Some ideas for reworking Title IX

This is the sixth 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.


Since I’ve been saying for quite a while that the 3-part test for Title IX sports compliance is flawed, I thought I ought to propose how the law might be improved. I’m not alone in suggesting at least an evaluation of where we are after more than 30 years, but you probably won’t hear much about all that this week, with Thursday’s 39th anniversary of the passage of Title IX approaching. The Sisterhood chanting has already begun. It will be largely uncritical.

The College Sports Council, which has called for changes to Title IX for a number of years, wants to reinstate the interest survey (boosted by the Bush administration in 2005 but booted by the Obama administration in 2009). This is a non-starter for the Title IX diehards, who claim that women are as interested in sports as men. While I generally agree with the CSC on Title IX issues, it offers few other ideas on reforming the law.

I may under the biggest illusion of all in believing that the 3-part test can be replaced with new regulations to fit the times. But I’ll throw out a few ideas that are by no means anything more than that.

But first, here are the three options for Title IX sports compliance that were adopted in 1979:

— The percentage of female and male athletes is substantially proportionate to the percentage of female and male undergraduates, respectively.

— Demonstrate a history of continuing and expanding opportunities for the underrepresented sex (women in virtually every instance).

— “Fully and effectively” accommodate the interests and abilities of the underrepresented sex (again, this is almost always females).

Why the 3-part test must go

It’s antiquated. When the HEW policy interpretation cited above went into effect, women were in the distinct minority in college athletic programs, and far below parity in higher education overall. The latter is hardly the case today, with women comprising in many cases 55-60 percent of a college’s undergraduate enrollment.

With regards to the first test, while women are not at 50 percent in most cases in athletic departments, they are surpassing that in some instances, even at programs with large football programs. Example in my backyard: The University of Georgia, where 52 percent of the athletes are women. But because the female undergraduate enrollment is 58 percent, a school with one of the most successful women’s athletics programs in the nation is vulnerable to Title IX litigation.

That’s why UGA likely will add another women’s sport in the near future. Like many schools, it is open to a lawsuit for reasons having nothing to do with sports, but rather how many females, most of whom will never suit up, gain admission through a non-athletic component of the university administration.

It punishes male athletes. Title IX absolutists expect athletic departments to keep up with enrollment patterns, but to reasonable people this truly is the warped logic of proportionality. Georgia hasn’t cut men’s teams to move closer toward complying with the first test, thanks to bulging athletic coffers. But it’s the exception and not the rule.

As for the second test, there’s no seeming end to how long women’s teams may be added. There’s one big problem: There aren’t that many more sports to add. The NCAA’s list of Emerging Sports for Women, which is compiled to assist athletic programs with Title IX compliance, currently has only four sports, and one of them, squash, will be dropped in August.

The other three sports don’t figure to attract a groundswell of support; indeed, both equestrian and sand volleyball were issued reprieves by the NCAA last year after failing to add enough varsity programs to “show promise” of being NCAA-sponsored sports. The other is rugby, which currently has only two varsity women’s teams in the entire nation. If the NCAA can’t find any viable new sports to add then perhaps “emerging” is the wrong choice of words.

Lacrosse, now reaching into the Deep South, may be the only women’s sport left with major growth potential. There’s also the controversial subject of competitive cheerleading, which I’ll discuss in a later post this week.

As for the third test, it’s hard to “accommodate the interests and abilities” of the underrepresented sex if you can’t adequately survey what those interests may be. The Title IX establishment doesn’t trust interest surveys, claiming they could get caught in an e-mail spam filter. It’s more likely they fear the answers that women students may provide won’t jibe with their proportionality ideal. A political favor by the Obama White House has made the activists happy (as conservative interests were pleased with the 2005 Bush policy clarification), and that’s all that matters. This prong has been effectively neutered.

What I’d like to see

The battle to get girls and women in the game has been a resounding success. Shifting the Title IX compliance framework away from participation and toward taking care of what’s been built is a possibility worth pondering.

Another example in my backyard: Two years ago, Georgia Tech — which because of its low female enrollment achieved proportionality years ago — opened a beautiful new on-campus softball stadium for its nationally ranked program. Tech has just seven teams for women, and is the only school in the ACC without a women’s soccer program. Without the pressure of having to add teams, Tech is better resourcing what teams it has, which helps with recruiting and enhances the student-athlete experience.

Throughout the country, there are still are plenty of disparities in facilities, funding, equipment, travel and recruiting budgets and related components of operating a college sports team. This is part of Title IX compliance, too, but it’s overshadowed by the furor over the 3-part test. A recent series of stories in the Ball State student newspaper illustrated what work remains to be done, and it is considerable at that school and many others.

Imagine this: Instead of wasting time and money adding teams in obscure sports that struggle to attract participants, schools could use those dollars on better venues, improve coaching salary scales and create an environment for women athletes that’s truly special. New regulations based around these deficiencies would fulfill the spirit of Title IX better than the current numbers game athletics departments have to play to get right with proportionality.

So much of the money that is spent on women’s sports has often come with little of what I call emotional support, and this might be the biggest shortcoming of all. Too many athletics directors simply throw money at women’s teams because they have to under Title IX, and then go off and deal with football boosters or new arena architects. They don’t want to be bothered.

Far too many women’s teams, especially in basketball, could stand to be better marketed and promoted. There’s plenty of TV exposure in hoops thanks to rich conference multi-sport deals, but a more ground-level marketing wouldn’t hurt. If they’re not going to make money, at least they could draw more of a crowd. Too many schools do too little in this regard, and this change has to start at the top.

On the other hand, women’s sports activists who have won resoundingly in the courts for their cause also have won over few people with their us vs. them, to-the-death tactics. It’s hard to give something emotional support when you might be sued by people who have no interest in persuading you to care.

Coming Tuesday: Why all these ideas — or anyone else’s — are likely to go splat. And why unwedding football from proportionality is a longshot.

Women’s Sports Without Illusions: The Series.

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  1. Posted June 20, 2011 at 12:51 pm | Permalink

    You’ve hit pretty close to a question I’ve raised often — asked Nancy Hogshead-Makar directly in a forum at Duke a few weeks ago, in fact: Why would North Carolina (and Georgia) be under more pressure to add a women’s sport than Georgia Tech would be to add women’s soccer?

    The point of Title IX as I understand it is to equalize all opportunities, not just athletic opportunities. Georgia Tech is an engineering school. Engineering schools struggle to attract women.

    I’m not saying a women’s soccer team at Georgia Tech would solve centuries of societal bias toward women in math and science, but wouldn’t it go a little ways toward dispelling the notion of Tech as a bunch of dudes with pocket protectors? Surely it would be a greater sign of progress for women than a women’s tiddly-winks team at North Carolina.

    Finally — not to interrupt, but what are your World Cup picks?

  2. Matt Zemek
    Posted June 20, 2011 at 1:03 pm | Permalink

    This whole series has been excellent, but I find today’s arguments and evidence to be particularly effective in exposing the quota-based, “do-it-for-the-sake-of-doing-it” mentality behind current Title IX compliance structures and mechanisms. It’s so nakedly apparent from the information presented in this essay that individual schools are being forced to rearrange their programs to fit uniformly-imposed goals that do not account for local/regional/cultural realities on the ground.

    I would classify myself as very much a political lefty, but this is certainly the kind of meddlesome, doctrinaire government overreach that understandably makes political righties so (justifiably) irritated.

    I see strong parallels with affirmative action here. Like Title IX, it had a place and a powerful, meaningful purpose when it was first formulated. Much as quota-based racial policies have needed to be redesigned/rethought, Title IX components have to be re-imagined and reshaped as well.

    In the language of Scripture and spirituality, we need to realize that “there are different gifts, but the same spirit.” Timeless values and unchanging social goods won’t keep the same form/architecture over 40 years. That which brought about greater social justice in 1972 might not be conducive to the same flourishing of social justice today.

    Adults in positions of NCAA administrative leadership (and in the legal/academic circles of women’s sports and women’s causes) should be able to see this. Alas, ideology blinds otherwise-talented people to real-world solutions. It is the great, persistent obstacle to change in any era.

  3. Posted June 20, 2011 at 2:54 pm | Permalink

    I love your series and truly hope that it starts a dialogue in this country to affect meaningful change in Title IX legislation and the manner in which it’s administered and enforced in college athletic departments.

    Find it interesting that you view Georgia Tech’s philosophy towards women’s athletics as a positive example: “Without the pressure of having to add teams, Tech is better resourcing what teams it has, which helps with recruiting and enhances the student-athlete experience.” Understand the overall point you are making, and while the statement is true, Tech’s decision not to add women’s soccer as a NCAA sport plays into the hands of hard line Title IX advocates. I can imagine them saying, if you don’t mandate it, they won’t do it. Just look at Georgia Tech.

    How does Georgia Tech justify not adding Women’s soccer as an intercollegiate sport, when everybody in the ACC, except Tech, offers women the opportunity to compete in NCAA soccer? Given the popularity of youth soccer in this country and in the south, I think it’s shameful that they don’t have a women’s or men’s soccer program (NCAA.) I know the interest is there on both sides:
    What’s their excuse? Would love to see you, or your sports colleagues in Georgia tackle this issue. Other schools may not need pressure on Title IX issues, but Georgia Tech definitely needs to be pressured on this issue, because they’re not “playing the game the right way.”

    “Playing the game the right way” is something that coaches like to espouse to their athletes; the same philosophy should be a guiding light to those that lead athletic departments. The missing element in most Title IX discussions is “COMMON SENSE.” Adding intercollegiate soccer for both sexes at Georgia Tech is a no-brainer. Do the right thing!

  4. Posted June 20, 2011 at 4:12 pm | Permalink

    As for Georgia Tech and women’s soccer, I should have mentioned in the post that a previous AD did want to add that sport about 10 years or so ago. But there was not an on-campus facility and apparently there were money issues. He also eventually wanted to add men’s soccer since the conference is also strong in that sport.

    My point wasn’t to make it sound like a “positive example” that Tech doesn’t have women’s soccer but to show that because they’ve met proportionality, they could back away from from adding that sport while most other schools couldn’t cite those factors as reasons for not doing so. This is another layer in the fallacy of proportionality.

    I also wanted to illustrate what you can do when you’re not legally vulnerable to a Title IX suit. I should have been more clear about all of these things.

    As for the Women’s World Cup, it’s hard to go against Mannheim Steamroller, especially at home. But I will be intrigued what this Equatorial Guinea side is all about.

  5. Matt Zemek
    Posted June 20, 2011 at 4:40 pm | Permalink

    Clarence Gaines (and Wendy, of course):

    I understand the basic position you’re espousing, Clarence. Let me speak from my experience in 2009 at the convention for the International Association for the Philosophy of Sport (IAPS), held in Seattle at my alma mater, Seattle University.

    (Wendy, as an aside, the people at this organization strike me as the academic types with the jargon-rich speech you lamented last week. Yet, while some of them were the hard-to-decipher ideologues you identified, many others were Title IX reformists such as yourself. That would be an interesting group to research if you don’t already know of its existence.)

    One of the best people I met at that 2009 IAPS gathering was Scott Kretchmar (I could have the spelling wrong), a man with extensive experience at Penn State University in terms of Title IX and other forms of athletic department compliance. Kretchmar pointed out to me that Penn State has 29 sports while Texas facilitates 16. Penn State chose to place more of an emphasis on participation while Texas focused on making the sports it supported more profitable and resourced. On one hand, I find PSU’s commitment to fielding more participation-based programs quite admirable, but on the other hand, it’s hard to dispute the comparative financial success of Texas’s athletic department. Without having spent any time in University Park or Austin, I would imagine that the on-the-ground cultural realities at Penn State and Texas are substantially different. Are there enough female athletes at Texas interested in the several extra participation-oriented sports Penn State carries? Moreover, is Texas institutionally invested in and financially served by facilitating those extra sports?

    Since college sports are, after all, a business – especially at the big-ticket level – it makes a ton of sense to adopt the focus on giving emotional and real support to women’s sports programs instead of insisting on having 29 sports programs at Texas, just like Penn State. The area/aspect in which Texas might merit criticism is that since its athletic program is one of the few really profitable ones (this before the Longhorn Network even makes its official debut), it should be able to field more than 16 programs. However, the notion of having 29 sports the way Penn State does and then establishing that as a model of Title IX compliance strikes me as systemic engineering.

    We should want there to be ample opportunities for women’s soccer players, but that goal should find fruition in the existence of more thriving women’s soccer programs, not more women’s soccer programs which fail to thrive because they’re not emotionally/materially supported.

    I laud Penn State and the likes of Mr. Kretchmar for fielding 29 programs and giving them what seems to be adequate emotional support while Texas carries only 16 sports, but in a bottom-line business, it’s clear that Texas isn’t failing the athletes it chooses to support. Both are healthy models, yet in such different forms. Sensible, elastic Title IX reform should allow both Penn States and Texases to exist without requiring one program to be more like the other.

    Postscript: As lengthy as this comment has been, Clarence, it’s very much a discussion starter as opposed to a discussion ender. This is where we must begin to hash out differences. I am very much ignorant of how to get to the endpoints/solutions Wendy is advocating (but which I think are highly appropriate).

  6. Posted June 20, 2011 at 5:00 pm | Permalink

    Penn State has 29? Ha! MIT has 30!

    (More seriously, good point.)

  7. Steve H
    Posted June 21, 2011 at 8:53 am | Permalink

    The reason GT likely didn’t add womens’ soccer is the is the dirty little secret the WSF and NWLC won’t admit. By forcing schools to meet a gender quota in athletics participation they actually place limits on opportunities for both men and women. men by eliminating teams or placing roster size limits. Women because, once a school meets the gender quota, they are out of the woods with regard to title ix compliance.

    Almost 40 years after passage title ix has met the goal of providing access to academics for women, time to sunset it.

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

    Another excellent entry today, though as I’m sure you would anticipate, the CSC would quibble with your view that we have few ideas for reform outside of strengthening interest surveys. We have said all along that the CSC supports Title IX as written. We’ve long been on the record supporting equal facilities for men and women. We’ve also been clear that we support the whistleblower provisions within Title IX that protect coaches and administrators from retaliation for speaking out against violations of the law.

    If we seem fixated on the quota issue, it’s because the use of quotas to enforce Title IX has caused such damage to men’s athletic programs while creating serious distortions in women’s athletics. If we allow more flexibility in proving compliance, much of what you propose as a new agenda for the law would actually become possible.