Chalk Talk-Title IX: Is It Time for a Change?

By Murr, Andrew | Journal of Law and Education, October 2003 | Go to article overview

Chalk Talk-Title IX: Is It Time for a Change?

Murr, Andrew, Journal of Law and Education

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.


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. In determining whether equal opportunities are available, factors to be considered include:

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;

(2) The provision of equipment and supplies;

(3) Scheduling of games and practice times;

(4) Travel and per diem allowance;

(5) Opportunity to receive coaching and academic tutoring;

(6) Assignment and compensation of coaches and tutors;

(7) Provision of locker rooms, practice and competitive facilities;

(8) Provision of medical and training facilities and services;

(9) Provision of housing and dining facilities and services;

(10) Publicity.14

Also under 34 C.F.R. [sec] 106.41(c), unequal aggregate expenditures for members of each sex will not constitute noncompliance with Title IX, but may be considered when determining the equality of opportunity for members of each sex.15


Since the passage of Title IX in 1972, many doors of athletic opportunities have been opened for females. These opportunities have increased the number of females in college through partial and full scholarships which were previously available only to men. Thirty years ago, women earned only 44% of all bachelor's degrees, as compared to 57% in 2000.16 In 1971, only 1% of dental degrees and 9% of medical degrees went to women. Today, women earn 40% of dental degrees and 46% of medical degrees.17 Title IX has also significantly increased the opportunities for women and girls to participate in athletics. In 1971, 294,000 females participated in high school sports. Last year, that figure exceeded 2.7 million, an 847% increase.18 In the past 20 years, colleges across the country have created over 3,800 new female sports teams.19

Title IX has not only led to an increase in the number of female athletes, but also an increase in interest in female athletics as evidenced by the Women's National Basketball Association and Women's United Soccer Association.20 Arguably, in the 1970's, few people could have predicted the success and popularity of these women's sports associations.


Although Title IX was enacted in the mid 1970's, the Act's accompanying case law was slow to develop.21 There are several explanations for this. First, the statute itself provided a three-year period for educational institutions to comply. Then, the 1979 Policy Interpretation by the Department of Health, Education and Welfare allowed for the "history of program extension" exception, discussed infra, which provided additional time for schools to comply.22 Furthermore, in 1984, the Supreme Court held in Grove City College v. Bell that Title IX did not apply to programs within college, such as athletics, which did not directly receive federal assistance.23 In response to this ruling, Congress, in 1987, enacted the Civil Rights Restoration Act which provided that all aspects of institutions, who received federal funds, were subject to Title IX, including athletics.24 The budget crunch of the early 1990's forced many educational institutions to eliminate athletic programs in an attempt to save money and prompted many suits to be filed under Title IX. Each of the three cases below arose out of such budget saving attempts.

A. Cohen v. Brown University

Cohen v. Brown University was the first major case that discussed the proportionality standard. In that case, student members of the women's gymnastics and Volleyball teams which had been demoted from full varsity status to intercollegiate club status brought suit against Brown University. In 1991, Brown University announced that in an attempt to control spending, it was going to drop four sports from varsity status to intercollegiate clubs. Intercollegiate clubs could still play against varsity teams from other colleges but would not receive financial assistance from the college as the varsity teams enjoyed.25 Two female teams, Volleyball and gymnastics, and two male teams, golf and water polo, were affected. The savings from cutting the women's teams was approximately $61,000 and from the men's two teams was $15,000.26 Following these cuts, women had approximately 37% of the athletic opportunities while men had 63%. These figures are essentially the same as they were before the cuts.27 Brown University's student population was 52% men and 48% women.28

The members of the women's Volleyball and gymnastic teams brought suit arguing that Brown University was in violation of Title IX. The district court judge held that the 13% disparity between female athletes and total female enrollment at Brown University prevented Brown from meeting the proportionality test.29 And because Brown was eliminating women's teams, the judge found that Brown did not maintain a continuing practice of intercollegiate program expansion of women's teams or that Brown has fully and effectively accommodated the abilities and interests of the females.30 The district judge granted an injunction requiring Brown to reinstate the two women's teams.31

Brown University appealed arguing that a school satisfies Title IX if it allocates athletic opportunities to women in accordance with the ratio of interested and able women to interested and able men.32 In essence, it argued that Title IX, as applied by the district court, would require quotas in excess of women's relative interests and abilities. The appellate court affirmed, finding that Brown had in fact created a significant gender based disparity involving athletic teams and had failed to show a history and continuing practice of expansion of opportunities for females at the university.33 The appeallate court further found that Brown's relative interests interpretation, which blames the gender-based disparity on lack of female interest in sports, as completely contrary to Congress's clear intention that schools not use federal funds to perpetuate gender-based discrimination.34

Cohen's holding served as a wake-up call to other schools that the proportionality test is to be measured against the total student body and not be established in relation to the relative interests of males and females in sports.

B. Favia v. Indiana University of Pennsylvania

Favia v. Indiana University of Pennsylvania (IUP) further strengthened the holding of Cohen. In 1991, IUP announced that it intended to eliminate two female and two male varsity teams due to budgetary concerns.35 Members of the female gymnastics and field hockey teams, the two women's teams targeted for elimination, brought a class action suit against IUP alleging that the proposed elimination was in violation of Title IX.36 IUP's undergraduate student body was comprised of 6,003 students, 55.6% of those being female.37 The numbers of sports teams were equal, nine each, but the male teams fielded 313 slots while the women had only 190 slots.38 The district court ruled in favor of the plaintiffs and issued an injunction preventing IUP from eliminating the female teams.39 IUP responded by proposing to replace the gymnastics team with a female soccer team which would actually increase the total of female sports participants at IUP. The district court was still not impressed and refused to modify its original injunction.40

The appellate court affirmed. The court held that by replacing the gymnastics team, which saves $150,000, with a 50 member soccer team, which costs $50,000, the funding gap that results could be viewed as moving the college further away from Title IX compliance.41 And even if one were to put the funding disparity aside, IUP still could not meet any of the prongs of the three-part compliance test.42

Favia strengthened Cohen's holding that in the absence of continuing program expansion, "schools must either provide athletic opportunities in proportion to gender composition of student body or fully accommodate interested athletes among the under-represented sex."43

C. Roberts v. Colorado State Board of Agriculture

What exactly would constitute "substantial proportionality" remained unclear until the Tenth Circuit addressed that issue in Roberts v. Colorado State Board of Agriculture. In that case, members of Colorado State University's (CSU) women's softball team brought suit against CSU for violation of Title IX after it had announced plans to eliminate the program.44 Following the elimination of the softball team, the difference between enrollment and athletic participation for females at CSU was 10.5%.45 The district court found in favor of the plaintiffs and issued a permanent injunction ordering CSU to continue to offer women's softball.46

On appeal, CSU argued that as a matter of law, 10.5% disparity is substantially proportionate.47 The appellate court found otherwise and affirmed the decision. Although the court did not state what minimum percentage difference would be substantially proportionate, it did state that 10.5% was not and that it was irrelevant if other institutions had a greater disparity.48

Most Title IX cases are instituted when colleges are eliminating programs in attempts to cut costs. When a college eliminates a program, by definition, it cannot satisfy the last two prongs of the three-part test. Therefore, in these situations, the substantially proportionate test of prong three becomes the dominant test. However, when females routinely are a majority of the student body, colleges are finding it financially difficult to offer sports opportunities to this segment of its student body.


In an effort to bring some clarity and common sense to Title IX compliance, secretary of Education Ron Paige established the Commission on Equal Opportunity in Athletics to study Title IX in June, 2002.49 The stated purpose of this panel was to collect information, analyze the issues and to obtain public input into improving and studying the current application of the Title IX.50 The Committee was formed to answer and clarify many questions that college administrators and others had regarding Title IX compliance. The Department of Education found that these questions usually fell into one of two categories. First, many college administrators claimed that the U.S. Department of Education had failed to provide clear guidance on how postsecondary institutions could comply with Title IX standards and policy interpretations. Second, while many claimed that the Department's Office of Civil Rights had not effectively enforced Title IX, others argued that the manner in which the Department actually did enforce the law needlessly resulted in the elimination of some men's teams.51

The Committee was comprised of fifteen members with varied backgrounds including coaches, athletic directors, faculty, and other persons with special expertise in intercollegiate and secondary athletics or issues of equal educational opportunity.52 For example, the two co-chairs of the committee were Cynthia Cooper-Dyke, a former coach and player for the Women's Basketball Association, and Ted Leland, the director of athletics at Stanford University.53 The membership of the Committee was intended to be balanced to represent the wide range of perspectives with regard to Title IX.

The Committee expended a great deal of effort and money to ensure that it would receive adequate information to make intelligent and informed recommendations to the Secretary of Education.54 Expert testimony from over fifty witnesses was heard during four town hall meetings held across the country.55 Efforts were made to ensure that these witnesses would equally represent the competing views of how Title IX should be enforced.56 Hundreds of other citizens came to the meetings to make comments as well, and thousands of persons contacted the Commission by email, phone, or letters.57

At the conclusion of this fact-finding process, the Commission adopted twenty-three recommendations.58 Four themes emerged to frame the Commission's recommendations: commitment, clarity, fairness, and enforcement.59 There was much consensus on these recommendations. In fact, 15 of the 23 recommendations were approved unanimously.60

Before these recommendations were promulgated, opponents were certain that the Bush Administration would gut the proportionality test of Title IX. But in reality, only two of the recommendations, 17 and 19, if adopted by President Bush, would affect the proportionality standard. And even these two, if fully implemented, would not substantially change how Title IX has been applied for the past decade.

A. Recommendation Seventeen

Recommendation Seventeen, if fully adopted, would bring a common sense approach to Title IX. It provides that:

For the purpose of calculating proportionality with the male/female ratio of enrollment in both scholarships and participation, these ratios will exclude walk on athletes as defined by the NCAA. Proportionality ratios will be calculated through a comparison of full or partial scholarship recipients and recruited walk-ons.61

A walk-on athlete is one who participates in a sport without a scholarship.62 In other words, walk-on athletes cost the university absolutely nothing. The Commission heard testimony that a greater number of male athletes walk on to sports teams than do their female counterparts.63 Unfortunately, this has led schools to limit the number of men allowed to walk-on to teams in order to comply with Title IX.64 Such roster management, as it is called, controls the appearance of disproportionate participation, but does not create any corresponding benefit to the females.65 The Commission found that even though the interest between men and women taking advantage of walk-on opportunities is not equal, no one should be discouraged from walking on for artificial reasons.66 "Artificial reasons may include: 1) cutting down on the number of opportunities available to one sex in order to ensure compliance with the proportionality part of the three-part test, and 2) avoiding the creation of new opportunities for women by limiting the number of men who can participate."67

Such a situation where one sex loses the opportunity to walk on to teams whereas the other sex gains no benefit is not the intent of Title IX. This recommendation simply aims to eliminate these artificial limitations and will not affect the overall composition of an institution's athletics since walk-on athletes constitute only a small percentage of an institutions total athlete population.

B. Recommendation Twenty

The other recommendation that may have a small impact on the proportionality standard is Recommendation Twenty. It provides that

The Office for Civil Rights should 'study the possibility of allowing institutions to demonstrate that they are in compliance with the third part of the three-part test by comparing the ratio of male/female athletic participation at the institution with the demonstrated interests and abilities shown by regional, state or national youth or high school participation rates or national governing bodies, or by the interest levels indicated in surveys of prospective or enrolled students at that institution.68

During its fact-finding, the Commission heard testimony indicating that nontraditional students, such as women who have re-entered college after raising a family, are less likely to participate in athletics than other students.69

This recommendation simply recognizes this phenomenon and is aimed at allowing institutions to comply with Title IX where it would be difficult to do so based on large numbers of nontraditional students who are extremely unlikely to take advantage of any athletic opportunities.70 For example, under current Title IX guidelines, if a student body is 50% female and of that 50%, 4% of the females are non-traditional, the school must still provide athletic opportunities in the ratio of 50:50. But under Recommendation Twenty, the school's ratio could be 50:46 in favor of the men. Although it seems disproportionate at first, when one takes into consideration that most forty-year-old students are not interested in playing field hockey or basketball, it is fair to take this into account and to adjust athletic opportunities accordingly.

Of course, these recommendations are not binding but serve to counsel and inform the Secretary of Education so as he can make intelligent recommendations to President Bush.


There was much speculation that the Commission was going to recommend abolishing the "substantially proportionate" standard. However, the Commission simply recommended measures that were intended to clarify how educational institutions can comply with Title IX. School administrators and coaches clamored for this Commission because they were having difficulty understanding the Title IX regulations.71 These recommendations will only help to improve compliance by clarifying what exactly Title IX requires and strengthen opportunities for women to participate in athletics by reaffirming the government's support for Title IX.

No one has argued that Title IX should be abolished. However, some did express concern that it was unfair and that men's teams were being eliminated in order to comply with the regulation. Those commentators believe that the Commission did not go far enough to protect men's teams from elimination. They compare Title IX to a quota system.72 Their concerns were adequately addressed in the Committee's recommendations, specifically Recommendation Five which states that eliminating teams in order to comply with Title IX is disfavored.73

Title IX has been a great catalyst for women seeking parity with men in athletics. The recent recommendations only help to bring some common sense to the application of its laws. At most, these recommendations will result in a slight change of how Title IX is applied but they do not represent any substantial change unless Secretary Paige and President Bush completely ignore the Committee's recommendations. The potential changes to the proportionality standard if Recommendations Seventeen and Twenty are fully adopted should result in a more reasonable approach to ensuring equal athletic opportunities for women as well as men.


Chalk Talk is a section of the Journal devoted to important current education law subjects treated in less than article-length fashion. Chalk Talk is meant to highlight contemporary issues that later on may merit significantly greater coverage.

1. Erik Brady, Major Changes Debated for Title IX (Dec. 19, 2002).

2. Id.

3. Department of Education (Feb. 28, 2003).

4. 20 U.S.C.A. [sec] 1681(a)(1972).

5. Id.

6. 12 S.Cal. Rev. L. & Women's Stud. 31 (Fall 2002).

7. See George A. Davidson, Title IX: What is Gender Equity, 2 Vill. Sports & Ent. L. F. 25, 38 (1995).

8. Id.

9. Id. at 33.

10. Cohen v. Brown, 991 F.2d 888, 897 (1st Cir. 1993).

11. Davidson, 2 Vill. Sports & Ent. L. F. at 38 (1995).

12. Id.

13. Kimberly Yuracko, One for You and One for Me: Is Title IX's Sex-Based Proportionality Requirement for College Varsity Athletic Positions Defensible?, 97 Nw. U.L. Rev. 731, 731 (2003).

14. 34 C.F.R. [sec] 106.41(c) (1993).

15. Id.

16. Dept. of Ed., "Open to All" Title IX at Thirty (Feb. 28, 2003).

17. Id.

18. Id.

19. Id.

20. Brady, supra n. 1.

21. Davidson, supra n. 7 at 37.

22. Id.

23. Grove City College v. Bell, 465 U.S. 555 (1984).

24. Pub. L. No. 100-259, 102 Stat. 28 (1988).

25. Cohen, 991 F.2d at 892 (1st Cir. 1993).

26. Id.

27. Id.

28. Id.

29. Id. at 897.

30. Id.

31. Id. at 893.

32. Id. at 899.

33. Id. at 901.

34. Id.

35. Favia v. Ind. U. of Pa., 7 F.3d 332, 335 (3d Cir. 1993).

36. Id. at 334.

37. Id. at 335.

38. Id.

39. Id.

40. Id.

41. Id. at 343.

42. Id.

43. Id. at 343-344.

44. Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 826 (10th Cir. 1993).

45. Id. at 829.

46. Id. at 826.

47. Id. at 829.

48. Id. at 830.

49. Department of Education, Open to All: Title IX at 30 (Feb. 28, 2003).

50. Id.

51. Id.

52. Id.

53. Id.

54. Id.

55. W.

56. Id.

57. Id.

58. Id.

59. Id.

60. Id.

61. Id.

62. Id.

63. Id.

64. Id.

65. Id.

66. Id.

67. Id.

68. Id.

69. Id.

70. Id.

71. Id.

72. Ending Discrimination with Discrimination (June 25, 2002).

73. Department of Education, Open to All: Title IX at 30 (Feb. 28, 2003).

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