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Tuesday, Jun. 18, 2002

This month marks the thirtieth anniversary of the passage of Title IX of the Education Amendments of 1972. As many readers may be aware, Title IX is a federal statute banning sex discrimination in educational programs receiving federal financial assistance.

The anniversary has brought out Title IX's strongest supporters and harshest critics. Accordingly, it has elicited both high praise for its role in advancing gender equity in education, and fierce condemnation for its method of achieving it.

Title IX has been used to challenge gender inequity in a variety of contexts: sexual harassment; pregnancy; school admissions, testing, and scholarships; and, most controversially, school athletics. It is the statute's impact on collegiate athletics that has garnered it its highest praise, as well as its harshest criticism.

Critics have called for amendments of Title IX and its regulations that would make its demand for gender equity - particularly in the realm of college athletics - less strict. Among those critics is the Bush Administration, whose lackluster defense of the statute in a recent lawsuit reveals its utter lack of commitment to gender equity in athletics. (On this issue, the President is perhaps continuing the legacy of his father - who made headlines as vice-president for suggesting in a 1981 speech that Title IX had simply gone too far in the field of athletics).

The Administration and other critics of Title IX, however, are wrong, and should be opposed. Title IX has turned out to be one of the most important piece of protection for women against sex discrimination - and in particular, a crucial way to ensure women's equality in college athletics. Rather than going too far, it has held an important line - a line that should not now be moved backwards.

The History of Title IX and Its Regulations Relevant to College Athletics

In 1975, it was made clear that Title IX applied to athletics, as well as to other aspects of education - and the controversy that has plagued this application of the statute began.

That year, the Department of Health, Education, and Welfare (the predecessor to today's Department of Education) issued regulations to implement Title IX. The regulations required institutions to provide "equal athletic opportunity for members of both sexes."

This general standard was supplemented by ten factors to be considered in determining whether equal opportunity was in fact being provided. The first of these factors - and the one most frequently at issue in litigation - asks "whether the selection of sports and levels of competition effectively accommodate the interests and abilities of both sexes."

In 1995, the Department of Education sent a "clarification" of the Policy Interpretation to thousands of interested parties. The clarification explained, among other things, that although proportionality alone can provides a "safe harbor" for institutions able to demonstrate it, they are also free to comply with the other prongs of the test instead.

The new clarification also said that institutions were authorized, though not required to eliminate teams, or cap team size, as a way of achieving gender proportionality. (For example, eliminating the men's lacrosse team could be a way to address the fact that there was no women's lacrosse team.)

Finally, the clarification said that participation opportunities should be measured based on actual athletes rather than "slots" - a healthy dose of realism that meant schools had to focus on women athletes, not theoretical possibilities that there could be women athletes.

Title IX's Impact on Women's Sports: Overwhelmingly Positive

There has been a dramatic increase in athletic participation of girls and women since Title IX was enacted. Every available statistic bears this out.

For instance, participation by high school girls in varsity sports has risen from one in twenty-seven to one in two-and-a-half. Meanwhile, participation by college female athletes has risen from under 30,000 to more than 150,000. Interestingly, during the same thirty years, participation by male athletes, at both the high school and college levels, has risen as well, though not nearly as dramatically.

While cause and effect are hard to pinpoint, Title IX litigation and administrative enforcement have clearly been important to these developments. However, there are still important areas of inequity.

For instance, an estimated 80 percent of high schools and colleges run athletic programs that do not comply with Title IX. And, of course, men's athletic programs continue to receive much more money for athletic scholarships, recruiting, coaching, and general operations than women's athletic programs do. In addition, female coaches get paid a fraction of what male coaches earn, and only two percent of the head coaching jobs for men's teams.

Title IX in the Courts - Including the Supreme Court

The bulk of Title IX enforcement occurred in the 1990s, after Congress clarified the statute's proper scope. Since then, many schools have been forced to bring their programs into compliance with Title IX (though, as noted above, many still do not comply).

Women have been remarkably successful in Title IX lawsuits and administrative actions, forcing schools to take steps to achieve gender equity. Schools have also made changes in response to self-audits, independent of any complaints or lawsuits.

Again, though, more self-audits and more lawsuits are necessary to address the estimated non-complying 80 percent described above.

More Than Proportionality Alone: Other Ways To Satisfy Title IX

In the popular media, the three-prong test of the Title IX regulations has been reduced to a single idea--a requirement of proportionality. The media also suggests that the only way schools achieve proportionality is by cutting men's "minor" sports--like wrestling, swimming, and gymnastics--in order to bring the overall opportunities for men down to the level of women's.

As noted above, the "clarification" does allow men's programs to be cut in order to achieve equality. But in fact, the reality is quite different - as the fact that male athletes have prospered, rather than being harmed, over the last thirty years can attest.

As the clarification also notes, proportionality is only one way to comply with Title IX. Schools can also comply by showing a good-faith effort to expand opportunities for women. Alternatively, they can show that women's interests and abilities are fully accommodated, even though that means they have significantly fewer actual roster spots or teams. More than two-thirds of the schools involved in Title IX cases before the Department of Education during a recent five-year period chose to comply with one of these alternative prongs, rather than by instituting gender proportionality.

Moreover, for schools who do try to achieve proportionality, only some of them accomplish it by cutting men's teams or capping team size. Two-thirds of colleges and universities have not cut any men's teams at all in their efforts to achieve gender equity. (And many schools have cut both women's and men's teams in certain sports, like gymnastics, wrestling, and field hockey, and replaced them with more popular sports like soccer and track).

But where schools have cut men's teams purportedly to comply with Title IX, those decisions have often been the target of litigation. Male athletes on teams that have been cut have alleged reverse discrimination, claiming that the decision to eliminate their particular team was made solely on the basis of sex.

After all, if the remedy for discrimination were called "reverse discrimination" and forbidden, Title IX would be effectively unenforceable. If cutting men's teams were not sometimes an option, then it would be impossible for schools to cure past discrimination without dramatically expanding their budget for athletics, an option not available to most schools.

This conclusion may sound harsh, but consider the situation. A school has a men's lacrosse team and a men's hockey team, and no women's teams in either sport. It can't afford new teams, so it cuts men's lacrosse and creates women's hockey. Although the male lacrosse players will be understandably aggrieved (and so will would-be women's lacrosse players, who never had and never will have a team), the outcome is more fair than the status quo - and that is because of Title IX.

The Current Assault on Title IX, and the Administration's Failure to Defend It

In February of this year, the National Wrestling Coaches' Association filed a lawsuit against the Department of Education. The Association alleges that the interpretation of Title IX embodied in the Policy Guidance and its subsequent clarification - and still currently in use - is unlawful.

More specifically, the Association argues that this interpretation of the statute authorizes intentional discrimination against male athletes. (Thus, the Association is making the same "reverse discrimination" argument that has failed every time it has been raised before). Based on this argument, the Association is seeking an order declaring that the Policy Interpretation--and the three-part test it propounded--is invalid and unenforceable.

The Bush Administration had the opportunity in this lawsuit to mount a strong defense of Title IX and its regulations regarding athletics. The argument could have been based on law - consider the many suits dismissing similar "reverse discrimination" claims - not just on policy preferences. Yet instead, the Administration filed a motion to dismiss that cited only narrow technical defects in the lawsuit as a basis for throwing it out of court.

The government's brief is carefully worded to avoid any defense of Title IX on the merits. In fact, the implicit message is to the contrary--that the plaintiffs are wrong only in their choice of defendant (they have sued the government, not the schools), rather than on the merits.

That this Administration will not fight to protect Title IX is clear. So those who support the statute - and more generally, who support equality in women's high school and college athletics - will have to fight for it instead, and fight against the Administration if necessary.

The Rhetorical Battle Over Title IX

First, they claim that women are naturally less interested in sports than men. But in fact, the evidence shows that women's interest in sport is not innately fixed, but dynamic and affected by tangible factors such as playing opportunities and available resources - as well as intangible factors like public opinion and culture.

Watching senior women soccer stars triumph, for example, can motivate a freshman high school girl to follow up on her athletic ambitions. If all the seniors had been cheerleaders and homecoming queens, she might have sacrificed the same ambitions to the ever-present urge to fit in. Are women "naturally" less interested in sports, or "socially" less interested? If the phenomenon is social, it can change.

And it has. Consider the eight-fold rise in female athletic participation at the high school level and the five-fold increase at the college level over the last 30 years--the lifetime of Title IX. It is pretty good - indeed, overwhelming - evidence that opportunities create athletes as much as biology does.

Second, critics often claim that greedy female athletes are responsible for the downfall of men's minor sports. (In our previous scenario, for instance, the men's lacrosse team has been sacrificed so the women's hockey team could be created.)

This argument, too, is unfair and inaccurate. It is unfair for the equality reason given above; women's hockey and lacrosse players should not both have to suffer so men's lacrosse players can prosper. It is inaccurate because of, in a word, football.

The greed and excess, both in terms of participation opportunities and resource allocation, endemic to men's collegiate football programs is by far the greatest reason that other men's sports get the sack. Football, with its unnecessarily large number of players and scholarships (an average of 94 per NCAA Division I team, compared with only 53 per NFL team), eats up the lion's share of athletic resources, which adversely impacts both men's minor sports and women's sports.

And when football is the culprit, there is no equality justification for the loss. The men's lacrosse team loses out simply because the brawnier sport wins out. A man who loses his lacrosse team due to emphasis on football should be upset about the gender-policing of his institution, which prefers more "masculine" sports. In contrast, a man who loses his lacrosse team due to Title IX can at least see that it was unfair that women never had such a team in the first place. But schools themselves feed these misperceptions, often expressly citing Title IX as the reason for cutting a particular men's team.

The reason men's teams must sometimes be cut is because for decades they have received more resources than they should have. Men had almost unlimited opportunities to participate in sports because women were denied them, and this denial freed up money the men's teams could use. This artificially inflated allocation of resources--due in large part to stereotypes about women and their lack of interest and ability in sports--does not create an entitlement to have such resources continue.

Ideally, men and women should both have a team in every sport and if the behemoth of football did not consume such huge resources, that might be possible. But if a new women's team must be created at the expense of an old male team, that is only fair. Women are not saying that years of men-only sports should be compensated with the same number of years of women-only sports. Rather, they are only asking for equality today.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Sex Discrimination, among other subjects. Her other columns on sex discrimination and other topics may be found in the archive of her columns on this site.

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