A Catalyst for Change: Title IX

Title IX has been -- and continues to be – a catalyst for change, which, according to the numbers, has been unarguably dramatic.

Since 1971, athletic participation by high school girls has gone from 294,000 to more than 3 million, as of the 2007-08 school year, according to one set of statistics. Division I sports scholarships for women, from 1991-92 to 2005-06, rose from 372,000, to almost 1.8 million.

But as much as the landmark law has triggered that positive change, the legislation continues to be a lightning rod for critics who say it discriminates against men and handcuffs coaches and administrators.

“Sports Update: Title IX,” a discussion held Friday, Sept. 25, 2009, at the Wake Forest University School of Law and co-sponsored by the student-organized Sports & Entertainment Law Society, attempted to highlight recent developments regarding the legislation as well as lay to rest any myths surrounding the 1972 law, which is often misunderstood and misinterpreted.

Title IX says that no person shall, “on the basis on 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...”

Although the law applies to various aspects of a U.S. educational institution receiving federal money, it is most often associated with athletics.

Court rulings and the lawsuits that spur them enhance the fluidity of Title IX, which continues to develop and evolve, said Tim Davis. Davis, who helped organize the Sept. 25 discussion, is a professor in the School of Law and one of the country’s best known sports law scholars. He has co-authored a casebook on sports law, and co-authored “The Business of Sports Agents,” published by the University of Pennsylvania Press.

Joining Davis were Glenn George, of the University of North Carolina at Chapel Hill law school; Barbara Osborne, an associate professor in the exercise and sport science department of UNC-Chapel Hill; and Jill Pilgrim, general counsel for the Ladies Professional Golf Association. Title IX, said Davis, is “a piece of legislation that has impacted the lives of millions, and will continue to impact the lives of millions … But people know very little about it.”

Schools can comply with Title IX in one of three ways. One, schools must demonstrate substantial proportionality, which means the number of athletic opportunities offered to women must be proportionate with the number of women who compose, for example, a university’s undergraduate student population, which averages about 55 percent nationally. Courts have particularly struggled, Davis said, with the appropriate size of that gap, whether it applies to a high school or a college.

Most institutions, said Davis, are out of compliance with respect to substantial proportionality, both at the high school and college level.

“Substantial proportionality has sometimes been characterized as a safe harbor,” he said. “If you can establish substantial proportionality, that is the end of the analysis, at least as it relates to participation opportunities and whether or not an institution has violated Title IX because it doesn’t have the requisite participation opportunities for women.”

Schools also can comply with Title IX by showing improvement in participation opportunities as well as demonstrating policies and practices of continuing efforts to increase those participation opportunities. Courts, however, have rejected arguments in which schools say they’ve increased the number of sports for women.

“That’s not what is determinative,” Davis said. “What’s determinative are the participation opportunities.” A school can also comply by proving it has made full accommodations related to the interests and abilities of the under-represented sex. The burden of proof falls on the plaintiff, who must establish the presence of an unmet interest, demonstrate the ability to sustain an intercollegiate team and establish a reasonable expectation of being able to participate and compete against teams in the region.

Typically, courts won’t order a specific action to enforce compliance. Rather, said Davis, a court will tell an institution, “You’re out of compliance, fix it.”

Osborne has directed the graduate and undergraduate programs in sport management at UNC, and she teaches a variety of sport management courses. Her current research focuses on legal issues in intercollegiate athletics, Title IX and women’s issues in sports.

“Most people … think of Title IX as that law that lets girls play sports. But it was created to address far broader issues of sex discrimination that was occurring in schools,” said Osborne, who spoke specifically about sexual harassment as it relates to Title IX. She defined sexual harassment under Title IX as conduct that is sexual in nature, unwelcome and denies or limits a student’s educational opportunities.

Under Title IX, she said, universities can be held liable for sexual assault committed by student athletes. Assessing how an institution responds to a charge of sexual assault or harassment is part of determining whether a school has liability. Schools, she said, need to take a risk-management approach, enacting strict policies on recruiting and admitting athletes, possibly running criminal background checks, instituting a code of conduct to clearly establish expectations and educating students about and publicizing policies for reporting harassment an assault.

George, who spoke about reverse discrimination in relation to Title IX, remembers a time when girls had no avenue to participate in high school or college sports, but she is thankful that her daughters have had multiple opportunities to compete. She called Title IX “a remarkable piece of legislation that has made an amazing change, I think, in the lives of girls and women in really just one generation.”

She said an obsession with proportionality has helped to fuel the controversy surrounding Title IX and, in turn, has placed pressure on schools to make questionable decisions in order to comply. As an example, she cited James Madison University, which in 2007 cut seven men’s sports and three women’s sports.

For high schools, an athletic participation rate of about 41 percent among girls – significantly lower than that of boys -- is typical.

“To go from a group of only 41 percent of participating in high school and think you’re going to make it 55, 56 58 (percent) or, at James Madison, 61 percent, means that proportionally, if you’re looking at your high school athletes you’re really favoring your women here. You’re giving them a proportional advantage that their male counterparts aren’t getting.”

Admitting the generalization, George said two recent studies show that men are typically more interested in sports. Girls in grades three through 12, she said, citing a study by the Women’s Sports Foundation, are less likely to be involved in sports and are more likely to drop out of sports, sometimes because they want to get more involved in volunteer or extracurricular activities. “Boys never gave that as a reason for dropping out.”

Some men’s sports – swimming, gymnastics, wrestling – have foundered since Title IX was enacted, but participation opportunities have increased some 54 percent, said George, who has authored a number of articles addressing Title IX and has served on the faculty at UNC School of Law from 1999 to 2006, returning in fall 2008.

“So if you’re looking at total numbers, there are more opportunities for male athletes today than there were when Title IX was enacted. In a broad sense, it would be erroneous to say that Title IX has been responsible for cutting all these opportunities.”

Female enrollment in schools that place an emphasis on engineering is about 17 percent, George said. “Are engineering schools discriminating in admission of women? I don’t think so.”

George also cited a $12,000 income gap between men entering college and women entering college. Women, she said, tend to worry more about getting jobs and are more interested in getting involved in service activities. What’s more, she said, women from minority groups, older women and economically disadvantaged women are adding to university enrollment, but those groups are the least likely to be involved in sports.

“If you ask in one sense, have men been harmed by the implementation of Title IX? Certainly … some people might say yes. It’s hard to say yes in the broader sense for the whole, but I would actually say yes, I think there is reverse discrimination … for men. But I also think there is discrimination for women, in the way that we have become fixated in our discussion of Title IX. I think we’re stuck in our conversation. I think we’ve got blinders on. I think it’s been driven by this obsession with proportionality, and I think it has really stymied our conversation.”

About 400,000 athletes represent colleges and universities in the U.S., compared to 7.5 million high school athletes.

“We’ve got all our attention focused on an issue that’s going to affect a relatively tiny number of women,” George said. “If we really believe that sports and exercise and the opportunity to participate in these has a lot of important benefits, helping a few more thousand women, while not irrelevant, isn’t nearly … as important a goal as getting more women in general involved in sports and exercise, not because they can be on a varsity team, but because it becomes a part of their lifestyle.”

The LPGA’s Pilgrim, a former track and field standout, entered college four years after Title IX was enacted. She knew little about the benefits of the law, though she saw its implementation at Princeton University. The Ivy League school did not have an “official” women’s track and field team until Pilgrim was a junior, so she missed out on national meets and the world-class competition she was used to while taking part in club and AAU events.

“I do believe that we’ve come a long way because of Title IX. I do not on any level believe this level of progress would ever have been made without the impetus of a federal law mandating the equality of educational opportunities in the manner that Title IX has done.”

“I really feel like I lived through the beginning of and the expansion of these athletic opportunities for women,” said Pilgrim, who joined the LPGA as general counsel in January 2007. Conversely, she said, there are boundless opportunities to participate in sports separate from education institutions, citing organizations such as Little League, soccer clubs and Pop Warner football.

Title IX, said George, has opened a door allowing women and girls to experience “an enormous source of learning, opportunity, exhilaration and frustration that wasn’t there before.”

by: John Trump