GPSOLO January/February 2010
I have always enjoyed sports and am a strong believer in the positive impact sports have on children. Every person should have the equal right to participate in sports, regardless of skin color, social status, or gender. Sports builds character and emphasizes the values of teamwork, perseverance, and hard work.
I will first of all admit that I am not, nor do I consider myself, an expert in the area that forms the topic of this article. I do not practice in this area and have no desire to do so. Therefore, this article will not examine the merits of Title IX. I only attempt here to educate others (as I have educated myself) and allow them to form their own opinions about the utility and validity of this legislation. Admittedly, this legislation is the subject of some controversy.
Originally Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681, et seq., the act was renamed in 2002 as the Patsy T. Mink Equal Opportunity in Education Act in honor of its principal author, who passed away in 2002. The law states: “No person in the United States shall, on the basis of 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. . . .” The act specifically applies to “institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education.” The act specifically exemptseducational institutions controlled by a religious organization if the application of the act would not be consistent with the religious tenets of the organization; educational institutions training individuals for military services or merchant marine; institutions that “traditionally and continually” have had admissions policies admitting only students of one sex; social fraternities or sororities or voluntary youth organizations such as the YMCA or YWCA, Girl Scouts, Boy Scouts, Camp Fire Girls, Boys and Girls State and Boys and Girls Nation; father-son and mother-daughter activities at educational institutions; and institution of higher education scholarship awards in “beauty” pageants.
Although the major emphasis and impact of Title IX appear to have been in the area of intercollegiate athletics, the original statute made no mention of athletics. The act covers all aspects of education such as admissions, math and science education, as well as access to health care and dormitories. In the area of athletics it applies to grants-in-aid, graduation rates, the provision of tutors, and coaches’ salaries, among other items. It also applies to non-sport activities such as bands, cheerleaders, and clubs, except as noted above. There has been litigation in such areas as art museums, buildings and grounds, prisons, state high school athletic associations, and student grants. In fact, the use of Title IX has been expanded to employment discrimination cases, such as sexual harassment, maternity leave, equal pay cases, and the denial of tenure.
Because Title IX applies only to public and private schools that receive federal funding, several states have enacted similar laws to prohibit discrimination based on sex. Those states are Alaska, California, Florida, Georgia, Hawaii, Illinois, Iowa, Maine, Minnesota, Nebraska, New Jersey, New Mexico, New York, Rhode Island, South Dakota, Washington, and Wisconsin. The activities and extent of coverage of these laws vary from state to state. For example, the legislation in my home state of New Mexico prohibits discrimination but only imposes a duty on the local school districts to study and file reports. It was a compromise bill; the original legislation had much broader coverage that was eliminated in the final version, in particular the requirement to examine areas such as graduation rates, equalization of academic opportunities, athletic facilities, the provision of tutors, and coaches’ salaries. Opponents of this legislation argue that the net effect of the law will be to decrease the amount of funds available for interscholastic athletics for both sexes because the local districts will have to hire a person to compile the data and prepare the reports at the very time when statewide financial constraints are forcing school districts to reduce their budgets by 5 percent across the board.
In 1992, 20 years after the enactment of Title IX, the U.S. Supreme Court ruled that schools that failed to comply with Title IX could be sued for compensatory and punitive damages ( Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992)). The Franklin case involved a female high school student who had been sexually harassed by her high school teacher. Interestingly, this case did not involve a claim alleging discrimination in athletics.
Section 844 of the Education Amendments of 1974 gave the U.S. Department of Health, Education and Welfare (HEW, now the Department of Health and Human Services) the mandate to develop proposed regulations implementing the provisions of Title IX. By the end of July 1978, HEW had received nearly 100 complaints alleging discrimination in athletics by 50 institutions of higher education.
In response to the high number of complaints, HEW issued in 1979 a policy interpretation for Title IX, including what has become known as the “three-prong test” of an institution’s compliance. Under prong one, institutions must provide athletic opportunities that are substantially proportionate to student enrollment. Prong two requires that institutions demonstrate a continual expansion of athletic opportunities for the underrepresented sex. Prong three requires that institutions provide full and effective accommodation of the interest and ability of the underrepresented sex. Satisfaction of any one prong represents compliance with the provisions of Title IX.
One area of concern involved football. Clarification was needed because of the large number of male participants and the cost involved; many major institutions were concerned that they would not be in substantial compliance.
The policy interpretation stated that with regard to financial assistance, all such assistance should be available on a basis that was “substantially proportionate” to the number of male and female athletes in the institution’s athletic programs. The governing principle is that male and female athletes should receive “equivalent” treatment benefits and opportunities; this principle applies to equipment and supplies, games and practice times, travel and per diem, coaching and academic tutoring, assignment and compensation of coaches and tutors, locker rooms and practice and competitive facilities, medical and training facilities, housing and dining facilities, publicity, recruitment, and support services.
With regard to prong three, meeting the interests and abilities of male and female students, the governing principle is that interests must be “equally effectively accommodated.” This language has led to some very interesting policy interpretations by the courts.
One such case is Pederson, et al. v. Louisiana State University, et al., 213 F.3d 858 (5th Cir. 2000). In this case, Beth Pederson and other female students at Louisiana State University brought a Title IX class action against the university seeking to force it to establish and support women’s soccer and fast-pitch softball teams. After an exhaustive analysis of these students’ standing to sue, the court concluded that these female students lacked standing to bring an unequal treatment claim and unequal accommodation claim regarding soccer. However, the court found that these students did have standing to bring an unequal accommodation claim regarding fast-pitch softball and that the university violated Title IX by not providing a fast-pitch softball team for women. The court also held that these students could recover attorney fees for certain discovery violations.
In a “shoe on the other foot” case, the board of regents of Western Kentucky University (WKU) decided to upgrade its football program from 1-AA to Division 1-A, a classification that would result in more grants-in-aid to male athletes. However, at the time WKU was in the unique position of having a disproportionately larger number of female athletes on scholarship, thus placing WKU out of compliance under Title IX. By upgrading its football program, WKU increased the percentage of male athletes on scholarship. However, the next year, WKU dropped men’s soccer.
There’s the rub and the source of controversy between some advocates and opponents of Title IX. The opponents argue that Title IX, particularly at mid-major and lower-level institutions, discriminates against male students; they contend that “minor” sports such as wrestling, soccer, and tennis must be cut for men as a result of the requirements Title IX places on the institutions. The advocates of Title IX respond that Title IX does not require that an institution cut these sports, and that it is an institution’s choice to cut back in this manner. The courts have found that decisions to cut these sports are not discriminatory, and that the institutions have a legitimate basis for their decision.
As we all know, college athletics is big business. Athletic budgets run into the millions of dollars, and many institutions depend on “major” sports such as football and basketball to raise the revenue necessary to fund the non-revenue-producing sports. Opponents of Title IX argue that the decision to fund some sports and not others—particularly for male sports—is predicated by compliance with the act; if the institution does not have the money to field men’s and women’s sports in all areas, then it must make the difficult decision to cut sports teams. I will leave to the advocates and opponents the debate over whether this is truly the effect or the intent of Title IX.
I will say, however, that this is a fascinating area of the law and possibly a burgeoning one because of the expansion of Title IX to other areas of discrimination in institutions of secondary and higher education. Although there have certainly been increases in the number of females participating in athletics, the debate continues as to whether these increases would have occurred even in the absence of Title IX. There have been attempts to do away or significantly reduce the impact of Title IX. In these difficult economic times, such attempts may increase.