Vermont Bar Journal
Summer 2008 - #7.
Halfway Home: An Update on Title IX and College Sports
The Vermont Bar Journal #174, Volume 34, No. 2 SUMMER 2008
Halfway Home: An Update on Title IX and College Sportsby Brian L. Porto, Esq.
The presidential campaign of Senator Barack Obama (D-IL) has sparked numerous discussions about the state of race relations in the United States. Those discussions have often ended with the observation that we have come a long way in improving relations between the races, but we still have a long way to go. The same can be said for the status of women in college sports. When assessing opportunities for women as athletes, coaches, and administrators, one might reasonably conclude that we are halfway home; considerable progress has occurred, but significant problems remain.
Indeed, no legal issues in college sports are more persistent sources of litigation and scholarly commentary than those surrounding Title IX, the federal statute that prohibits sex discrimination in federally funded educational programs. Discrimination can take various forms in the college-sports context, ranging from the denial to women of athletic participation opportunities, to retaliation against persons who complain about gender inequity, to sexual harassment of women by male athletes. This article will update the reader on the evolving law of Title IX as it pertains to college sports.
The Title IX Revolution
Title IX states: "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 . . . "(fn1) That language has spurred a social revolution in the United States since 1972, when Title IX was enacted. The revolution has resulted in an exponential increase in participation by women in all facets of higher education, from graduate and professional school to college sports. In 1972, when I was an undergraduate, less than 30,000 women nationwide played sports sponsored by their colleges, compared to 170,000 men.(fn2) Today, more than 180,000 women play sports sponsored by their colleges,(fn3) and women are 45 percent of the varsity athletes at American colleges and universities.(fn4)
But the revolution is incomplete. Despite the obvious progress, female athletes still fall considerably short of their percentages in the student body; at the same time that women are 45 percent of the athletes at NCAA Division I institutions, they are 54 percent of the undergraduates at those institutions.(fn5) Thus, women do not participate in college sports to the same degree that they participate in other aspects of college life.
Anti-Discrimination Law or Quota System? The Title IX Debate
The disparity between the percentages of female undergraduates and female athletes has been a major source of college-sports litigation in recent years. The Title IX regulations promulgated first by the federal Department of Health, Education, and Welfare and later by the Department of Education (DOE), provide that a college complies with Title IX regarding athletic participation if the percentage of its athletes who are female is equal or "substantially" equal to the percentage of its undergraduates who are female.(fn6) This "substantial proportionality" test for Title IX compliance has been controversial, although eight federal appellate courts have upheld it(fn7) and the United States Supreme Court declined to hear a case in which the National Wrestling Coaches Association (NWCA) challenged it directly.(fn8) The substantial proportionality test is one of three alternative standards that colleges can meet in order to demonstrate compliance with Title IX. Besides having the same or substantially the same percentages of undergraduates and athletes who are female, colleges can satisfy Title IX by showing a "history and continuing practice" of expanding athletic opportunities for the athletically underrepresented sex on campus (usually women)(fn9) or that they are "fully and effectively accommodating" the athletic interests and abilities of the underrepresented sex.(fn10)
Colleges have tried to satisfy the substantial proportionality test, especially after the Department of Education's Office for Civil Rights (OCR), which has been responsible for enforcing Title IX since 1980, published a "Clarification" of its enforcement policy in 1996. The Clarification stated that satisfaction of that test was a "safe harbor" that all but assured no additional scrutiny of the gender equity in a college's athletic program.(fn11) But, as the nine-point gap noted earlier between the percentages of female undergraduates and female athletes at Division I institutions indicates, achieving proportionality has been a struggle for most institutions. Those that have had the easiest path to proportionality are colleges with low female enrollments, such as the service academies and other military schools, engineering schools, and institutions such as Georgetown University, which earn revenue from big-time basketball, but do not field football teams, so are spared the large, all-male rosters associated with that sport.(fn12) The nine-point gap between female undergraduates and female athletes also reflects the current demographics of higher education, as women dominate undergraduate enrollments, thereby obscuring somewhat the progress that institutions have made in attracting female athletes.(fn13)
The Department of Education must shoulder some blame for creating confusion among colleges about the three-part test. The substantial proportionality standard does not specify how close the percentages of female undergraduates and female athletes must be to comply with Title IX; equal percentages will surely meet the standard, but it is unclear whether a gap of five points or less would suffice.(fn14) The second prong of the test, namely, the history-and-continuing-practice standard, does not tell colleges how often they must add women's teams to comply.(fn15) And the third prong, known as the full-andeffective- accommodation standard, fails to identify what evidence OCR would accept as proof that female undergraduates are satisfied with the sports offerings their respective colleges provide.(fn16)
Therefore, colleges were eager to satisfy the proportionality standard not only because of OCR's 1996 assurance that proportionality was a "safe harbor" from governmental scrutiny, but also because proportionality presented a numerical goal that may have seemed more achievable than less precise targets such as "a continuing practice of program expansion" or the "full and effective accommodation" of female undergraduates' athletic interests.(fn17) Colleges could have pursued proportionality by adding women's teams while simultaneously reducing roster sizes in football, which often exceed one hundred players.(fn18) Large football rosters make proportionality difficult to attain because no women's team is nearly as large as most Division I football teams are.(fn19) But colleges were loath to reduce roster sizes in football or budgets in football or men's basketball, the two sports with which their athletic "brand names" are most closely associated.(fn20) Instead, during the 1990s, colleges often eliminated men's non-revenue sports, especially wrestling, swimming, and gymnastics, in order to balance athletic department budgets and to comply with Title IX.(fn21)
Although budgetary constraints as well as the need to comply with Title IX produced these cutbacks, critics of Title IX, such as the NWCA, joined by several conservative political commentators, blasted the Department of Education and the substantial proportionality standard as establishing a gender- based quota system in college sports. According to the critics, the substantial proportionality standard deprived men who wished to do so from participating in college sports at the same time that women's teams could not fill their roster slots for lack of interest. The critics maintained that the participation opportunities provided for both men and women should be proportional to their interest in participating, not to their numbers in the student body.(fn22)
The federal courts have overwhelmingly rejected this argument, reasoning that the "proportional interest" standard would freeze the status quo, leaving women underrepresented among college athletes, not only in the short term, but also in the longer term, because the best means of increasing interest among women in playing college sports are to provide opportunities for them and to recruit them to play on college teams.(fn23) The unanimous validation of the substantial proportionality standard by the federal appellate courts undoubtedly influenced the Supreme Court's decision to deny certiorari to the NWCA in its suit against the Department of Education.(fn24)
In retrospect, the federal courts properly concluded that the substantial proportionality standard is constitutional and that men whose teams colleges disbanded in pursuit of proportionality were not victims of sex discrimination under Title IX. This is because women, besides being underrepresented as participants on college teams, have been shortchanged according to several other measures of "gender equity' in college sports. For example, women's teams account for just 37 percent of the operating expenses of...