A Lesson in English and Gender: Title IX and the Male Student-Athlete

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INTRODUCTION

A young boy sits in English class, staring out the window at the empty basketball court on the playground. He wonders why he has to learn that "ball" is a noun and that "round" is an adjective. He daydreams about the day when he is no longer forced to sit in class, the day when he is a college basketball player who calls his own shots and does not have to study because he is "going pro" someday. Why would he need to go to school when he will be making millions of dollars and having thousands of fans scream for him at every game?

Next to the young boy sits a young girl. She, too, is gazing out of the window at the empty basketball court on the playground. She also dreams of being a college basketball player who is "going pro" someday. She does not wonder why she has to learn that "ball" is a noun and that "round" is an adjective, because she understands that her basketball skills will only take her to a certain level in her life. An education will enable her to go beyond the limits of the basketball court.

Years later, these two childhood classmates both attend college on basketball scholarships. They are student-athletes and are quite successful athletically, but they both find it difficult to balance the demands of athletics and academics. They discover that there are times when they feel like they are back in that English class, trying to determine which words are nouns and which are adjectives. The lesson is not as easy as "round ball" because the words they are examining are "student" and "athlete," which are hyphenated to make "student-athlete." Or is it "athlete-student?" Which one is the noun and which one is the adjective? Are they both nouns? Are they both adjectives? Is the term "student-athlete" an oxymoron?(1)

The young girl, who is now a young woman, recognizes that she is a student first and an athlete second. She is a student who possesses unique athletic abilities. She has capitalized on those athletic abilities in order to receive a "free" education. No matter how many professional offers she receives, she is committed to completing her education. She graduates with a respectable grade point average and with plans of either playing professional basketball for a few years or heading straight to medical school. She is thankful for Title IX, because she believes it has given her opportunities she otherwise would not have enjoyed.

In contrast, the young boy cannot distinguish between a noun and an adjective. He is consumed by his athletics, allowing his academic pursuits to fall by the wayside. He has exploited his athletic abilities in order to receive a "free" education. He considers leaving college early to pursue his professional aspirations, but he is permanently injured at the close of his junior season. He never graduates from college. In fact, it is determined that he is illiterate even though he maintained his National Collegiate Athletic Association (NCAA) academic eligibility for three complete seasons. Ironically, the NCAA has provisions in place to protect individuals like this young man from such a fate, but unfortunately the NCAA regulations fell short.(2)

The young man later sues his educational institution for its failure to educate him. His claim fails under an educational negligence cause of action. Should he be entitled to a remedy? Does he have a cause of action under another claim? His attorney decides to take a step back and to look at the situation from a different angle. His attorney learns that throughout the recruiting process, the young man's coach promoted the "quality" education that the young man would receive. The coach also repeatedly scheduled practice times during the young man's tutoring sessions and then threatened to revoke his scholarship if he did not attend practice. The attorney discovers that the coach, with the support of the university, knowingly denied the young man the opportunity to obtain an education by engaging in such practices. The attorney also learns that the women's basketball coach did not engage in similar practices. She only recruited female athletes who could survive academically at the university, and she scheduled practice times around the schedules of her athletes who were student teaching. Due in part to her strong commitment to academics, her players all graduated, and the team grade point average ranked in the top 5% among similar female teams across the nation. The attorney concludes that such a disparity in educational opportunities is a violation of Title IX. The young man may have a remedy.

This young man's experience is not uncommon. As his experience suggests, the current state of male student athletics is a mess. The current system disregards the "student" element of the male student-athlete. In contrast, female student-athletes do not experience a system that consistently disregards academics. Male student-athletes need assistance in fixing this state of disarray. They have attempted to remedy their situations through judicial means. However, they have consistently failed to recover under an educational negligence cause of action. Although male student-athletes should continue pushing for recovery under an educational negligence theory, they also may have a judicial remedy under Title IX, because they are being denied equal access to educational opportunities.

Part I of this Note defines the problem this young man and other similarly situated male student-athletes face and highlights the differences between female and male student-athletes. Female student-athletes enter college and find an extensive academic support system to assist them. Such a support system includes more than just tutoring opportunities. A female support system encompasses academically focused coaches and academically minded teammates. It extends beyond maintaining eligibility and centers on taking advantage of academic opportunities in order to assist the female student-athlete in building a future beyond athletics. Conversely, while male student-athletes may find an academic support system in place, they often discover that such a system aims at just keeping students eligible rather than focusing on their futures. Additionally, the male student-athletes may not have the opportunity to utilize the support system's benefits, because they are singularly focused on their sport. This part presents examples of how female student-athletes succeed in their environment and how male student-athletes struggle.

Part II discusses the judicial remedies this young man and other male student-athletes may have under an educational negligence theory or under Title IX. This part concludes that a male student-athlete most likely will not recover under an educational negligence theory, because courts refuse to make determinations about the quality of education. Courts would rather leave such decisions up to the individual universities. However, this part argues that a male student-athlete may have a cause of action under Title IX on the grounds that he was denied equal access to educational opportunities. This part also discusses recovery under an "extrapolated sexual harassment" theory: he may have a remedy if the university knew about and had control over an environment in which he was deprived of access to school resources and educational opportunities.

I. THE PROBLEM

The emphasis coaches and institutions place on academics differs significantly for female and male student-athletes. Female student-athletes benefit from a strong support system that enables them to be both students and athletes.(3) While they intensely pursue athletics, they also find time to study for their classes and to become involved in their local communities. Many graduate from college with memories of great athletic experiences and with substantive degrees with which to build a future outside of athletics.

By contrast, many male student-athletes encounter a weak or nonexistent support system that hinders their ability to balance both academics and athletics. When they intensely pursue athletics, they discover that they must sacrifice their academic goals. Many do not graduate from college; others graduate without substantive degrees or even the ability to read. Their memories of roaring crowds cheering for them are insufficient tools with which to build a future.

A. The Female Experience

   In proper proportions, being an athlete and being a student can be
   synergistic.... this is more likely to be the case in women's sports.(4)

As a whole, female student-athletes are more well-rounded than male student-athletes, because when they enter college they are given the opportunities and the support systems that enable them to balance athletics, academics, and even community involvement. In 1990, Barbara Bedker Meyer conducted a study of female student-athletes' feelings concerning their roles as student-athletes.(5) She found that the female athletic subculture offered support for both academics and athletics.(6) Female student-athletes pushed each other to maintain respectable grade point averages.(7) Female student-athletes also did not experience "anti-academic" or "anti-intellectual" pressures from their peers.(8)

This study suggests that these women go to college to be students first and to be athletes second.(9) For most women, once their NCAA eligibility expires, their organized athletic careers are over. Coaches have recruited these female athletes by not only stressing the quality of the institutions' athletic programs but also their academic strengths.(10) Once women are on campus, they also provide a support system for each other--academically, athletically, and socially. For example, Meyer found that some women's teams "were very concerned about academic performance, creating a contagious atmosphere wherein all the players tried to do their best in addition to helping their companions to achieve."" Such a support system enables female athletes to succeed on both academic and athletic levels.

The 1985 Adler and Adler study examining the relationship between athletic participation and academic performance among male student-athletes found that male student-athletes also enter college optimistic about their academic prospects.(12) "However, their athletic, social, and classroom experiences lead them to become progressively detached from academics."(13) For example, one male student-athlete was ridiculed for earning a "B" on a test; the rest of his teammates received "D's" and "F's".(14) Like their female team counterparts, during recruitment male team coaches stressed "the positive aspects of a college education and the importance of graduating."(15) However, once the veneer wore off, athletes found that their coaches subordinated academics to athletics(16)

Graduation-rate statistics support the findings of these two studies. Female student-athletes, as a whole, are more likely than their male counterparts to graduate from college. In 1999, the NCAA reported that 68% of female student-athletes graduated compared with 52% of male student-athletes.(17) More specifically, 62% of female basketball players graduated,(18) while 41% of male basketball players graduated.(19) Even in less demanding sports like cross-country and track, female student-athletes still graduated at a rate 10% higher than male student-athletes (63% versus 53%).(20) Interestingly, the female student-athletes graduation rate was 12% higher than the total student body graduation rate of 56%, whereas the male student-athletes graduated at a rate 4% lower than the total student body.(21)

Three recent graduates of NCAA Division I member institutions are prime examples of female student-athletes who not only graduate but retain outside interests and lead well-balanced lives. First, Vanessa Webb was a triple major at Duke University and the 1998 NCAA singles champion in women's tennis.(22) Rather than turn professional after her junior year at Duke, Webb decided to complete her senior season:

   The reason I came back to school was to get my degree. A three-year
   education isn't going to get me anywhere. And if I didn't come back I would
   have been letting the team down. The Tour would wait one more year; that
   was my last chance to be at Duke.(23)

Second, Aliana Kipps was a co-captain of the University of Southern California's (USC) women's volleyball team who "graduated with a perfect grade point average in psychobiology."(24) While at USC, she found time to work with HIV-positive children. Her well-balanced approach to being a student-athlete paid off; she now is a medical student at Harvard University.(25)

Third, Phylesha Whaley, a former basketball player for the University of Oklahoma and now a member of the Women's National Basketball Association's (WNBA) Minnesota Lynx, found time for more than athletics.(26) Whaley was a two-time All-Big 12 academic team member, and she volunteered for Meals on Wheels, Sooner Big Sis, and the Special Olympics.(27) As a student, an athlete, and an active member of the community, Whaley "learned how to balance all the demands, on and off the court, that a Division I athlete must face."(28) Whaley recognized that she could not achieve such balance without a strong support system: "With the help of the coaching staff, my determination and support from my family, I became an educated woman who learned she has something to offer others and who learned the value of giving back to whatever community I belong to."(29)

As impressive as their achievements are, Webb, Kipps, and Whaley are not alone. Every yeaar the NCAA "Woman of the Yea Award" honors a female student-athlete in each state who has been successful at athletics and academics and who has been a leader in her community.(30) These women recognize the importance of being physically fit, exercising their minds, and giving back to their communities. The NCAA does not have a comparable award for men. When questioned about why the NCAA does not have such an award, NCAA officials explained that male student-athletes generally do not lead such balanced lives.(31)

Another example of the emphasis placed on women leading well-balanced lives is the current promotion of the WNBA. Advertisements for the league stress how these professional women basketball players are not only athletes but are also doctors, lawyers, and teachers.(32) They are involved in community youth education and other service projects. They are able to balance this service and these careers with basketball, and they take time off to have children.(33)

The concern now is that with the development of the WNBA and other professional women's sports, more women will change their priorities and will adopt a one-dimensional mentality. There is evidence that such a shift is already occurring. At a panel discussion during the spring of 2000, women's basketball coach Gail Goestenkors of Duke University discussed how, for the first time in her coaching career, she sat in a recruit's home and could not sell Duke academics to a high school student-athlete.(34) Rather, this student-athlete wanted to know what type of system Coach Goestenkors had in place to assist her players in becoming professional athletes in the WNBA.(35)

While such female student-athletes are focusing more on professional leagues, they still need to be attuned to the educational aspect of their college careers, because they are not receiving financial rewards comparable to their male counterparts. For example, with the new collective bargaining agreement, WNBA player salaries averaged around $42,000 for the 1999 season.(36) The average NBA player earned $2.2 million during the 1996-97 season.(37) Additionally, in the Women's World Cup, each member of the victorious U.S. women's soccer team earned between $40,000 and $50,000 in bonuses.(38) In contrast, each U.S. male player would have received a bonus of $400,000 in the 1998 World Cup.(39) Such figures demonstrate the need for women to pursue careers outside of professional athletics.

Legislation such as Title IX(40) has assisted women in closing the gap in salaries and opportunities between male and female athletes.(41) Although Title IX has expanded the breadth of women's opportunities, individuals and organizations such as Donna Lopiano and the Women's Sports Foundation are still fighting for improvement and actual compliance.(42) These individuals and organizations promote the uniqueness of women's "well-rounded" values and the need to maintain the integrity of women's athletics, because they recognize the importance of encouraging a multiplicity of values.(43)

B. The Male Experience

   People forget the true goal: You're at college to get a degree.(44)

   I never graduated from Iowa. I was only there for two terms--Truman's and
   Eisenhower's.(45)

In contrast to the well-balanced women, men tend to be pushed in one direction, focusing on one sport, sacrificing their academic success for the dream of becoming a professional athlete. If they are talented or have potential, college coaches recruit them heavily and early. The courtship may start as early as junior high at summer camps and off-season tournaments.(46) Sebastian Telfair just completed eighth grade and is being watched by college and even professional coaches. He is said to be the best eighth-grade player in the country. The coaches shower the athletes with attention,(47) and the young men become so inebriated by the dream of playing college and professional sports that they forget about academics.

Increasingly, college athletes relinquish their academic eligibility prior to graduation in pursuit of professional …