More ideas for reworking Title IX

This is the seventh in a series entitled “Women’s Sports Without Illusions” that critically examines the nearly four decades of the women’s sports movement, including Title IX, cultural and social developments, the growth of professional and international women’s sports and current challenges and issues.

All posts in this series can be found here.


Yesterday I mapped out a few ideas on how Title IX compliance might be changed to reflect the progress of women’s college athletics today, mindful that none of these will probably go anywhere. Instead of boosting participation numbers to match proportionality, I argue that issues over funding, facilities and related matters be made the focal point of new sports regulations.

Today I’ll explain why what we have now is what we’re stuck with, probably for at least another 30 years.

Has this all been a waste of time, then? I don’t think so. The public’s view of what Title IX is has been defined by just one narrow band of interest groups that nonetheless dominates, in large part because there’s not much in the way of any alternative being presented.

Why the 3-part test won’t go

It’s politics. The Women’s Sports Foundation and National Women’s Law Center have made Title IX their highest priority, and it shows. Ever since the mid-1990s, with the Cohen vs. Brown decision and a policy clarification that made proportionality the de facto standard for sports compliance, the Title IX establishment has scored victory after victory, in courts of law and public opinion.

Rather uncritical mainstream media coverage hasn’t hurt with the latter, even though some reporters do a good job explaining the concerns of those advocating on behalf of displaced male athletes. But critics like the College Sports Council have struggled to get any kind of sustained traction for their views, outside of “he said, she said” stories purporting to demonstrate “balance” on a hot topic. And they simply don’t have the law on their side, as it is being interpreted by the federal courts. At times, the CSC can sound as shrill as the women’s groups it opposes, and that’s saying something. We have two entrenched positions that are ironclad. This will not spur meaningful change.

There’s also no willpower in Washington to change any of this. Title IX has become something of a third-rail issue, and frankly, it wasn’t a terribly high priority in Congress even before the current economic crisis. Bush’s education secretary didn’t act on his own Title IX commission’s recommendations, some of which tried to stake out at least a few new ideas worth pondering. They’ve been shelved, probably permanently.

It’s legal. There’s quite a bit of case law and legal precedent for maintaining the status quo. A new set of regulations would take years to craft into a workable set of options for colleges to follow, as guided by the courts. The Supreme Court declined to take up Cohen v. Brown in 1997 because there had been no disagreement at two lower court levels. There has been little since about anything significant regarding the 3-part test.

Football and proportionality

When football powers collide to decide a women's basketball championship. By Arlene Langer, IDI Sports.
When football powers collide to decide a women’s basketball championship. (Photo Credit: Arlene Langer, IDI Sports)

Because the 3-part test is here to stay, here’s another vexing issue that has been around for years: Should football be counted in the proportionality equation?

I’ve long said no — and so have others — because football is a different animal, both in having no female equivalent and with the specialized nature of the sport prompting large rosters. I say this realizing that this suggestion now is basically a non-starter.

Here’s a little history lesson: Two years after Title IX was passed, there was an effort in Congress to exempt revenue-producing sports. However, the Tower Amendment failed, leading to legislation that created the sports regulations we have now, including the 3-part test. I don’t see how any renewed effort to take football out of Title IX compliance will fly.

And given the current problems in college football, it’s implausible that any position to keep that sport away from the gender equity fray can be taken seriously. Even if it makes sense. If you make it a men vs. women thing, which the women’s advocates will do, it will be very easy to pinpoint where the more troubling issues lie.

Currently the Football Bowl Subdivision (formerly I-A) scholarship limit is 85; it used to be 120 before Title IX compliance began in earnest. I’ve thought for a while about cutting the number, perhaps to 70, and then taking football out of the picture.

But I hate the idea of more men being turned away. Even if you agree that football is bloated, there are real human beings who did nothing to hold back women athletes but who are paying the price for what happened before they were born.

I also loathe roster management, although keeping down costs is a persistent issue in football. Here’s another doozy from Ball State, which spent $88,000 to lodge football players before home games. The NCAA could put some teeth in curtailing this, but it hasn’t for years. Serious college football reform efforts would need to include much more than any impact on women’s sports, but those are about as likely to take place as scotching the 3-part test.

Title IX advocates insist there’s still a lot of fat remaining that needs to be cut. Especially below the BCS level schools do lose money on football, sometimes a lot of money.

The political reality is the women’s advocates won’t budge in having football tied to proportionality, and they’d raise holy hell if anybody tried to cut it out. Without football in the mix, most schools would comply with Title IX, and men’s and women’s non-revenue teams might get more proper attention.

These changes alone still won’t yield the money that would conceivably be redistributed to the women’s side. And scaling back football, even to a modest degree, has never encouraged a young woman to try out for a team.

Some other suggestions for reform

Sportswriter Beau Dure doesn’t think that football “should be given a pass.” But he suggests adding a fourth prong of compliance for schools that already provide a healthy roster of sports for women:

“If you’ve got fully funded women’s basketball, field hockey, golf, lacrosse, soccer, softball, tennis and volleyball, do you really have to add women’s-only rowing and equestrian just for equity’s sake? Or cut a men’s program for fear of following Brown as a loser in court?

“If I have a bias in all this, it’s as a fan of soccer and Olympic sports. They’re threatened — across the board. Women’s basketball has grown by leaps and bounds — at Duke, I attended games that drew a couple hundred fans; today, they draw several thousand. Great. Let’s invest elsewhere.”

What an amazingly sane idea.

Little room for optimism

However, the last thing the powerful women’s interests groups want is for colleges to actually reach compliance; it would endanger their advocacy. Besides, there’s fertile new ground for litigation at the scholastic level, and the National Women’s Law Center’s most recent publicity stunt is a declaration of these intentions. Hundreds, and perhaps thousands, of high school districts across the country face lawsuits and some very painful prospects at a time when many of them are laying off teachers, gutting academic programs and closing schoools.

More disturbingly, so-called Title IX legal experts are getting all dreamy about the future of the law, interpreting the current status as only just the beginning of where they want to go next. Says former NWLC attorney Deborah Brake in her recent book on Title IX:

“Degendering sports is an important part of securing sex equality in sports.”

Protect your privates, fellas. Here we go again. More on that later in the week.

Coming Wednesday: Do girls and women really need sports? Yes, this is another heretical question I’m asking here. But you may not be aware of the soul-crushing reasons women’s advocates have cited to virtually beg females to get in the game.

Women’s Sports Without Illusions: The Series.

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  1. Posted June 21, 2011 at 9:33 am | Permalink

    I have another heretical question: do girls and women need sports IN SCHOOL? Since most college scholarships come through high-cost club sports, do we really need to worry about equity in high school sports at all?

  2. Steve H
    Posted June 21, 2011 at 9:39 am | Permalink

    I think that the WSF/NWLC effort to extend gender quotas to the high school level may finally serve as the wake up call many that title ix has gone too far. College athletics can seem abstract to those not close to any of these programs and the media tends to frame college sports in terms of revenue sports that have professional counterparts. Though the media rarely mentions the very small percentage of college athletes that ever compete professionally.

    But forcing gender quotas on high schools will bring the problem home when people’s sons are told they can’t compete because they are upsetting the numbers while their daughters may, or may not, CHOOSE to participate.

    Perhaps at that juncture people will contact their members of Congress to complain?

  3. Steve H
    Posted June 21, 2011 at 9:47 am | Permalink

    Kurt brings up a good point.

    Certainly next year the WSF/NWLC will trot out their “list of 40” in celebration of the passage of title ix in 1972 with a list of those that don’t comply with their vision of title ix. In the past these have been colleges and universities at the 25, 30, and 35 year marks, the last iteration targeting a disproportionate number of HBCUs (whose enrollments are approaching 70% female).

    Will they target 40 high school jurisdictions next year? School Boards facing legal challenges from the well-heeled NWLC may decide to drop high school sports entirely instead of fighting in court and paying those costs, especially as budget are strained by the economy.

  4. Posted June 21, 2011 at 9:56 am | Permalink

    Kurt, you’re asking the question that’s partially the subject of tomorrow’s post. The women’s advocates believe that scholastic sports is where egalitarianism exists — and remember that in the long history of women in sports their leaders have always touted “a girl for every sport and a sport for every girl.”

    While I think there’s plenty of value in high school sports for boys and girls, the truth is that for better or for worse, elite young athletes are making club and travel commitments their priority. It’s a better level of competition and it’s where they get seen by college recruiters. You’re quite familiar with how the AAU girls basketball scene has changed, and this has been happening in soccer, softball, volleyball and track for years. In our neck of metro Atlanta, lacrosse is all the rage, and there are some good youth club organizations coming along that cater to boys and girls.

    Women’s advocates will tell you it’s not about cultivating the next wave of future stars, but allowing kids to play sports for its own sake no matter their talent or ambition. There’s a lot of validity to that point as well.

    Steve, you’ve hit on a great point that I’ll try to delve into a little bit more on Thursday, and that certainly will bear watching in the coming weeks and months. Try this at the local, high school level, and this gets at people where they live. For many kids, this is the last competitive sports they will play.

    Parents won’t want their sons’ experiences to be scaled back any more than they wanted their daughters’ dashed because of past bias. But unless the 3-part test is altered, I fear the same court rulings will result that we’ve seen at the college level.

  5. Steve H
    Posted June 21, 2011 at 10:31 am | Permalink

    We live in one of the major lacrosse hotbeds in the country. My daughter played travel lacrosse up to high school, played for a HS program that was ranked among the top 20 in the country at the time….and she hung up her lacrosse stick halfway through her junior year. She had other interests. She likely received more academic aid than most of her lacrosse playing peers anyway, since lacrosse is an equivalency sport.

    Division 1 womens’ lacrosse now has over 90 programs and our girls from Maryland are playing all over the country, from Oregon and California to Florida and New England.

    Meanwhile wrestling has fallen below 80 programs.

    But look at the high school participation numbers for those sports, both sports that I care about a lot.

  6. Posted June 21, 2011 at 11:01 am | Permalink

    Should football be counted in the proportionality equation?

    I’ve long said no — and so have others — because football is a different animal, both in having no female equivalent and with the specialized nature of the sport prompting large rosters.

    The WFA, IWFL, and WPSL called, and said “yes, there is a female equivalent.”

    As to why women’s tackle football exists solely (apparently) in the private sector and not in schools, with no plans to implement it is a question I leave to the philosophers. But while we’re being all heretical up in here and pushing buttons, that’s mine: yes, women do play tackle football. Really and truly.

    BTW I like this series. Whether I agree with all of it or not is beside the point. I appreciate the thoughtfulness in how your views on women’s sports/Title IX are being laid out, encouraging discussion. Very refreshing.

  7. Posted June 21, 2011 at 11:02 am | Permalink

    Correction: WSFL. The Tribune regrets the error.

  8. Steve H
    Posted June 21, 2011 at 1:41 pm | Permalink

    Women also wrestle and it is also an Olympic sport. A few states have girls championships, Hawaii and California immediately come to mind. But there simply aren’t the numbers of participants for that to rise to the Div I level and constitute a counterpart sport for males. A handful of small colleges have added women’s wrestling, but they tend to be private schools that are enrollment driven.

    The fact that there are some professional women’s football leagues doesn’t really meet the measure of interest and ability. Colleges and universities draw from the pool of high school participants. Remember that one of the supposed prongs is meeting interest AND abilities. This is why the WSF and NWLC are so opposed to any sort of survey. Someone might say that they are interested in playing football, but if they don’t have demonstrated abilities then that shouldn’t meet the criteria. Women’s Crew being an exception, but that is a whole other story.

    There are over one-million high school football players, no other sport comes close. There simply aren’t the numbers of participants to consider women’s football an emerging sport at the NCAA level. The 2010 NFHS participation survey showed 1,249 girls played 11-player football across the country. As mentioned previously, when schools reach the gender quota they are unlikely to add any sport regardless of some ground swell of interest.

    Men’s Field Hockey is an Olympic sport and there aren’t any major college teams while my alma mater dominates the women’s NCAA Division 1 level.

    Wendy indicated she is going to touch on competitive cheer, which we added at the University of Maryland strict separation from the sprit squads with the approval of the OCR. These women receive scholarships and compete as any other team does. Despite the outcry from the WSF there are over 120,000 high school participants in competitive spirit squads, plus crossovers from dance and gymnastics. The mainstream media attempts to dismiss them as the same as football cheerleaders, they are nothing of the sort.

  9. Posted June 22, 2011 at 10:55 am | Permalink

    A few other quibbles here, Wendy. While it’s true that our position on the use of quotas to comply with Title IX is diametrically opposed to that of gender quota advocates, I’d dispute that the CSC’s position is a roadblock to reform.

    For about the last decade, the CSC has been a lone voice when it comes to highlighting the unintended consequences of Title IX. If it weren’t for us and a handful of allied organizations like the Independent Women’s Forum and the Pacific Legal Foundation, the story about how Title IX quotas have resulted in the elimination of so many men’s athletic programs might not have gotten much attention at all.

    I’m glad to see some commenters here mention Title IX and high schools. Back in November 2010, the CSC was essentially the only organization talking about the threat that the NWLC’s actions presented. At bottom, the quickest way for the nation’s high schools to comply with Title IX quotas would be to simply equalize the numbers of male and female athletes on their rosters. And with school budgets stretched to the limit, that may very well be the easiest decision to make.

    In short, that presents a threat to over 1.3 million boys athletes. It was in February 2011 that the CSC joined together with the PLF to advise high schools that Title IX’s three-part test doesn’t apply to them, and that the law provided them with additional flexibility in complying with Title IX. Here’s hoping that others start paying attention sooner, lest we start seeing a replay of what’s already happened in intercollegiate athletics in the nation’s high schools.

  10. Posted June 22, 2011 at 5:47 pm | Permalink

    I understand where you’re coming from Eric. CSC has raised some valid points, but unfortunately the whole debate now seems stuck. These points have deserved more attention than from conservative media, political and legal organizations.

    At some point it’s going to take an impartial third party to step in and play a role, perhaps have a gender equity summit to at least begin to talk to one another in the same room, instead of firing from respective trenches.

    I don’t know who that third party may be, and I fear this may end up being more along the “Crossfire” format, where it’s he said, she said all the way.

    I didn’t delve into the high school issue deeply in this series because it’s all still relatively new — at least the latest NWLC salvo, and PLC’s answer. This will bear watching in the future but I’m afraid it’s going to be hard to make the case that high schools can be exempt when colleges are not, even if they both receive federal funding.

    I’m not a lawyer, and I don’t have any really good solutions here. But I at least wanted to throw some ideas out for discussion. Which is more than happens elsewhere.