Since President Bush took office, there has been a great deal of attention focused on the future of Title IX and its application to athletic opportunities for female students.1 President Bush has made no secret that he is in favor of making some changes to this law, specifically the proportionality requirement.2 Soon after taking office, Bush created a Commission on Opportunity in Athletics, whose members include some very influential proponents and opponents of Title IX. In February of 2003, after extensive public hearings, the Commission issued its findings and recommendations regarding the viability of Title IX as it has been interpreted up to this point in time.3
The purpose of this note is to present an overview of Title IX and of how the courts, to this point, have chosen to interpret it with regard to equal opportunities for participation in athletics between the sexes. Next, this note will examine the three major cases that have shaped Title IX's application. Finally, it will discuss the Commission on Opportunity in Athletics and its findings and recommendations and reactions to them.
I. WHAT IS TITLE IX?
Title IX of the Education Amendments of 1972 prohibits sex discrimination in education programs, both at high school and college levels, or activities that receive federal financial assistance.4 Title IX specifically provides that "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."5 The Department of Education enforces these rules and regulations through its Office for Civil Rights.6
At the time of Title IX's enactment, Congress delegated regulatory authority to the Department of Health, Education and Welfare (HEW).7 The regulation implementing Title IX became effective when President Ford signed it into law in 1975.8 Schools were then given three years to achieve compliance. Rampant confusion as to the appropriate interpretation of the regulations resulted in HEW issuing a Policy Interpretation in 1979.9 The Policy Interpretation stated three means by which a school could satisfy Title IX's mandate:
1. The school provides sports participation opportunities to males and females in numbers that are substantially proportionate to their respective enrollments;
2. Where the members of one sex have been and are underrepresented among intercollegiate athletes, a school can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of the underrepresented sex;
3. Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion, the school can show that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.10
The proportionately requirement stated in section (1) above has emerged as the only possible means of Title IX compliance when the school is eliminating the number of athletic programs it had previously offered to male and female students.11 This is because a university that is cutting back on its sports offerings cannot therefore demonstrate program expansion as required under section (2) above. It also cannot show full accommodation under section (3) because when female sports teams are being eliminated, the members of those teams are not being fully accommodated.12 The proportionality requirement has become the dominant and most controversial for schools that attempt to eliminate sports teams to save money and at the same time try to comply with Title IX.13
An equal opportunity analysis of a school that offers interscholastic, intercollegiate or intramural athletics does not simply inquire whether there are the same numbers of female and male sports slots available. …