Title IX and College Athletics – LargeCardinal – April 11

Women and men should be treated equally. Or should they? Read on:

The Law:

“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 educational program or activity receiving federal financial assistance.” 20 U.S.C.S. § 1681 (more commonly known simply as Title IX).

This law, passed on June 23, 1972, amended the Civil Rights Act of 1964. Another provision you might be familiar with from the Civil Rights Act of 1964 is Title VII, which prohibits discrimination by employers on the basis of race, color, religion, sex, or national origin.

After Title IX was passed in 1972, it didn’t take long for people to become concerned about the possible negative influence of Title IX on men’s athletics. (The original law makes no effort to differentiate school athletic programs from other school activities such as academics, music, drama, etc.) In 1974, Senator John Tower (R-TX) proposed an amendment which would have eliminated so-called “revenue-producing sports” from Title IX compliance. However, the amendment failed to pass.

In 1984, the Supreme Court ruled in Grove City College v. Bell that Title IX should apply only to those programs receiving direct federal financial aid. Congress countered the Supreme Court’s narrow interpretation of the law by passing the Civil Rights Restoration Act of 1988 over Ronald Reagan’s veto. The Civil Rights Restoration Act specified that recipients of federal funds must comply with civil rights laws in all areas, not just in the particular program or activity that received federal funding.

In terms of college sports, this meant that the athletic department of any university whose students received federal financial assistance (e.g. Pell Grants) was required to be compliant with Title IX. A few years later, Congress added the Equity in Athletics Disclosure Act of 1994. This required all such federally-assisted colleges’ athletic departments to regularly report the roster sizes of their men’s and women’s sports teams. It also required the athletic departments to report their budgets for recruiting, scholarships, coaches’ salaries, etc. annually.

These requirements exist to this day. The Department of Education evaluates the following factors in determining whether equal treatment of the sexes exists (34 C.F.R. § 106.41(c)):

1. Whether the selection of sports and levels of competition effectively accomodate the interests and abilities of members of both sexes;
2. The provision of equipment and supplies;
3. Scheduling of games and practice time;
4. Travel and per diem allowance;
5. Opportunity to receive coaching and academic tutoring;
6. Assignment and compensation of coaches and tutors;
7. Provision of locker rooms, practice, and competitive facilities;
8. Provision of medical and training facilities and services;
9. Provision of housing and dining facilities and services;
10. Publicity.

Another, simpler, three-part test for compliance with Title IX has been proffered since around 1979.

1. Providing athletic participation opportunities that are substantially proportionate to the student enrollment, or
2. Demonstrate a continual expansion of athletic opportunities for the underrepresented sex, or
3. Full and effective accommodation of the interest and ability of the underrepresented sex.

As you can see, the factors in neither test are concrete. They are subjectively interpreted.

The Problem:

In the aftermath of Title IX and the subsequent legislation, courts have ruled that “financial difficulties is not an excuse for non-compliance [with Title IX].”

Athletic departments rushed to add women’s sports teams in their best efforts to comply with Title IX. But doing so caused financial trouble. As it turned out, Title IX, as applicable to college sports, was an unfunded mandate. Most universities didn’t have the means to double their athletic department budgets. Something had to give.

Since the late 1980s, hundreds of so-called men’s “non-revenue” sports teams have been cut from NCAA athletic departments. Included among many others are:

* 183 men’s cross-country teams
* 180 men’s indoor track teams
* 178 men’s golf teams
* 171 men’s tennis teams
* 132 men’s rowing teams
* 126 men’s outdoor track teams
* 125 men’s swimming & diving teams
* 121 men’s wrestling teams

As a former four-year Division 1 athlete on what would be considered a non-revenue sports team, I feel that Title IX is being misapplied to college sports.

The Issues:

For most purposes, Title IX is a good thing and it is necessary. Nowadays, most schools enroll fairly equal numbers of men and women. In fact, we have progressed far enough that one rarely sees an “affirmative action”-like policy in this context. A typical state school generally receives as many applications from women as from men. The school can apply the same admissions standards from both groups. We are not yet quite there with minorities yet but we will be soon.

Further, Title IX is not just a good thing for admissions – it is a good thing for any activity that is commonly considered “co-ed.” This includes academics, music, drama and debate, student organizations and leadership therein, access to dormitories, access to health care, etc. However, the authorities have determined that sex-specific activities, such as fraternities and sororities, are specifically exempt from Title IX requirements.

My opinion is that athletics should be treated more like fraternities and sororities. Sports, especially at the college level, are not co-ed activities. Title IX cannot be applied to college athletics like it can be successfully applied the selection of a marching band or an incoming class of students. Male and female students have equal abilities to learn to do math or play an instrument. But they do not have equal abilities to play basketball.

If one tried to apply Title IX to a basketball team like it could be applied to a marching band, one would have to have a co-ed basketball team with a permanent affirmative action policy so as to select equal members of men and women to the team. It would not be fair to always play the men over the women, so the coach would have to monitor the minutes of the men and women religiously and make sure that the men’s minutes did not exceed those of the women; and then, that the men did not take more shots than the women.

The idea is ludicrous even before you begin to consider the physicality of the game. It is something that is not done. Consider, if you will, that the NCAA is not required to address race in this way. If a team wants to start five black players on the court, so be it.

The NCAA has tried to comply with Title IX by adding women’s sports until the number of women’s scholarships in a given athletic department is roughly equal to the number of men’s scholarships. A crisis has resulted, because the athletic departments can no longer afford to fund nearly as many men’s “non-revenue sports.” These sports, while not revenue producing, include the majority of the “Olympic” sports.

By providing many women with the opportunity to participate in college athletics, Title IX has taken that same opportunity from all too many male student-athletes, especially in Olympic sports. It isn’t that there just isn’t enough money out there. At my Division 1 school, we had a women’s rowing team. The members of the rowing team had to walk around campus each fall and actually recruit girls that they thought might be good rowers. If they did well for the first few weeks, they would get a scholarship. That is the kind of thing my school had to do to be compliant with Title IX; so that teams like mine could stick around. My team, on the other hand, had less than ten scholarships to allocate to over 30 men. Not only that, but we had to cut less talented athletes from our team now and then so as to get our roster under our allotted limit. These were athletes that worked very hard and did not deserve the treatment they got.

The Solution:

Many people tell me that the vast majority of men’s college basketball and football teams are not, in fact, “revenue-producing.” I have seen sources go both ways. Either way, it isn’t my point. I would hate to see a men’s basketball or football team get cut just as I hate to see a men’s wrestling or swimming team get cut.

On a related note, people tell me that it is men’s football that is the problem. Perhaps this is true to a point. An NCAA FBS football team has 80+ scholarships. Only 11 men play at one time. Full scholarships for 11 offensive starters, 11 defensive starters, and 11 special teams starters is only 33. Backing each of those players up is 66. That leaves a significant amount of money going to players who will rarely if ever see the field in a given season. I would not object to seeing the scholarship limit on FBS football being dropped to a more reasonable number (in the 50s-60s), but there are probably good arguments both ways.

Such a quick fix might help a few men’s “non-revenue” sports teams here and there but I doubt that it could bring back the hundreds of teams that have been dropped over the years. In my opinion, Title IX needs to be scrapped in regard to college athletics. Gender equality in college athletics should be placed under the auspices of a new legal framework designed to match the various athletic interests of men and women at a given school with athletic opportunities. A survey system would go a long way down this road. It is my belief that significantly more men are interested in participating in college athletics than women.

What are your thoughts in regard to college athletics and Title IX?


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