Title IX has been controversial sense its inception by Congress on June 23, 1972. What has caused the controversy is not the law itself, but how colleges and universities have chosen to implement their compliance with the law. There are numerous scenarios in which Title IX has benefited female athletes. However, inconsistencies in enforcement by the Office of Civil Rights (Setty 1999) has caused loopholes to exist within the framework of Title IX. This paper will examine the history of Title IX in collegiate athletics, its requirements and enforcement, the positive and negative affect it has on collegiate athletics, and possible solutions to Title IX issues.
The History of Title IX
Title IX was enacted by Congress to protect against discrimination based on gender in the nation’s educational setting. (Cotten & Wollohan p. 523) Title IX was laid out with three elements to determine what falls under the jurisdiction of Title IX. (1) Gender discrimination must have occurred, (2) The institution in question must be a recipient of federal funding, (3) the violation must have been breached in an educational program. (Cotten & Wollohan p. 523) The definition of what an educational program wasn’t clearly defined until 1988. Congress passed the Civil Rights Restoration Act of 1987 that clarified all education programs within institutions receiving federal funding are under Title IX jurisdiction. (Cotten & Wollohan p. 523) This reinforced that athletic and physical education programs were protected under Title IX.
Title IX Requirements
There are a lot of specific requirements in regards to the enforcement of Title IX. For the sake of this paper we will focus on the three accommodation benchmarks for athletics. Institutions only need to meet one of these benchmarks in order to be in compliance with Title IX. The three benchmarks are: (1) proportionality- the opportunity to participate for male and female students must be within a 5% margin of their student enrollments. (2) history of progress- an institution can prove a history of expanding programs for underrepresented sex (3) accommodation of interest- an institution can show its full ability to meet the interests and abilities of the underrepresented sex. (Cotten & Wollohan p. 525 & Woods p. 316)
Title IX Enforcement
Title IX has 3 different levels of enforcement. At the first level each institution should have its own Title IX officer who is in charge of educating all parties associated with the institution in regards of compliance and responsibilities. This officer is also responsible for handling in-house Title IX complaints (Cotten & Wollohan p. 523) The Office of Civil Rights of the U.S. Department of Education (OCR) is the second level of enforcement. A complaint filed with the OCR can be filed anyone associated with the institution. (Cotten & Wollohan p. 524) After the complaint is filed, the OCR investigates the allegations and if it finds there has been a violation a “letter of resolution” is negotiated for the institution. (Cotten & Wollohan p. 524) The institution must agree to a time table in which to fix their discrepancies. (Cotten & Wollohan p. 524) The last level involves filing a federal lawsuit against an institution accusing them of violating Title IX. (Cotten & Wollohan p. 524)
Enforcement of Title IX compliance needs more consistent enforcement and stricter punishments. There has never been a case where an institution has had federal money withheld due to a Title IX violation. (Cotten & Wollohan p. 526 & (Setty p. 345) Lawsuits have become increasingly popular with Title IX plaintiffs since compensatory damages are available for victims. (Cotten & Wollohan p. 526) However, even this method can be manipulated. In Cook v Colgate University, the university appealed the court’s decision for so long that the student athletes who filed the complaint graduated and lost eligibility to play. The case was dismissed. (Setty p. 339) The OCR doesn’t have a clearly defined set of standards for Title IX compliance. An Atlanta regional office of OCR ruled no violation occurred in a proportionality test even though a 28% disparity existed between women’s enrollment and women’s athletic participation. In a different case a Boston regional office ruled Title IX violations had occurred in two situations in which only a 6% disparity was discovered. (Setty p. 341) This lack of a consistent enforcement has allowed institutions to operate outside of Title IX and created an environment where it seems lawsuits are the only corrective measure.
Negative Effects
Title IX has unintentionally created side effects with its implementation. Some administrators have exploited loopholes that exist within the law and flirted with non-compliance due to lack of consistent enforcement. It has become easier for institutions to meet the proportionality benchmark by cutting out less lucrative men’s sports such as wrestling or swimming. They also balance out the proportionality ratios institutions by adding women’s sports. (Cotten & Wollohan p. 526) In the case of Biediger v Quinnipiac University the Quinnipiac University volleyball team was slated for replacement by a cheerleading squad according to allegations. The case depicted a scenario that the institution planned to drop volleyball due to its small roster size and use the much larger cheerleading roster to improve their Title IX compliance. (Cotten & Wollohan p. 526) After the case, the OCR had to designate its definition of a sport and cheerleading was found to not be a ‘sport’ for the purposes of Title IX. (Cotten & Wollohan p. 526) Reverse discrimination has become a relatively new term regarding the elimination of men’s athletics. According to an article by Time Magazine more than 450 collegiate wrestling teams have disappeared since 1972, the year Title IX was enacted. (Sommers 2014) In the case Boulahanis v Board of Regents student-athletes at Illinois State University challenged the men’s soccer and wrestling teams being eliminated. Illinois State University felt that the best option for Title IX compliance was the elimination of two men’s programs and the addition of a women’s soccer program. (Starace p. 205-08) Howard University was given an “F” grade by the Women’s Sports Foundation, which is a Title IX advocacy group. Howard had a 24% proportionality gap, but had already cut men’s baseball and wrestling. While Howard had added a women’s bowling team they still fell short of Title IX compliance. Since the university couldn’t afford to add more women’s teams they would have to cut almost half of its men’s teams to be in compliance. (Sommers 2014) A survey done by the NCAA among Division I institutions showed a decrease of 72 men’s team and only an increase of 11 new teams. Women saw 173 new teams offered while only having 11 teams eliminated. (Carroll & Humphreys p. 361)
Positive Effects
Title IX has drastically increased the number of girls and women participating in sports by creating more access for women. According to the National Federation of State High School Associations the number of girls in high school sports went from 294,015 in 1972 to 3,267,664 in 2014. (Woods p. 317) At the NCAA level in 1982 64,390 women participated in a college sport and in 2014 it increased to 207,814. (Woods p. 317) According to the Women’s Law Center in 2010-11 women made up 44% of all college athletes nationwide. Even women’s participation in the Olympic Games has risen from 21% in 1972 to 51% by 2012. (Woods p. 317) Popularity of women’s sports has grown as well creating a larger fan base. According to the Women’s Law Center the University of Connecticut women’s basketball team saw 357,627 fans watch their 39 games during the 2009-10 season. Not only has Title IX created more opportunities for women to participate in athletics, but it has created more job opportunities for women. Title IX has benefitted women in multiple areas where they were previously discriminated against.
Solutions
Sudha Setty of the Western New England University School of Law created recommendations for improving the effectiveness of how Title IX is enforced. Establish clear guidelines for all compliance officers to follow. These should include how to evaluate possible violations, examples of acceptable and unacceptable situations, and implement stricter compliance plans. (Setty, p. 342) Use more frequent monitoring of compliance plans. Currently when the OCR issues a compliance plan and the school agrees to accept it the school is deemed in compliance. (Setty, p. 344) More diligent follow up is needed by the OCR after a compliance plan is issued. Institutions have the ability to renegotiate their compliance plans, this practice needs to end. Create a plan and consequences for not enforcing it. Then enforce the punishments if non-compliance is discovered. Imagine what could have been if Southern Methodist University had been allowed to renegotiate their “Death Penalty” handed down by the NCAA. Lastly, the OCR should be able to resolve Title IX compliance complaints at a faster rate. (Setty, p. 346) Student athletes in some cases are waiting years to have issues resolved and losing all of their eligibility in the process. The spirit of Title IX is a great champion for making sports equitable and accessible to everyone regardless of gender. However, so many loopholes and inconsistencies exist within the framework of the law that create scenarios of non-compliance or punish the wrong groups of students. There is a better way to enforce Title IX and it needs to be restructured from an organizational standpoint.
References
Carroll, K. A., & Humphreys, B. R. (2000). Nonprofit decision making and social regulation: the intended and unintended consequences of Title IX. Journal of Economic Behavior & Organization, 43(3), page 361. doi:10.1016/s0167-2681(00)00122-0
Cotten, D. J., & Wolohan, J. T., (2017). Law for recreation and sport managers. Dubuque, IA: Kendall Hunt Publishing Company.
The Battle for Gender Equity in Athletics in Colleges and Universities. (2014, July). Retrieved March 3, 2018, from https://nwlc.org/wpcontent/uploads/2015/08/battle_for_gender_equity_in_college_athletics_updated_2014.pdf
Setty, S. (1999). Leveling the playing field: reforming the office for civil rights to achieve better title ix enforcement. Justice Law & Social Problems, 32(331).
Sommers, C. H. (2014, June 24). Title IX: How a Good Law Went Terribly Wrong. Time Magazine. Retrieved March 3, 2018, from http://time.com/2912420/titleix-anniversary/
Starace, M. K. (2001). Reverse discrimination under title ix: do men have a sporting chance. Jeffrey S. Moorad Sports Law Journal, 8(1), pages 205-08.
Woods, R. B., (2016). Social issues in sport (3rd ed.). Champaign, IL: Human Kinetics.
Baseball Thought Experiments 