Vol. 11, No. 3, Pg. 38. Is Proportionality the Standard in Gender Equity?.

• Author: By Robin Chandler

South Carolina Lawyer

1999.

Vol. 11, No. 3, Pg. 38.

Is Proportionality the Standard in Gender Equity?

38Is Proportionality the Standard in Gender Equity?By Robin ChandlerTitle IX has become the main engine driving "gender equity" in regards to opportunity and treatment of the sexes in college athletics. While reasonable people will not argue with the requirement of equality of opportunity and treatment of the sexes in collegiate athletics programs, a legally significant disagreement has arisen on how to determine whether equality has been obtained.

Currently, proportionality is the standard. This standard mandates that the percent of opportunities available to females for participation in athletics must be substantially proportional to the total percentage of all females enrolled in the institution.

The genesis of Title IX was the Educational Amendments Act of 1972, which, in 20 U.S.C.A. §1681 (a) (1990), contains this very simple language:

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...

In 1975, the Secretary of Health, Education and Welfare promulgated regulations that implemented Title IX. In 1979, HEW's Office of Civil Rights promogated a Policy Interpretation that contained a detailed measure of what OCR would require in order for an institution to comply with the requirement of providing equal athletic opportunity for the sexes.

The compliance area that received the most attention was the third-"effective accommodation of student's interest and abilities." The OCR developed a three-stage framework by which this area could be assessed. It was: (1) Whether intercollegiate level participation opportunities for male and female stu

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dents are provided in numbers substantially proportionate to their respective enrollments; Or. . .

Thus, proportionality became the standard by which compliance with Title IX would be ultimately measured.

However, it has been argued that proportionality became the standard notwithstanding Congress's declaration that this method not be used as a remedy. 20 U.S.C.A. § 1681 (b) (1990) declares that §1681 (a) (supra) shall not be . . .

. . . interpreted to require any educational institution to grant preferential...