Out of the Pocket: Title IX’s Other Side


Published


Jason Oraker Yale Daily News

There is absolutely no question that, in its 30-year existence, Title IX legislation has considerably advanced women’s intercollegiate athletics. Title IX of the Education Amendments of 1972 was initially established as an anti-discrimination measure guaranteeing that no one would be excluded from federally assisted programs or activities on account of gender.

Whereas a mere 30,000 women were participating in intercollegiate athletics in 1972, before Title IX, that number has grown to more than 160,000 at present, according to a report by the United States General Accounting Office.

In the last 20 years alone, the same report said female intercollegiate athletic participation has increased by more than 80 percent, with a 66% increase in female athletic teams. Not only are women being offered more opportunities to participate, but they are now being actively recruited to participate at a level commensurate with that of their male counterparts. Moreover, with the emergence of popular female sports icons in multiple sports – Michelle Kwan and Sarah Hughes in figure skating, Mia Hamm in soccer and Lisa Leslie in basketball – coupled with the constant growth of female youth sports programs, Title IX has served a significant purpose for women in athletics.

But as Title IX passes through its 30th year of existence, it is time to examine the other side of the equal opportunity argument that this legislation supposedly promotes. During the same time frame in which such strides have been made in women’s athletics, men’s athletics programs generally have suffered. More than 400 men’s athletics teams – the majority being swimming and wrestling – have been eliminated as a result of Title IX’s substantial proportionality requirement, as colleges are finding it easier and legally safer to discontinue certain men’s athletic teams rather than create new women’s programs. This disturbing trend ultimately runs counter to Title IX’s original purpose.

The legislative history of this measure indicates that this was clearly not designed as a quota system, predicated on statistical balancing, but was an effort to bring more athletic opportunities to females.

Sadly, through controversial litigation over the last 12 years, Title IX’s original intention has been lost. For the most part, appellate courts nationwide have adopted substantial proportionality – which says that the ratio of female to male varsity athletes must closely mirror the ratio of female to male undergraduates students – as the only Title IX enforcement mechanism.

Thus, for a budget-strapped athletic director managing an institution’s Title IX compliance, it is much easier to cut a minor men’s sport than to add more women’s sports in an effort to maximize proportionality. Male wrestling and swimming teams are being cut left and right and, though the affected athletes have sometimes challenged such results with litigation of their own, to date every case has lost in the court room.

What proponents of proportionality fail to realize is that the numbers do not add up. Nationally, according to a 1995 survey by the National Federation of State High School Associations, females make up 39 percent of the high school athletic population and 38 percent in college – a percentage that, by the way, has not changed in 24 years.

For an institution whose student body is 50 percent women, substantial proportionality says that 50 percent of all varsity athletic opportunities should go to women. In light of the 38 percent national average, this means offering women a 94 percent greater chance to participate in athletics than men. At many schools, this has translated to coaches of men’s teams barring walk-ons, cutting offered scholarships, or disbanding teams altogether, while coaches of women’s athletic teams may struggle to fill their rosters.

Are we trying to field a successful team or placate mediocrity? When taking proportionality to this extent, that is the question we must ask.

The only way substantial proportionality is valid, therefore, is if an equal percentage of male and female students are actually able and willing to participate in athletics. The current percentages – which have not changed since 1979 – indicate this is not the case.

It is unclear how many students would actually take advantage of increased athletic opportunities if such were offered, but intramural program participation may shed some light on the subject. According to a legal brief for Brown University in the marquee litigation for substantial proportionality, there is a four-to-one male-female ratio in collegiate intramural activity. Obviously, these programs offer athletic opportunities to anyone, regardless of previous experience, and without the added pressures of fulfilling scholarships, missing classes, and traveling widely through the country.

Given the aforementioned differences between intramural and varsity athletics, the substantial proportionality standard in varsity athletics still ignores the reality of how many males and females in general are interested in athletics.

The bottom line here is that, at every level, women are not as interested in athletics as men are, and Title IX, as the courts now interpret it, is an over-inclusive, one-size-fits-all measure treating male and female athletic interest as if it were equal. Well, it’s not.

To truly reach equal protection as guaranteed by the 14th Amendment, there should be a form of proportionality that represents relative interest between sexes at each university. This will ensure that each collegiate athletic department fully and effectively accommodates the relative interests and abilities of each gender.

By meeting such interests there would be no danger of allowing courts to violate what Title IX clearly prescribes – equal treatment. Until courts re-evaluate the situation, however, there will continue to be disparate treatment of male and female athletes, ultimately effecting the continued elimination of minor men’s teams.

The NCAA and the courts in general need to take a hard look at Title IX because opportunity, as interpreted presently under the legislation, does not mean equality.

From the College Sports Council.

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