Wither Title IX?
by Jonathan Linder

In a similar fashion to the Bush administration's decision to side against the University of Michigan's affirmative action policy, Secretary of Education Rod Paige has said the commission does not have a problem with the spirit of Title IX, but rather with its application through the use of quotas, or what is perceived to create a quota system.

Ergo, just as the administration disapproves of the Michigan formula because it is perceived to endanger opportunity for higher qualified white males, the current Title IX formula is facing its staunchest challenge to date because of concern that its application is minimizing opportunities for men.

The commission's nonbinding recommendations are intended to clarify the law and diminish the perception of a belligerent reliance on statistical equality. Far from achieving that aim, they cloud the spirit of Title IX and paradoxically strengthen the reliance on statistical appearances, only succeeding in lowering the standard for expanding women's sporting opportunities.

Since the advent of Title IX, participation slots in a wide range of men's "minor" sports — those sports that typically do not receive national attention and are not profitable — have declined. The most-often cited example is wrestling — where more than 160 collegiate programs have been cut while the sport has undergone substantial growth at the high-school level. The tremendous net reduction in athletic opportunity for wrestlers and other male athletes is a concern that should be addressed. But the radical changes the commission has brandished would stymie the momentum of women's athletics growth, and are unlikely to expand male opportunities in kind.

Some minor changes to Title IX included in the recommendations, such as a limited exemption for non-scholarship athletes, would be productive. So would an effort to subsidize collegiate athletics, along the lines of legislation proposed during the 107th Congress by Rep. Jim Leach (R-Iowa) and the late Sen. Paul Wellstone (D-Minn.), which would reduce universities' reliance on football profits and boosters and return a bit of collegiate athletics' amateur status.

The major arguments in favor of an overhaul of Title IX range from the disingenuous — that enforcement establishes a quota system — to the disgraceful — that current collegiate participation mirrors women's capacity for interest in athletics. These arguments are not new, and Title IX has withstood many court challenges that expounded these beliefs, but not since 1979 has the department in charge of writing the rules and regulations that govern the law's application flirted with the possibility of drastically changing the manner in which the law's athletics component is enforced. (Though the athletics portion receives the most attention, Title IX applies to all areas of education receiving funds from the federal government either directly or indirectly.)

In 1979, the then-Department of Health, Education and Welfare's Office of Civil Rights set up a three-part test through which schools could establish compliance with Title IX's athletics component. If an institution satisfies one of the three criteria, with respect to 13 separate areas of Title IX compliance, they pass the test. According to the NCAA, a school can achieve compliance by providing "participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment," demonstrating "a history and continuing practice of program expansion for the underrepresented sex," or "fully and effectively accommodating the interests and abilities of the underrepresented sex."

The "substantial proportionality" test — in other words, that men's and women's athletics participation rates need to mirror as closely as possible the proportion of men and women in the student body — receives the most publicity, and is the subject of the derisory and fraudulent complaint that Title IX establishes a quota system.

According to a June 22, 1997 article in the Houston Chronicle, the Government Accounting Office reported that of 80 complaints filed with the OCR between 1992 and June 1996, 42 were resolved using the "full and effective accommodation" test and only 16 used proportionality. Furthermore, it is the respective institution, not the NCAA or the OCR, that determines which test will be used. Rather than create a quota system, Title IX simply asks that universities make a good-faith effort to create athletics opportunities.

As a Washington Post editorial pointedly stated, Title IX is an historically under-enforced law that gives universities great latitude. In order to clarify the law and avoid the apoplectic cries of strangling quotas, administrators simply need to understand what they are being asked to enforce.

Far from eliminating the perceived reliance on cold statistics, the proposed changes to the OCR's rules would adjust the manner in which the substantial proportionality clause is calculated, to fall closer in line with the status quo. The recommendations call for an adjustment in the way athletic participation slots and undergraduate enrollment is calculated with respect to Title IX. Odd, then, that an effort purportedly to limit the reliance on statistics and quotas would simply reinforce the myth that quotas exist, but revel in the possibility of lowering that pseudo-quota's expectation.

This celebration of the status quo feeds into the second main argument—that female interest in athletics does not warrant a continued vigorous pursuit of expanded athletics opportunities.

To paint this picture, a comparison is drawn along lines of interest survey results showing a greater desire to participate in athletics among males and greater participation rates among men in collegiate intramural athletics. While the merit of interest surveys and intramural athletics participation rates is debatable, even if it is assumed that women care less about sports presently, that is insufficient reason for closing doors to opportunity in the future.

In 1971, women made up just 15 percent of collegiate athletes. Today that figure stands at 42 percent. Arguing that the perception of female capacity for interest in athletics should govern what is fair opportunity operates under the implicit notion that women and girls have maxed out their interest in athletics and that Title IX should have been limited to a 30-year window of opportunity, at which time all bets were off.

Title IX should not be viewed as a zero-sum game, yet the commission's recommendations exacerbate the image that for every opportunity created for a women, one is lost for a man, while disregarding the most significant reason that low-profile sports have suffered—money.

The schools that have created the most opportunity for both men and women in athletics are invariably those that have highly profitable football programs. The catch is that a substantial investment — at the cost of other programs — is a necessary precursor to such an achievement.

An effort to subsidize college athletics would free universities from relying on football boosters and bowl games — or statistical gimmicks — and give institutions real flexibility to create and sustain athletics opportunities without diminishing the spirit of Title IX.

E-mail Jonathan Linder at jglinder@yahoo.com.