Introduction

Title IX is part of the Educational Amendments of 1972 which prohibits discrimination based on sex in educational institutions that receive or benefit from federal funds. Virtually all private schools, colleges, and universities are included because they receive either direct funding or financial aid in the form of Pell Grants. Title IX states in part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.

Title IX refers to all areas of the institution, but it has been used primarily in an athletic context.

History

Congress enacted Title IX of the Educational Amendments on June 23, 1972. The deadline for elementary schools to comply with the athletic regulations was July 1976. High schools and colleges had to comply by July 1978.

As a result, athletic opportunities for females increased dramatically during the 1970s. In 1971, there were 294,015 girls playing high school sports (Reith, 1994, 4). By 1977-78, female participation was 2,083, 040. College opportunities also increased for women. Between 1971 and 1977, the number of women participating in varsity college athletics increased from 31, 852 to 64, 375. Athletic scholarships for women, unheard of before Title IX, have become more prevalent, numbering over 10,000 today (Reith, 1994, 4).

In 1983, the Supreme Court removed the applicability of Title IX to athletics programs in the case Grove City College v. Bell (NCAA, 1992, 2). Although this stalled the gains that women's programs had enjoyed, the setback was only temporary. The United States Congress reversed the decision with the Civil Rights Restoration Act of 1988.

Title IX's applicability to athletes was strengthened considerably with the case Franklin v. Gwinnett County Public Schools in 1992 (NCAA, 1992, 2). This case allowed plaintiffs to receive monetary damages and legal fees in Title IX cases. Before this ruling, schools were forced only to stop the discrimination. The threat of stronger punishment has forced many schools to evaluate their athletic programs and make greater efforts to comply with Title IX.

Athletic conferences have also decided to confront the Title IX problem. The Big 10 recently made it mandatory for all member schools to have at least a 60-40 male-female participation ratio. The Southeastern Conference followed suit by mandating that all member schools provide a minimum of two more female sports than male sports ("Decisions Related to Gender Equity"). This is an attempt to equalize participation rates in conferences where football rosters have traditionally thrown them off.

Compliance

Title IX is used to evaluate the overall male and female athletic programs. It compares the overall benefits given to the male athletes versus the overall benefits given to female athletes at a particular institution and is not a measure of equity on a sport-by-sport basis. Title IX is used to alleviate disparities in the overall athletic programs of both sexes. The Office for Civil Rights "define[s] a disparity as a difference, on the basis of sex, in benefits or services, that has a negative impact on athletes of one sex when compared to athletes of the other." (Reith, 1994, 7)

In December of 1979, the Department of Education issued a "policy interpretation" for Title IX. It essentially divides athletic issues into three categories of compliance. They are sports offerings, scholarship money, and all other issues (11 program areas). The categories are:

Accommodation of Interests and Abilities (sports offerings)
Athletic Financial Assistance (scholarship money)
Other Program Areas
- (1) equipment and supplies
- (2) scheduling of games and practice time
- (3) travel and per diem allowances
- (4) tutoring
- (5) coaching
- (6) locker rooms, practice and competitive facilities
- (7) medical and training facilities and services
- (8) housing and dining facilities and services
- (9) publicity
- (10) support services
- (11) recruitment of student-athletes

All of these areas should be equal and are grounds for non-compliance. The Accommodation of Interests and Abilities category, however, is the test generally used to judge compliance. Before briefly explaining what is required for compliance in each area, we feel it is necessary to explain a few basic points about Title IX.

Money is an important aspect of Title IX. Compliance is not simply a matter of expenditures, however. Due to differing costs for equipment and supplies, cost is not the main determinant of equity. Instead, equity is determined by the amount, quality, and suitability of equipment. All athletes should get the same quality of equipment, regardless of cost. For example, it is much more expensive to equip an ice hockey player than a cross country runner. It is completely equitable to equip the two athletes with the same level of equipment even though there is a cost disparity of a few hundred dollars. The important issues are the amount, quality, and suitability of the equipment and benefits. As a result, the cost of specific equipment is irrelevant.

It is important to note, however, that money has to be spent proportionately in all other areas. For example, if women athletes make up 48% of athletes, 48% of the scholarship money, coaches salaries, and recruitment money should go to women's athletics. It is also important to note that revenue earning sports such as men's football and basketball receive no special treatment from Title IX as a result of their earning power.

Booster club money is another tricky subject for Title IX compliance. If booster club funds are given to the football team, these additional funds will likely make the overall program funding unequal. An institution that receives booster club funding for its football team has to either allocate some funds originally meant for football to women's sports or has to find additional funding for the women's programs.

I. Accommodation of Interests and Abilities

This category has a three prong test of compliance. Institutions only have to comply with one of the prongs to be in compliance. According to Achieving Gender Equity, they may:

Provide participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment as full-time undergraduate students; or
Demonstrate a history and continuing practice of program expansion for the underrepresented sex; or
Fully and effectively accommodate the interests and abilities of the underrepresented sex. (NCAA, 1992, 9)

The first prong says that there have to be opportunities proportionate to enrollment. OCR does not use a statistical test to define proportionality. Many out-of-court settlements, however, have used five percentage points as an acceptable disparity.

The second prong says that the school has to have a history of expanding the program of the underrepresented sex. This typically means that it has to add new teams. Improving benefits for or adding additional students to already existing teams will not fulfill this prong. OCR has not set a standard for this prong either, but courts have generally considered actions taken in the last three years as the measure of compliance.

In order to fulfill the third prong, a school must offer the underrepresented sex a team for every sport in which there is sufficient interest and ability for a competitive team. Schools do not want to rely on this prong, however, because a group of organized women can decide that they want to have a team and sue the school. Schools almost always lose this type of case.

The three prong test of compliance is the standard test of Title IX compliance. Although there are other factors that we will describe, arguments about compliance always boil down to the three prong test.

II. Athletic Financial Assistance

This category of compliance simply says that athletic financial assistance must be proportionate to the participation of men and women intercollegiate athletes. For example, if 50% of the athletes are women, women should receive 50% of the scholarship money. OCR uses tests to determine if the differences are statistically significant. Experience has shown that three percentage points or less is an acceptable difference (NCAA, 1992, 11)

III. Other Program Areas

The last category of compliance consists of eleven program areas. They are generally in compliance if they are roughly equal between the sexes. For example, the equipment and supplies area is in compliance if male and female athletes receive an equal amount, quality, and suitability of equipment. Also, coaching complies if the sexes receive the same availability of coaching.

Enforcement

The Office for Civil Rights (OCR) within the U.S. Department of Education is responsible for enforcing Title IX. The compliance tools explained above are all OCR guidelines. It is important to note that there are actually two ways to approach a Title IX grievance. The first is to make an official complaint to the OCR. This will be followed by an investigation by OCR if it determines that the institution falls under Title IX.

The other option is to file suit in court. This option has become popular because of the possibility of receiving damages and because a court can put a restraining order on the school which could stop the school from cutting a sport. The important thing to realize is that judges have some latitude in interpreting Title IX. Although they generally follow OCR guidelines, they are not bound by them.

It is also important to realize that schools have historically lost most cases or been forced to settle out of court to avoid a loss.

Government 375: Educational Reform and Ideology