Sexual Discrimination and School Sports: The Title IX Compliance Challenge: Will Increasing Funding for Women's Athletic Programs Require That Existing Men's Sports Be Cut?

Article excerpt

Title IX, signed into law as part of the Education Amendments of 1972, prohibits sexual discrimination in any educational institution receiving Federal funds. Specifically, "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 educational program or activity receiving Federal financial assistance." Since most schools and universities receive some financial assistance through title or chapter funds, research grants, or Pell grant financial aid programs, they must comply with the mandates of the law.

After more than 25 years, one would assume that all educational institutions would have had sufficient time to address inequities of opportunity and treatment within their athletic programs. As the Virginia Slims slogan suggests, women's athletics has "Come a long way, baby," as seen in the 2,100,000 rise in high school participation from approximately 300,000 females who competed in 1971. However, with an estimated 93% of colleges still out of compliance in at least one of the three components mandated by the law, it is obvious that there remains a long road ahead before equity is achieved.

Since 1992, addressing the required elements has accelerated. The Supreme Court's unanimous ruling in Franklin v. Gwinnett that punitive damages could be awarded provided that an institution intentionally avoided compliance with Title IX reinforces the adage, "When money talks, people listen." Further pressure occurred in April, 1997, when the Court declined to review a ruling by the First Circuit U.S. Court of Appeals in Brown University v. Amy Cohen. The school was attempting to overturn the proportionality standard, whereby the number of participation slots for males and females must mirror their over-all percentages in the full-time undergraduate student body, by arguing that women were less interested in competitive sports than men. No doubt the justices realized the "chicken-and-egg analogy" in that, without opportunity, how can interest be generated? Part of the explosion in women's sports and the excelling of the American females at the 1996 Summer Olympics in Atlanta, Ga., can be traced in part to the greater opportunities provided for women.

Title IX is composed of three separate components: I-Accommodation of Interests and Abilities: II-Athletic Financial Assistance: Scholarships; and III-Other Program Areas: Treatment. Currently, Component II pertains to higher education, but, with various governmental bodies considering, tuition credits, it could apply to secondary schools as well. The three components are evaluated separately, with an independent decision reached for each one. Thus, even though a school might be compliant with two of the three, it still is considered to be out of compliance.

Component I. Most lawsuits result from challenges to Component I, whereby an educational institution must meet the requirements in one of three different tests. Prong one, the proportionality test, indicates that athletic participation rates must be within five percent (the current interpretation) of the enrollment for that sex. Since most schools and universities do not meet that standard, they could satisfy prong two, provided they can show a history and continued practice of program expansion for the underrepresented sex by adding teams within the past three years. The speed with which teams must be added is determined by when the last addition occurred and the extent to which interest is being accommodated in light of the proportionality criterion. Some schools have attempted to circumvent the intent of the law by deliberately offering more teams than can be filled in one sport, rather than by providing opportunities in other sports, where sufficient interest exists.

Failing to meet one of the first two prongs, an institution may demonstrate compliance by showing that it fully and effectively has accommodated the interests of the underrepresented sex. …