletic teams had a single locker room which they shared not only with each other but with women’s physical education students and visiting teams as well. Or take clothing and equipment: The women received no practice clothing, and their game uniforms and equipment were old or personally provided by the athletes themselves. Or the travel budget: Female athletes had to drive themselves to their away games, and were then expected to cast off their fatigue and “win one for the Cougs.”
These and countless other disparities in treatment became apparent throughout numerous trips to Pullman. Many of the disparities were glaring in allocating student and activities fees: $11 per student was allotted to men’s athletics in the 1977-79 academic years, while $1.25 was allocated to women’s athletics during the same period. Athletic scholarships, recruitment funds, and administrative support services for women athletes were a fraction of those available to male athletes. Other anecdotes were minor but nonetheless telling… like the time the women’s field hockey team was booted off the playing field at the start of an NCAA game so that the band could practice for the next day’s football game. The evidence was gathered through efforts ranging from analysis of WSU’s budgets by economists Catherine Rao and Lowell Bassett, who were retained by the Law Center as expert witnesses, to “war” stories told by the women and their coaches.
Finally, in January 1982, amid a blizzard, the case went to trial. It lasted seven weeks and more than 90 witnesses provided testimony.
Superior Court Judge Faris Rules for Athletes
In March, Superior Court Judge Philip Faris rendered his oral opinion. He ruled that WSU had discriminated against women in its athletics program in violation of both the State Law Against Discrimination and the Equal Rights Amendment. He awarded damages to the athletes to compensate them for practice apparel and uniforms which male athletes had received in contrast to female athletes who had not. Although he rejected plaintiff coaches’ equal pay claim, he awarded damages to the plaintiff coaches to compensate them for not being provided complimentary cars as bad the men’s athletics coaches.
Regarding injunctive relief, the trial court devised what it termed an “equity” formula that provided that women’s athletics would receive no less than 37. 5% of the total athletic budget excluding all support given to the football program and minus revenues generated by each sport. (It did not escape plaintiffs’ attention that under this formula, they were better off prior to the start of trial than under the court’s decision.) Likewise, WSU was ordered to increase athletic participation opportunities to women students on a graduated basis until the percentage of female athletes reached the same percentage of the female undergraduate population, so long as the percentage of female athletes did not fall below 37.5% of the total number of athletic opportunities, minus football and its 125 athletes.
The court also ruled that plaintiffs were required to file a claim for damages against the state under the Tort Claims Act, characterizing discrimination by the state as a tort.
Finally, the court significantly reduced the amount of attorney’s fees awarded to plaintiffs because they were represented by a public interest law organization. The court reasoned that, unlike forprofit law firms, a public interest firm is not motivated to be efficient or to minimize duplication.
NWLC Appeals Football Exclusion
The Law Center, on behalf of plaintiffs, appealed to the Washington State Supreme Court the trial court’s exclusion of football, its reduction of attorney’s fees based on the inherent inefficiency of public interest law organizations and its application of the Tort Claims Act to a discrimination suit againist a state agency. WSU cross-appealed the award of attorney’s fees on other grounds.
In August, 1987, the Washington Supreme Court reversed the exemption of football, affirmed the application of the Tort Claims Act and reversed on the issue of attorney’s fees, sending the case back to the trial court for a determination of a new fee award.
Football Is Not Exempted Under The State ERA or RCW49.60
The Supreme Court found that the trial court had abused its discretion in excluding football from its calculations in determining an
equitable distribution of participation opportunities, scholarships and nonrevenue funds. The court stated, “To exclude football, an all male program, from the scope of the Equal Rights Amendment would only serve to perpetuate the discriminatory policies and diminished opportunities for women.” Rejecting the trial court’s rationale that football is unique among collegiate sports, operating for profit under business principles, the Supreme Court noted that “It is stating the obvious to observe that the Equal Rights Amendment contains no exception for football.” Moreover, the court recognized that to exclude football “would prevent sex equity from ever being achieved since men would always be guaranteed many more participation opportunities than women.”
While finding that football must be included in calculating the number of participation opportunities and scholarship allocations, the court agreed with the lower court that state law did not prohibit each sport from retaining the revenue it generates. The court emphasized, however, that its decision on this matter in no way modified WSU’s obligation to achieve sex equity, and reiterated the importance of the trial court’s order requiring WSU to undertake additional promotion of women’s sports and to develop their revenue-producing capabilities.
Tort Claims Act Is Applicable To Discrimination Complaints Against the State
The Supreme Court upheld the trial court’s ruling that discrimination is a tort and that RCW 4.92. 110 required plaintiffs to file a tort claim with the state before filing their lawsuit. In analyzing the legislative histories of both RCW 4. 92 and RCW 49.60, the court determined that neither the purposes nor the procedures of the respective statutes is in conflict since the intent of RCW 4.92 is to notify the state of pending tort actions and the intent ofRCW 49.60 is to remedy discrimination. The court thus concluded that “this court should fulfill the purposes of both.”
Attorney’s Status As Employee Of A Public Interest Law Organization Is Not A Basis For Reducing A Fee Award Under RCW 49.60.030(2)
The Supreme Court found that the trial court impermissibly considered the plaintiffs’ public interest representation in calculating the fee award based on the lower court’s finding that “a lack of efficiency and duplication of effort are inevitable when attorney’s are employed by a public service law firm which operates on a non-profit basis without the safeguards built into a practice of law for profit.” The Supreme Court acknowledged that in determining a reasonable fee award, a trial court may consider a number of factors, such as the level of skill required by litigation, the time limitations imposed, the amount of potential recovery, the attorney’s reputation, and the undesirability of the case. However, relying on Blum v. Stetson, 465 U.S. 886 (1984), the court agreed with plaintiffs that the trial court abused its discretion in even considering the plaintiffs’ public interest representation. It remanded the issue back to the trial court with instructions that it ignore the nonprofit status of plaintiffs’ counsel in determining a reasonable fee award. The Supreme Court also awarded plaintiffs fees on appeal.
Responding to the defendants’ argument that the fee should be reduced by the percentage of WSU’s success, the Supreme Court upheld the lower court’s determination that plaintiffs were the prevailing party per the U.S. Supreme Court’s ruling in Hensley v. Eckerbart, 461 U.S. 424 (1983). There, the court held that a party prevails when it succeeds on any significant issue which achieves some benefit the party sought in bringing the lawsuit. Finding that plaintiffs here had prevailed on many significant issues and that the successful and unsuccessful claims were inseparable, the Washington State Supreme Court held that the trial court did not abuse its discretion and that plaintiffs were entitled to all fees awarded.
Costs And Expert Witness Fees Were Properly Awarded
On Appeal, defendants challenged the trial court’s award of costs to plaintiffs based on RCW 4.84.010 which limits recoverable costs to those defined in the statute. The court, noting that it has not decided the scope of allowable costs under RCW 49.60 previously, upheld the lower court and adopted the federal rule allowing a more liberal recovery of costs by a prevailing party in civil rights litigation.
Finally the court rejected defendants’ claim that plaintiffs’ expert witness fees were contingent and thus violated Disciplinary Rule 7-109(C) of the code of Professional Responsibility. The court found that where, as here, expert witnesses ultimately expected to be paid, their willingness to temporarily defer their fees is permissible under RCW 49.60.
The final chapter has not yet been written. Currently, the Law Center is seeking a cooperating attorney to monitor enforcement of the trial court’s judgment and decree as well as the Supreme Court’s decision. We are pleased to have made “good law” upon which women athletes in our state universities may rely to ensure that they receive equal opportunities and equitable treatment in their institutions’ intercollegiate athletics programs. But the story cannot end until we are assured that the provisions of the judgments and the spirit of the law are being fully implemented at WSU.
Kudos to Mary Ellen Hudgins, Anne Donnelly, Judith Lonnquist, Susan Graber, Joyce Bernheim, Laurel Terry, Ed Reeves and Ester Greenfield, who, as plaintiffs’ attorneys, have earned a permanent place in the NWLC’s “Hall of Fame” for their successful efforts.
About the author: Marilyn Endriss is an Associate with the Law Offices of Judith A. Lonnquist, P.S. She, too, was a member of the team of attorneys who litigated Blair.
