History
Title IX
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:
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.