Essay:Title IX

The proportionality test is prong one of a departmental interpretation of Title IX, a “guidance” that was never approved pursuant to formal rulemaking. The gender quota goals embodied in this “proportionality test” are hurtful to women as well as men. This guidance requires that colleges:

• have the same proportion of girls in sports as enrolled in the school,
• are expanding the opportunities for girls in sports, or
• are satisfying the entire interest of girls to participate in sports.

But when budgetary constraints cause a college to eliminate merely one women’s spot from a team, then the second and third prongs of the proportionality test cannot be satisfied. The school can only satisfy the above test by equating the ratio of women on sports teams to women enrolled in the school. Schools have then eliminated men’s teams and replaced small-squad women’s teams like gymnastics and fencing with big-squad women’s teams like crew (rowing) and equestrian. This is harmful to the women athletes in the small-squad sports, and extremely harmful to the men.

For example, James Madison University recently eliminated women's gymnastics, women's archery and women’s fencing in an attempt to satisfy the quota requirement of the proportionality test.[2] The quota requirement has forced the reduction in women’s gymnastics from 190 teams to only 90 in the 1980s and ‘90s. See United States General Accounting Office (GAO), “Intercollegiate Athletics, Four-Year Colleges’ Experiences Adding and Discontinuing Teams,” GAO-01-297, at 12 (Mar. 2001). As a predictably harmful result, in the 2000 Olympics the United States failed to win a single women’s gymnastics medal, and in 2004 the only gymnastics medals were won by private club, non-Title IX athletes.

Serious women athletes, such as women gymnasts who have trained a decade prior to college, are thereby displaced in favor of attempts to recruit less-interested women into crew and other large-squad teams. Women's rowing first became an NCAA sport in 1997, but 85 colleges had quickly added it to their programs within a few years. Is this because of an outpouring of interest by women athletes? Not at all. In fact, many college scholarships are given to women who had never rowed before, simply to up the numbers. Juliet Macur, "Never Rowed? Take a Free Ride," N.Y. Times, D1 (May 28, 2004). The result is that the most serious women athletes are being shortchanged by the quota in favor of students looking for a “free ride,” in the words of the New York Times article.

Meanwhile, the disastrous effect of the quota on male athletes hardly needs repeating. At Howard University, for example, male enrollment has dropped to less than 40% of its student body, as the quota requires elimination of men’s teams. In 2002, Howard University simultaneously eliminated both its varsity wrestling and baseball teams, leaving in the lurch many athletes in those sports. Its wrestling coach Wade Hughes observed, “Howard University would like to look at this as a non-Title IX issue, but from my perspective, it is a Title IX issue in gender equality.” Mark Asher, “Howard Drops Baseball, Wrestling,” Washington Post, D1 (May 23, 2002). Athletic Director Sondra Norrell-Thomas said this was due to a lack of facilities, but the wrestling coach pointed out that all the sport needs is a simple wrestling room, which they obviously had. Id.

There are many similar tragedies. “Enrollment at [the University of Honolulu]-Manoa is 42 percent male and 58 percent female; thus, UH-Manoa has no men’s soccer team or water polo team, but UH provides soccer and water polo teams for women; thus, many local boys who would have relied on those positions to attend college join thousands of minority men nationwide who are not able to go to college because of Title IX.” Gerald Nakata, “Title IX is a Disservice to Males,” The Honolulu Advertiser, 7A (Mar. 8, 2005).

The elimination of the men’s teams has become a vicious cycle, further discouraging men from applying to and attending college. That is not good for men, or women.

Sports Illustrated reported on the obvious, that men are far more interested in sports than women are:

Over a 15-year period between 1980 and ‘94, the National Center for Educational Statistics polled high school seniors and found that 20 percent of males were more interested in participating in sports than females, and more than twice as many exercised vigorously on a daily basis.

In collegiate intramural sports, whose numbers are largely determined on the basis of interest, 78 percent of participants are male, 22 percent female. Put another way, most guys have a more difficult time adapting to life without sports than most girls do.

Yet there are some 580 more women’s teams at NCAA schools today than men's teams, a disparity that is likely to continue to grow. Faced with budgetary cuts last summer, the board at Rutgers University elected to eliminate six teams, five of which were men’s: lightweight and heavyweight crew, tennis, swimming and diving, and fencing.

The audience for watching sports, even women’s sports, is also overwhelmingly male, providing further confirmation of the wide difference in interest. “The audience for this year’s championship game in women’s college basketball was 57 percent male, according to Nielsen Media Research. Annika Sorenstam’s appearance in the Colonial golf tournament last month may have been a giant leap for women, but 65 percent of the witnesses were men.”

It is long overdue to replace the quota in the proportionality test with an interest-based test that encourages colleges to provide sports teams based on interest. The test should only penalize schools for unjustified interference with opportunities based on real interest by men and women. Institution of the survey is a great start and the U.S. Commission on Civil Rights should consider recommending the end to the proportionality test entirely.

Sexual Harassment and Assault

Many colleges and universities have established general procedures for handling cases of student misconduct on campus. Most of those have also established counseling services for victims of sexual harassment or assault. Unfortunately, victims of sexual harassment or assault can be either male or female. Yet, following some creative legal advocacy and court litigation, the issue of how colleges handle sexual assault cases is now considered a Title IX compliance issue, and the United States Department of Education is conducting compliance investigations at a large number of colleges. This has put pressure on colleges to step back from their campus judicial systems and counseling in favor of forwarding all alleged assaults to the local criminal justice authorities.