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

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.

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Women’s Sports Without Illusions: The Series.

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.

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Women’s Sports Without Illusions: The Series.