Academic journal article Journal of Law and Education

Staring Down the Elephant: College Football and Title IX Compliance

Academic journal article Journal of Law and Education

Staring Down the Elephant: College Football and Title IX Compliance

Article excerpt

I. INTRODUCTION

Imagine a group of football players kneeling around the head coach after a pre-season practice. The coach waits for silence and then asks, quietly, "How many of you seniors wanna play on Sunday next year?" A dozen young men raise their hands. "Well," he continues, a little louder now, "You'd better work harder than you did today, because, just like the National Football League teams, we are cutting our roster to 52 players at the end of preseason practice!" Meanwhile, across campus, the men's wrestling and baseball coaches inform their teams that they will have 23 full scholarships for each team rather than 5 partial scholarships.

Eric Bentley asks readers of JLE article, Title IX: The Technical Knockout for Men's Non-Revenue Sports, to imagine a men's wrestling coach telling his players that "In an effort to comply with Title IX, the University has decided to drop our wrestling program.'" Bentley argues that over-reliance on the proportionality prong of Title IX has led institutions to eliminate men's "non-revenue" programs, such as wrestling and gymnastics, and that institutions violate Title IX by making those cuts.2 Bentley proposes a new litigation strategy for claims that elimination of men's non-revenue sports violates Title IX.3

This article points out that Bentley relies on the incorrect interpretation of Title IX and articulates why his proposed solution is legally unsupportable and practically flawed. This article contends that, among other non-discriminatory reasons, an unwillingness to change the status quo of college football motivates elimination of men's wrestling, gymnastics and other "non-revenue" sports. The article recommends changes to college football that will comply with Title IX's proportionality prong while decreasing the chances that more men's sports will be cut.

II. TITLE IX AND SUBSTANTIAL PROPORTIONALITY

Title IX of the Education Amendments of 1972 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."4 The U.S. Department of Education's Office for Civil Rights (OCR) reviews Title IX compliance in athletic programs under a three-prong test. Schools are deemed compliant if they meet any one of the following standards:

... 1) [T]he intercollegiate- level participation opportunities for male and female students at the institution are "substantially proportionate" to their respective full- time undergraduate enrollments, 2) the institution has a "history and continuing practice of program expansion" for the underrepresented sex, or 3) the institution is "fully and effectively" accommodating the interests and abilities of the underrepresented sex.5

A 1996 letter accompanying a Clarification from OCR "described substantial proportionality as a 'safe harbor' for Title IX compliance."6 Many schools interpreted this letter to mean, "erroneously, that they must take measures to ensure strict proportionality between the sexes. In fact, each of the three prongs of the test is an equally sufficient means of complying with Title IX, and no one prong is favored."7 Despite OCR's reminder "that '[institutions have flexibility in providing nondiscriminatory participation opportunities to their students and that OCR does not require quotas,'"8 many schools rely on the substantial proportionality test because they perceive it to be "the path of least resistance."9

Bentley misleads readers by incorrectly interpreting Title IX throughout most of his article. Bentley suggests that courts faced with claims that elimination of a men's team violates Title IX should begin their review by asking, "[W]ere these men denied participation opportunities in their sport on the basis of their sex?"10 Though Bentley poses the question correctly at one point," he bases his argument on the notion that Title IX mandates schools to maintain certain sports teams. …

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