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By William H. Glover, Jr.
Title IX of the Education Amendments of 1972 is a federal law prohibiting gender discrimination in athletic programs at institutions that receive federal funds. The penalty for failure to comply with Title IX can be to lose all federal funds, which includes guaranteed student loans. Few colleges could survive such a penalty. Title IX has been a controversial law involving amateur sports. However, since it was enacted, the number and quality of female high school and college athletes have increased tremendously as a direct result of this federal law.
In October of 2000, a federal jury ruled that Duke discriminated against female place kicker Heather Sue Mercer. She was an all-state kicker at Yorktown Heights High School in Yorktown Heights, New York. She enrolled at Duke University in the fall of 1994 and, upon enrolling, tried out for the football team as a walk-on kicker. She initially did not make the team and instead served as a manager for the football team during the 1994 season. In the spring of 1995, she participated in conditioning drills with the football team and was selected by the seniors on the team to participate in the Blue-White Game, an intrasquad scrimmage played each spring. In the game, Mercer kicked a 28-yard game-winning field goal, giving the Blue team a, 24-22, victory. Soon after the game, Duke head football coach Fred Goldsmith told the news media that Mercer was on the Duke football team. Shortly thereafter, assistant football coach Fred Chatham, Duke's kicking coach, personally told Mercer that she had made the team. Mike Cragg, Duke's sports information director, also asked Mercer to participate in a number of interviews with newspaper, radio, and television reporters. Mercer did not play in any games during the 1995 season, but she regularly attended practices. She was officially listed as a member of the Duke football team on the roster filed with the NCAA and she was pictured in the Duke football yearbook. Despite being officially listed as a member of the team, she was not allowed to dress for games or sit on the sidelines during games. In the spring of 1996, she again participated in conditioning drills with the football team.
It was during this latter period that Mercer alleged that she was subject to discriminatory treatment by Duke. Specifically, she claimed that Goldsmith did not permit her to attend summer camp, refused to allow her to dress for games or sit on the sidelines during games, and gave her fewer opportunities to participate in practices than other walk-on kickers. She also claimed that Goldsmith made a number of offensive comments to her, such as wondering why she did not prefer to participate in beauty pageants rather than football and suggesting that she sit in the stands with her boyfriend rather than on the sideline.
At the beginning of the 1996 season, Goldsmith informed Mercer that she had been dropped from the team. Mercer claims that Goldsmith's decision to drop her from the team was based on her sex since Goldsmith allowed other, less qualified walk-on kickers to remain on the team.
Mercer filed suit against Duke in 1997, claiming Duke violated Title IX when the football coaches cut her from the football team because she is a woman and treated her differently from male players. Under Title IX, Duke was not required to permit her to try out for a contact sport like football, but if she was permitted to try by the football coach, Title IX required that she be treated the same as any other student athlete who tried out. Duke argued that Mercer was cut from the team based on her abilities. Former head coach Fred Goldsmith testified that Mercer's lack of speed, size and leg strength kept her from being considered for play. In October 2000, a federal jury ordered Duke to pay $1 in actual damages and $2 million in punitive damages.
Purpose Of College Athletics
What is the purpose of college athletics? If athletics have something to do with education, then obviously everyone physically able should be allowed to participate. One of my favorite definitions of the purpose of athletics was written by G. W Carver Academy of Waco, Texas. It reads in part:
The purpose of athletics is very simple. We desire that student athletics GET THE BEST EDUCATION POSSIBLE in preparation for becoming a self-directive, self-reliant and ethically productive member of our eclectic society.[1]
Henderson State University says:
[O]ur primary purpose is to direct each student-athlete toward growing and becoming a total person, earning a meaningful degree, and developing as an athlete. We should provide each student-athlete with the chance to become involved in all areas of student life while in school and with the tools to be successful in his or her career after graduation.[2]
College sports in the late 19th and up to the mid 20th century were mostly amateur affairs. But college sports (especially at big, well-funded schools) have become big businesses, with millions of dollars at stake. Alumni want winning teams, colleges want (and even need) the prestige and cash that comes from championship teams, and professional team owners and coaches expect college sports to produce pro players (as if college teams were "farm teams").
There is some truth in all three of the above statements. But whatever the purpose of college athletics is, the law requires that men and women have equal opportunities to participate.
Evolved From The Civil Rights Movement
Title IX actually evolved from and amended Title VII of the Civil Rights Act of 1964. Title VII provides that an employer may not discriminate on the basis of race, color, religion, sex, or national origin. Title IX extends that same philosophy to any program that receives funding from the federal government: it must not discriminate on the basis of gender when it comes to applying the funds to sports programs. 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.
As a result of this legislation, women have directly benefitted from the creation of new programs and new opportunities to compete at the highest amateur level. Additionally, professional leagues in several sports continue to expand and create even more possibilities for women as professional athletes.
Title IX has led to an increase in female participation in sports at both the high school and collegiate levels. As state previously, collegiate athletic departments and universities that do not comply with Title IX may be subject to severe penalties by the federal government, including termination of federal funds. However, no such penalty has ever been handed down.[3]
Pursuant to Title VI of the 1964 Civil Rights Act, each federal department and agency that disburses federal funds is required to establish procedures for determining that grant recipients do not discriminate. In 1979, Congress split the Department of Health, Education and Welfare (HEW) into the Department of Health and Human Services (HHS) and the Department of Education (DOE), transferring all the education and enforcement functions of the former HEW to the DOE. Title IX administration also was assigned to US Department of Education's Office of Civil Rights (OCR). The DOE's office is headed by the Assistant Secretary of Education for Civil Rights.
In 1979, the Office of Civil Rights (OCR) published regulations regarding how Title IX should be interpreted. These regulations compared areas of financial assistance and other funding categories for both men's and women's sports programs. Based on the OCR's interpretation, these factors must be taken into account when comparing Title IX compliance between men's and women's programs:
Enforcement of Title IX involves analyzing whether or not money is being allocated equitably between men's and women's programs based on the number of students attending the school. The key component in a Title IX cases is whether the institution developed a plan and carried out its mission to expand and accommodate the interests of female student-athletes, coaches, and administrators. Developing a plan is not enough -- carrying out its mission is the key.
Title IX Criticism
The fundamental purpose of Title IX is designed to help prevent gender discrimination. However the practical application of this law has generated violent debate. Many opponents of Title IX argue that the law has turned into a quota system and has contributed to the systematic destruction of male sports programs throughout the United States. Many male swimming, wrestling, football, water polo, baseball, and other programs have been eliminated in the name of Title IX compliance. Almost all of the programs that are eliminated are classified as non-revenue producing sports according to the NCAA. Supporters of the law argue that Title IX continues to benefit women socially, economically, and even emotionally. Much of the criticism of this law involves the interpretation of how it is applied.[4]
Grove City College v. Bell
In 1984 the U.S. Supreme Court granted a major victory for many collegiate athletic departments by holding that Title IX did not apply to collegiate athletic programs in the case of Grove City College v. Bell, 465 U.S. 555 (1984). The Supreme Court held that Title IX only applied to the specific programs that received federal (taxpayer) funds and not the athletic departments themselves (none of whom received direct federal financial assistance). This victory, however was short lived. In 1988 Congress enacted the Civil Rights Restoration Act and, in effect, reversed this decision. Title IX therefore mandates that college athletic departments are no longer immune from its interpretation, and are forced to comply with its regulations.
Title IX Tests
In order to comply with Title IX according to the U.S. Department of Education, a school must meet one of three tests. Currently the OCR oversees compliance in this area and in 1996 offered a clarification of what Title IX compliance really means. If a school passes any one of the three tests, then theoretically there is compliance. Passing these tests is often referred to as the safe harbor interpretations of the statute.
Test 1: Substantial Proportionality
Question: Is an institution providing participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment as full-lime undergraduate students?
The substantial proportionality test is the one that is most often used by plaintiffs and courts to determine whether an institution is in compliance with Title IX. It is usually the easiest method to assess compliance because it is based on numbers. If, for example, 50 percent of women are full-time undergraduates enrolled at a particular college, then you would assume that 50 percent of the participants in sports programs there must be women. There has been considerable debate as to what the substantial proportionality test means in terms of a specific statistical ratio that athletic departments must adhere to in order to be in compliance.[5] While ideally the ratio would be 50 - 50, such a ratio has been difficult for athletic departments and universities to achieve. What, then, is substantial proportionality?
In Roberts v. Colorado State Board of Agriculture, supra, the court held that a disparity of 10.5% did not meet the substantial proportionality test. In this case, members of Colorado State University's (CSU) women's softball team brought suit against CSU for violation of Title IX after it had announced plans to eliminate the program. Following the elimination of the softball team, the difference between enrollment and athletic participation for females at CSU was 10.5%. The district court found in favor of the plaintiffs and issued a permanent injunction ordering CSU to continue to offer women's softball. On appeal, CSU argued that as a matter of law, the 10.5% disparity is substantially proportionate. The appellate court found otherwise and affirmed the decision. Although the court did not state what minimum percentage difference would be substantially proportionate, it did state that 10.5% was not and that it was irrelevant if other institutions had a greater disparity.
Test 2: History Of Expansion Of Women's Programs
Question: Has an institution demonstrated a history and continuing practice of program expansion for the underrepresented sex?
If an institution can demonstrate a history of expansion of women's sports programs, then the institution is likely to survive a claim against it charging noncompliance. However, virtually no court and no institution was able to address this issue successfully until Syracuse University demonstrated compliance in this area with a major legal victory in 1999.[6]
In Boucher v. Syracuse University, Jennifer L. Boucher and seven other female athletes sued Syracuse University in U.S. District Court for failing to accommodate the interests of female athletes and to provide equal athletic benefits to club team members. Despite having added no new women's teams between 1982 and 1995, Syracuse cited a 47% increase in women's participation in athletics over the years. After being sued in 1995, Syracuse quickly added new varsity teams in 1996 and 1997 and plans to add another in 1999.
Based on the evidence presented by the school, the court said that Syracuse met the second criterion for complying with Title IX, a sufficient history of expanding opportunities for women athletes. It also noted the existence of formal policies to allow students to bring their interests and abilities to the school's attention. This was the first reported case that a university won a Title IX lawsuit filed by women athletes, based on its successful claim of having a continuing practice of program expansion for women.
Test 3: Full And Effective Accommodation Of Women's Interests
Question: Has an institution fully and effectively accommodated the interests and abilities of the under represented sex?
Proving that women (or men) are having their interests effectively accommodated is virtually impossible. Recommendations have included conducting on-campus surveys. However, many students live off campus.
Evolution Of Title IX
The interpretation of Title IX and its effect on student-athletes and institutions has had its greatest impact in the legal system from cases brought by individuals suing their own institution for failing to comply with the federal law. The case of Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) allows for individuals to sue and recover monetary damages for violations of Title IX. In this case, Christine Franklin was a high school student in Gwinnett Public Schools who was sexually harassed in 1986 and forced into a sexual relationship with Andrew Hill, a teacher and coach at the school. Franklin's boyfriend reported the actions to the band director. The School's administration discouraged her from pursuing action saying it would create negative publicity, but finally began an investigation in March of 1988. Hill resigned and the school dropped the investigation. Franklin sued the district, requesting damages under Title IX.
The District Court subsequently dismissed the complaint on the ground that Title IX does not authorize an award of damages, and the Court of Appeals affirmed. However, the U. S. Supreme court reversed and remanded the case finding that monetary damages were an allowable award for successful sexual harassment claims under Title IX. In addition, this decision opened the way for Title IX cases in which the plaintiff seeks damages to be tried by a jury rather than a judge.
Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996)
This case is generally regarded as the most influential Title IX case ever to be decided. In 1991, Brown University announced that it was going to eliminate four sports: women's volleyball, women's gymnastics, men's golf, and men's water polo. Brown said that the teams could still compete as club sports, but it was not going to provide university funding due to financial pitfalls. At that time, Brown's student body was comprised of 52 percent male and 48 percent female students, though 63 percent of its student-athletes were male. Amy Cohen, a member of the gymnastics team, sued Brown, and the trial court held that Brown failed all three tests under Title IX. An appeal was filed with the United States Supreme Court, which subsequently declined to hear the case.
In March 1995, the U.S. District court in Providence ruled in the athletes' favor and ordered the college to reinstate the women's gymnastics and volleyball programs. Brown appealed the ruling, arguing that Brown already offered ample opportunities for women to participate in varsity athletics. In November 1996, the First Circuit Court of Appeals in Boston upheld the lower court's decision. The appeals court found that Brown was not in compliance with Title IX. Brown then appealed the case to the Supreme Court, a move supported by more than 60 other colleges. In April 1997, the Supreme Court refused to hear the case, letting the appeals court ruling stand.
The First Circuit upheld 34 C.F.R. § 106.41(c) (1992) which list ten factors which the OCR will consider in assessing compliance:
The Court also upheld the three-part test and how institutions may meet each prong of the three-part test.
The Court stated: "because Brown maintains a 13.01% disparity between female participation in intercollegiate athletics and female student enrollment, it cannot gain the protection of prong one." Cohen III, 879 F. Supp. at 211. Nor did Brown satisfy prong two. While acknowledging that Brown "has an impressive history of program expansion," the district court found that Brown failed to demonstrate that it has "maintained a continuing practice of intercollegiate program expansion for women, the underrepresented sex." Id. The court noted further that, because merely reducing program offerings to the overrepresented gender does not constitute program expansion for the underrepresented gender, the fact that Brown has eliminated or demoted several men's teams does not amount to a continuing practice of program expansion for women. Id. As to prong three, the district court found that Brown had not "fully and effectively accommodated the interest and ability of the underrepresented sex to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes."[7]
Thirty-five years after the passage of Title IX, the effects of this law are emerging. Television and sports reporters across America extolled the 1996 Summer Olympics as the Olympics in which American women dominated. The American women's gymnastics, soccer and softball teams all won gold medals. Amy Van Dyken won four gold medals in swimming, the most gold medals any American woman has won at an Olympics, and the volleyball team excited new interest in that game. Today, one cannot help but notice that the sports page regularly carries news about national and local women's sports. Television stations post scores for girls' teams as well as those for the boys. The reason for this "new" interest in female athletics is Title IX.
However, these improvements have not come without a fight. Not everyone has supported the law. It has taken lawsuits against violations of the law across the country to make women's sports visible throughout the U.S.
Title IX complaints have also been filed at the high school level as well as the college level. Nancy Williams, New Jersey Shore Regional High School girls' softball and field hockey coach, filed a complaint in August of 1996. Her complaint was against the West Long Branch Board of Education for voting not to rehire her despite having a winning record. Williams also complained about the inequalities in the girls' sports programs at the school. Female athletes were not provided with the same number of coaches, equipment and locker rooms that the boys had. The school did not videotape girls' sports, provide cheerleaders, concession stands or bands for their events. These complaints caused the school to be investigated by the federal Department of Education. The school was found guilty of discriminating against female athletes, and a settlement was reached with the Department of Education to give girls' sports more attention, support and funding. Salaries of the coaches for the girls were also to become equal to those of the boys' coaches.
Since the passage of Title IX in 1972, participation in college women's sports has increased. According to NCAA statistics, the total number of female athletes increased by 25 percent in the first 20 years, and between 1992 and 1996, at least 800 women's teams have been added at the collegiate level. Locally, women are enjoying participating in teams that did not exist in the 1970s. The University of Texas at El Paso offers women's teams in basketball, volleyball, track and field, tennis, soccer and golf, with swimming and softball to be added soon.
Every district in the El Paso area supports women's teams in high school volleyball, basketball, tennis, golf, and track. Swimming and softball are available in the El Paso, Ysleta and Socorro districts. Ysleta also supports a women's gymnastics team.
El Paso Community College has recently added sports to its programs. The men's baseball team was quickly followed by a women's softball team.
Although women have welcomed the new opportunities to participate in sports, not everyone is happy. Finding the funding for each of the sports for both men and women is not easy. Budgets may have to be cut from one area in order to accommodate another. Football has always been the number one moneymaking sport at colleges and universities. Coaches and administrators argue that taking money away would be crippling to the sport. "You can't bite the hand that feeds you," says Michigan State football coach George Perles.
But colleges are finding money to support women's sports by reducing spending in other men's sports, sometimes eliminating them outright. For instance, Michigan State announced that it was going to reduce funding for men's fencing and lacrosse in order to add women's rowing and remain in compliance with Title IX. Since 1972, 256 colleges have dropped wrestling.
Schools would rather do away with low-profile sports than interfere with football. Other men's sports being cut include field hockey and water polo. Just as racial attitudes could not be changed by legislation overnight, neither can discriminatory attitudes toward women in sports be reversed quickly. Attitude changes have been slow in coming. At the beginning of the 20th century, sports were considered for men only, and women were called "unnatural" and "unladylike" if they showed the slightest interest in participating in sports. According to the New York Times, running was the first sport for women that society finally accepted. But women were not considered physiologically capable of long-distance running. Some believed that a woman who attempted this would not be able to bear children because her uterus might fall out, that she could grow a mustache or that she wanted to be a man. Today these beliefs appear ridiculous, and this generation's women are stronger and healthier than ever before. Women from all ethnic backgrounds are succeeding in high school, college, professional and Olympic sports.
Men And Title IX
Male sports programs have become victims of Title IX with regard to interpretation of Title IX compliance that has focused on substantial proportionality. Numerous colleges have cut programs that served the interest of male student-athletes. Historically, sports programs for male student-athletes have been larger and better funded than female programs. Are males, therefore, unable to claim reverse discrimination under a Title IX analysis? Probably not. Title IX is gender neutral and applies equally to men and women - at least in theory. A few cases have been brought by male administrators and student-athletes on the basis of allegations of reverse discrimination, but they have usually failed under a Title IX analysis.[8]
Men's Programs Funding Women's Programs
Men's sports often fund women's sports for survival. This is the reason for much of the debate that rages among opponents to Title IX. They argue that revenue sports such as football and men's basketball serve as the cash cow for women's sports nationwide. Is it fair, then, that men's programs should continue to be cut in order to comply with Title IX while women's programs continue to receive aid from men's programs for their very existence? Though such an argument seems to have merit, it is not usually considered a valid one under a Title IX analysis.[9]
Contact Sports Exception
A recent interpretation of Title IX involves the issue of contact sports. Prior decisions had mandated that schools must provide women with the opportunity to compete on male teams when no women's team existed. Title IX regulations governing athletics now exempt contact sports to some extent. Sports in this category include boxing. wrestling, rugby, ice hockey, football, basketball, and other sports in which the major activity involves bodily contact. The effect is that women appear to be excluded from participation on all male teams. However, once a woman is allowed to compete in a contact sport, she may not be treated differently than any other person on account of her gender.[10]
Football
There are no women's football programs at the intercollegiate level. How does an institution comply with the numerical equivalency requirement in terms of participation and the financial responsibilities associated with Title IX when 85 scholarships may be awarded by any Division I program for which there is no women's sports equivalent? Such inequity has been dealt with by athletic departments by eliminating men's programs and adding women's programs. This balances the numerical imbalance in terms of proportionality. Unfortunately, male athletes in sports such as swimming, wrestling, tennis, and baseball have suffered at the expense of compliance-based numbers and percentages. Many individuals hope that subsequent interpretations of Title IX will exclude the sport of football.[11]
Men's Programs Cut Due To Title IX
As stated above, since Title IX has been enforced, numerous men's programs have been eliminated from athletic departments. Some of these programs, such as UCLA's men's swimming program, provided some of the finest amateur, Olympic, and professional athletes in our country's history. Male victims of program termination have sued under Title IX claiming that the fundamental purpose of Title IX was not to eliminate men's programs and such termination amounts to a form of reverse discrimination. However, such claims appear to have no merit under most judicial decisions.
In 1993, the men's swimming team at the University of Illinois was cut while the women's was not. The men's fencing team and both diving teams were eliminated as well. As usual, cutbacks were announced due to financial reasons. Members of the men's team sued, claiming discrimination on the basis of sex. Both the trial court and court of appeals held that such decision making by the University of Illinois was acceptable under Title IX analysis, particularly since the men's participation in athletics was 76.6 percent while the overall male enrollment was 56 percent.[12]
Title IX does not require schools to cut men's teams. College administrators make that choice rather than raise additional funding to support men and women's programs on an equal footing.
Women Competing On Male Teams
According to the guidelines issued by the OCR, if a college has a men's team but no women's team in a given sport, female athletes must be allowed to try out for the team unless it is a contact sport. As stated earlier, Duke University allowed Heather Sue Mercer to try out for the football team as a placekicker. Mercer was listed on the spring roster but was not allowed to attend a summer training camp or dress for the games. She was later cut from the team, and she sued Duke University alleging that once she was allowed on the team, Duke had discriminated against her by treating her less favorable than men.
Men Competing On Women's Teams
Some men attempt to compete on women's teams, especially when a comparable male sport is not offered by the college or university. Such exclusions, however, are usually upheld by the courts under the view that Title IX was meant to help the historically underrepresented sex. Still, one recent case may provide hope for those males desiring to try out for women's teams. In Williams v. School Dist. of Bethlehem, 799 F. Supp. 513 (E.D. Pa. 1992), the court ruled that a boy could compete on a woman's field hockey team because otherwise his equal protection rights would be violated.[13]
Equity In Athletics Disclosure Act, 20 U.S.C. 1092(g) -- 34 CFR 668.48
The Equity in Athletics Disclosure Act (EADA) requires co-educational colleges and universities that receive federal funds and maintain an intercollegiate athletic program to prepare an annual report to the Department of Education. This report deals with such areas as athletic participation, staffing, revenues and expenses, by men's and women's teams. This act was first adopted in 1994 to provide Congress and the public with a snapshot of collegiate athletics participation by gender. The Department of Education uses this information in preparing its required report to Congress on gender equity in intercollegiate athletics. Such reports provide a valuable tool for assessing compliance with Title IX. Each university must compete numerous forms that provide public access to certain items.
Federal regulations require that the information, based on the previous reporting year, be made available for inspection by students, prospective students, and the public by October 30 of each year. A table must be completed that lists sports participants (including walk-ons), operating expenses for men's and women's programs, recruiting expenses, scholarships awarded, revenues, and all coaches salaries. Once the data is received by the Department of Education, it must provide a report to Congress on gender trends in intercollegiate athletics based on these reports and make institutional specific reports available to the public through the Internet.[14]
Equal Pay Act Of 1963, 29 U.S.C.A. § 206(b)
Women coaches, trainers, and administrators have increasingly sued colleges and universities for gender discrimination under the Equal Pay Act (EPA). This act requires virtually all employers to provide equal pay for men and women performing similar work. If a female employee sues under the EPA, she must prove that her employer paid her less than a male for substantially equal work. Crucial to this analysis, however, is that exceptions are made for differences in pay based upon an established seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any other differential based upon a legitimate factor.
Conclusion And Summary
The courts have struggled with gender participation issues related to sports for many years and the decisions have not always been consistent. Even with the advances that society has made over the past few decades in breaking down gender barriers, attitude bias stilt exists. Females are sometimes denied participation in the sports of their choice.
Title IX of the Education Amendments Act was passed to guarantee that the interests and abilities of the underrepresented gender, which in most instances is female, would be appreciably developed and met in both work and athletic settings in the United States.[15]
[1] http://www.wacoisd.org/gwcarver/Athletics.htm
[2] http://www.hsu.edu/interior2.aspx?id=4250
[3] Sports Law at p.104 by Adam Epstein, Delmar Leaning (2003)
[4] Id at p. 105
[5] Id at p. 106
[6] Boucher v. Syracuse University, 164 F.3d 113 (2nd Cir. 1999)
[7] Id. at p. 43
[8] Id at p. 114
[9] Id
[10] Id
[11] Id at pp. 114-115
[12] Id at p. 115
[13] Sports Law at p. 116 by Adam Epstein, Delmar Leaning (2003)
[14] Id at p. 117
[15] Case Studies in Sports Law at p. 229 by Pittman, Spengler and Young, Human Kinetics (2008)